On appeal from Superior Court of New Jersey, Law Division, Cumberland County.
Antell and Lane. The opinion of the court was delivered by Lane, J.A.D.
This appeal was argued before Judges Antell and Lane. Thereafter the attorneys for the parties consented to have Judge Seidman participate in the decision. The decision and this opinion are by Judges Seidman, Antell and Lane.
Albert Riccio, plaintiff's husband, purchased a family automobile policy from defendant insuring a 1973 Oldsmobile, a 1974 Chevrolet and a 1976 Cadillac. He paid a premium for Option 5, additional personal injury protection coverage for the 1973 Oldsmobile and the 1974 Chevrolet. On February 10, 1979, while driving one of the automobiles, he was killed in an automobile
accident. Plaintiff instituted suit seeking the immediate payment of the additional survivor benefits for income continuation benefits and essential services benefits, with interest and counsel fees (count 1); payment of survivor benefits for income continuation benefits and essential services benefits under the coverage of the 1973 Oldsmobile and also under the coverage of the 1974 Chevrolet (count 2); income continuation benefits in her own behalf (count 3) and punitive damages (count 4). On plaintiff's motion for summary judgment the trial judge issued a written opinion holding that plaintiff was not entitled to income continuation benefits in her own behalf and that the additional survivor benefits for income continuation benefits and essential services benefits on behalf of her husband were to be paid on a weekly basis and not as a lump sum. Upon defendant's motion for summary judgment an order was entered dismissing count 1, count 2, and count 4 and denying the motion as to count 3. The order further provided that the benefits became due and payable on April 2, 1979 and directed that interest be paid in the amount of $72.35. A counsel fee of $150 was awarded. Subsequently, plaintiff dismissed count 3.
On appeal plaintiff argues:
(1) Survivor benefits pursuant to section 4(d) or section 10 of the No Fault Act are to be paid on a lump sum basis.
(2) Since plaintiff's decedent paid two premiums for Option 5 coverage, to that extent plaintiff should recovery two survivor benefits.
N.J.S.A. 39:6A-4 d. provides:
Survivor benefits. In the event of the death of an income producer as a result of injuries sustained in an accident entitling such person to benefits under section 4 of this act, the maximum amount of benefits which could have been paid to the income producer, but for his death, under section 4 b. shall be paid to the surviving spouse, or in the event there is no surviving spouse, then to the surviving children, and in the event there are no surviving spouse or surviving children, then to the estate of the income producer.
In the event of the death of one performing essential services as a result of injuries sustained in an accident entitling such person to benefits under section 4 c. of this act, the maximum amount of benefits which could have been paid such person, under section 4 c., shall be paid to the person incurring the expense of providing such essential services.
In Muschette v. Gateway Insurance Co. , 76 N.J. 560 (1978), the court said:
. . . It is clear that income continuation and essential services benefits are payable weekly while the injured person is alive. N.J.S.A. 39:6A-4 b. and c. The point not having been argued, and the question being debatable, we need not and do not decide whether survivor benefits, either basic (Section 4 d.) or additional (Section 10) are to be paid weekly or in a lump sum. [at 565]
A survivor is entitled to the maximum amount payable. In Maros v. Transamerica Ins. Co. , 76 N.J. 572 (1978), the court held that the survivor is entitled absolutely to payment in full of a maximum amount which could have been paid as first-party "survivor's benefit" to the injured person had he lived.
Defendant urges that the legislative intent can be found by the use of the tense of the verb "incur" in N.J.S.A. 39:6A-4 d. That section provides in part that in the event of the death of one performing essential services, the maximum amount of benefits shall be paid to the person "incurring the expense of providing such essential services." Defendant maintains that this signifies that the Legislature meant that payments are to be made to the person who is actually incurring bills for expenditures at the time that such person is doing so, but that this does not say that such payments are to be made in a lump sum.
The trial judge in Maros v. Transamerica Ins. Co. , 143 N.J. Super. 307, 313 (Law Div.1976), held that to require plaintiff in that case to submit each bill for approval for the remainder of her life was contrary to the legislative intent of the statute and to the goal of prompt and efficient adjustment of claims. However, on appeal this court held that the unexpressed premise of the statutory provision in issue here was that the survivor would receive nothing more than indemnification for loss, adding that requiring the wife to submit claims for reimbursement was nothing more than would have been required of her husband, in whose place she stood, had he lived. 150 N.J. Super. 157, 160 (App.Div.1977). In reversing the Appellate Division decision, the Supreme Court said the language "the person incurring the expense" was intended solely to identify the payee and not to create conditions precedent to the status of the payee. 76 N.J. 576-577.
When interpreting a statutory mandate, a court must look to the intent of the Legislature. Levin v. Parsippany-Troy Hills Tp. , 82 N.J. 174, 182 (1980); State v. Madden , 61 N.J. 377, 389 (1972). Statutory construction will turn on the breadth of the objectives of the legislation and the common sense of the situation. Jersey City Chapter, Property Owners, etc., Ass'n v. City Council , 55 ...