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McKenna v. Wiskowski

Decided: August 26, 1981.

JASON MCKENNA, AN INFANT BY HIS GUARDIAN AD LITEM, EDWARD MENKEVICH AND EDWARD MENKEVICH AND CATHERINE MENKEVICH, INDIVIDUALLY, PLAINTIFFS,
v.
JOAN H. WISKOWSKI, DIRECTOR, DIVISION OF MOTOR VEHICLES OF STATE OF NEW JERSEY AND MONARCH INSURANCE COMPANY OF OHIO, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS



Deighan, J.s.c.

Deighan

This is a declaratory judgment action to determine eligibility for personal injury protection (PIP) benefits under the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1, et seq. The minor plaintiff, Jason McKenna, age seven, sustained serious personal injuries arising out of a moped-automobile accident, the hospital bill alone amounting to $6,827.89. The facts are not in dispute; all parties move for summary judgment.

On July 12, 1980, Jason McKenna was a passenger on a moped-type vehicle with an engine displacement of 49cc. operated by Robert Sylvester and owned by Donald Giandomenico

which was involved in a collision with a private passenger automobile owned and operated by Evelyn F. Lloyd. The Lloyd vehicle was insured for liability as well as PIP coverage with defendant Monarch Insurance Company of Ohio. The moped was insured by Foremost Insurance Company for liability only, with no PIP coverage.*fn1

Jason McKenna resides with his guardians, Edward and Catherine Mankevich, neither of whom owned a private passenger automobile at the time of the occurrence and consequently have no PIP coverage. The owner of the moped, Donald Giandomenico, is insured under a homeowners policy with Farmers Mutual Insurance Company (Farmers) which had medical coverage. Farmers is not a party to these proceedings. Since Monarch has disclaimed and there apparently is no other insurance coverage, plaintiffs institute this action against Joan H. Wiskowski, Director of Division of Motor Vehicles, for a claim under the Unsatisfied Claim and Judgment Fund Act, N.J.S.A. 39:6-61 et seq. (Fund).

The Fund contends that it is only required to pay when there is a failure to carry insurance required by law. Since PIP coverage is not required for the moped and the automobile and the moped both carry the required public liability insurance, The Fund concludes that there can be no claim against it. Alternatively, the Fund argues that the minor plaintiff was an injured pedestrian under the definition of the PIP statute, N.J.S.A. 39:6A-2 h., and qualifies for PIP coverage under the Monarch policy. Both defendants further contend that medical pay benefits are available to plaintiffs, under the homeowners policy issued by Farmers to Donald Giandomenico. See Aetna Ins. Co.

v. Weiss , 174 N.J. Super. 292 (App.Div.) cert. den. 85 N.J. 127 (1980).

Plaintiffs contend that the minor plaintiff was involved in an accident with a New Jersey registered private passenger automobile and that they are entitled to PIP benefits under the doctrine of Hoglin v. Nationwide Mut. Ins. Co. , 144 N.J. Super. 475, 481-482 (App.Div.1976) and Harlan v. Fidelity & Casualty Co. , 139 N.J. Super. 226, 229 (Law Div. 1976). See, also, Gerber v. Allstate Ins. Co. , 161 N.J. Super. 543, 547, 548 (Law Div.1978), where PIP coverage was upheld when decedent, while operating a motorcycle, swerved and avoided contact with an automobile but struck a truck. Notwithstanding the fact there was no contact with the automobile, the court held that death resulted from an accident "involving an automobile." Plaintiffs also join with the Fund and assert that Jason McKenna was a pedestrian within the definition of the No Fault Act.

The first point to be dealt with is plaintiffs' contention concerning the applicability of Hoglin and Harlan. At first, the broad language of Hoglin may seem to indicate that PIP coverage is afforded to plaintiffs in the present case.

[A] literal reading of N.J.S.A. 39:6A-4 evidences a clear legislative intent to provide coverage to such class of persons when they sustain injury as a result of any accident involving an automobile. [144 N.J. Super. at 480; emphasis in original]

Upon closer analysis, however, while the facts concerning the accident are the same, the claim was made by plaintiffs ...


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