On appeal from the Superior Court, Law Division, Bergen County.
Allcorn, Pressler and Furman. The opinion of the court was delivered by Pressler, J.A.D.
Plaintiff Gabriela Smelkinson appeals from an order denying her leave to amend her complaint to seek personal injury protection benefits (PIP) pursuant to the New Jersey Automobile Reparation Reform Act (No-Fault Law), N.J.S.A. 39:6A-1 et seq. It appears that if plaintiff is not entitled to relief from that order, she will be irrevocably barred from recovering her considerable medical expenses. We have concluded that considerations of fairness and equity, consistent with our rules of procedure, require that relief should not be here withheld.
In July 1974 plaintiff was a business invitee on the premises of defendant Ethel and Mac Corporation, the operators of a recreational facility. While sunbathing she was struck by an automobile owned and operated by defendant Herbert Ward and insured by Gateway Insurance Company. She sustained several fractures as a result of the accident and has incurred medical expenses of approximately $4,500.
Suit was commenced in May 1976 against both Ward and the Ethel and Mac Corporation. The claim as against the corporation was ultimately settled and that party is not here involved. With respect to defendant Ward, plaintiff was unable to effect personal service upon him by reason of his unknown whereabouts and consequently obtained an order pursuant to R.
4:4-4(i) permitting substituted service to be made on Ward's insurance carrier.*fn1 The complaint against Ward recited the basic foregoing facts regarding the occurrence of the accident as well as plaintiff's incurring of substantial medical expenses, and demanded judgment compensating her for all her damages. An answer was filed by the carrier on Ward's behalf and the matter proceeded routinely through pretrial discovery.
Shortly before trial plaintiff's attorney, who had represented her throughout, apparently realized for the first time that the No Fault Law, enacted in 1972, had an effect on the common-law automobile negligence action insofar as medical expenses are involved. His response to this realization was the motion here in question whose gravamen was the seeking of an order amending the complaint to assert a right of PIP benefits directly against Ward and to bifurcate trial of the PIP claim and the general damages claim. The motion was denied. Plaintiff and Ward thereafter settled the general damages claim by entry of final judgment expressly preserving plaintiff's right to appeal from the denial of her motion to amend.
The controlling and elementary propositions respecting plaintiff's claim for her medical expenses are perfectly clear. Her status when the accident occurred was that of a pedestrian, defined by N.J.S.A. 39:6A-2(h) as "any person who is not occupying a vehicle propelled by other than muscular power." N.J.S.A. 39:6A-4 requires every automobile liability policy to provide for the payment by the carrier of designated PIP benefits, regardless of fault, to specified categories of persons having particularly described relationships to the named insured or the insured vehicle, including "pedestrians sustaining bodily
injury caused by the named insured's automobile." Plaintiff was thus absolutely entitled to the recovery of PIP benefits, including her medical expenses, from Gateway as the liability insurer of the vehicle which struck her while she was a pedestrian.*fn2 It is also clear that the right thus afforded plaintiff by the No Fault Law to recover her medical expenses directly from Gateway was in substitution of her former right to recover them from the insured tortfeasor himself and constituted, moreover, the exclusive remedy insofar as the medical expense claim arose out of the automobile accident. N.J.S.A. 39:6A-12. And see Cirelli v. Ohio Cas. Ins. Co. , 72 N.J. 380, 387 (1977); Aetna Ins. Co. v. Gilchrist Brothers, Inc. , 85 N.J. 550, at 562 (1981).
Thus, the proper prosecution of plaintiff's rights would have been by way of a PIP claim directly against Gateway and a negligence action against Ward limited to claim for recovery of those elements of personal injury damages not encompassed by available PIP benefits. It was, of course, the failure of plaintiff's attorney to appreciate these consequences of the No Fault Law which was responsible for the procedural morass with which the trial judge was faced, since even at that point in the litigation plaintiff did not seek to join Gateway or make a direct claim against it, but rather continued under the misapprehension that the tortfeasor was responsible for the medical expenses. The question, then, is whether that misapprehension has rendered plaintiff's PIP claim against Gateway now irretrievable. We think not.
We recognize, first, that since plaintiff's PIP claim arose in 1974, a new and separate action against the carrier would now be barred by N.J.S.A. ...