On appeal from Superior Court of New Jersey, Law Division, Sussex County.
Seidman, Antell and Lane. The opinion of the court was delivered by Lane, J.A.D.
Plaintiff appeals from an order dismissing its complaint to vacate a decision of arbitrators denying it contribution from defendant of 50% of payments plaintiff made for PIP benefits on behalf of Richard W. Boland. The issue is whether an automobile policy can legally contain a provision limiting liability for PIP benefits where the injured party has another source from which PIP benefits can be obtained. We reverse.
Richard W. Boland was insured by plaintiff from July 1, 1977 to January 1, 1978 under an insurance policy which provided personal injury protection. His mother, Eunice M. Boland, was insured by defendant from April 13, 1977 to April 13, 1978 under an insurance policy which also provided personal injury protection. On July 9, 1977 Richard W. Boland was single and residing at 91 Levitt Avenue, Bergenfield, with his mother. On that date he was involved in an accident and suffered bodily injuries. He was paid by plaintiff for his medical expenses and
lost wages under his insurance policy. Plaintiff later discovered the existence of a policy issued by defendant to Eunice M. Boland and sought 50% contribution of the expenses paid and to be paid to Richard W. Boland.
Defendant denied coverage and refused to make contribution, relying upon the following provision in its policy:
The insurance under this endorsement does not apply: B -- to bodily injury to the named insured or any relative of the named insured sustained while occupying, using, entering into alighting from a private passenger automobile, which is not an insured automobile under this policy, if he is required to maintain automobile liability insurance coverage with respect to the automobile under the New Jersey Automobile Reparation Reform Act.
Plaintiff then filed an application for arbitration pursuant to N.J.S.A. 39:6A-11 against defendant in an inter-company arbitration to recover 50% of the expenses paid and to be paid on behalf of Richard W. Boland. On November 8, 1978 the arbitrators ruled in favor of defendant and against plaintiff, stating that applicant failed to sustain the burden of proof. In the proceeding to vacate the decision of the arbitrators the trial judge held that the case was not an appropriate one for the court to substitute its judgment for that of the arbitration panel, even if the court were so inclined. The complaint was dismissed.
The primary issue here is whether the exclusion contained in defendant's insurance policy conflicts with N.J.S.A. 39:6A-1 et seq. , the New Jersey Automobile Reparation Reform Act. There were no facts to be determined by the arbitrators. The issue submitted to them was solely legal.
N.J.S.A. 39:6A-4 provides in part:
Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide additional coverage, as defined herein below, under provisions approved by the Commissioner of Insurance, for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who ...