On appeal from Superior Court, Law Division, Cumberland County.
Botter, Antell and Furman. The opinion of the court was delivered by Botter, P.J.A.D.
[190 NJSuper Page 287] We granted leave to appeal from an order entering partial summary judgment in favor of defendant dismissing plaintiff's
claim for "additional" personal injury protection (PIP) benefits under N.J.S.A. 39:6A-10 for injuries suffered in an accident on August 20, 1978. The case is governed by the provisions of N.J.S.A. 39:6A-10 as they existed before this section of the "no fault" law, N.J.S.A. 39:6A-1 et seq., was amended in January 1982 by L. 1981, c. 533.*fn1 The trial judge ruled that, although N.J.S.A. 39:6A-4 provided basic benefits to the named insured and members of his family residing in the same household, N.J.S.A. 39:6A-10 provided additional coverage for the named insured only, as defined in the policy. See N.J.S.A. 39:6A-2(g), discussed below. Since the policy in question designated the named insured, plaintiff's father, and his spouse if resident of the same household, as the only persons insured for additional PIP coverage, the trial judge ruled that additional benefits were not available to plaintiff. In doing so the trial judge relied on DeSimone v. Nationwide Mut. Ins. Co., 149 N.J. Super. 376 (Law Div.1977). We now overrule the holding in DeSimone and reverse the judgment below.
Plaintiff was seriously injured in a motor vehicle accident in August 1978. Alleging that he was a resident of his father's household, plaintiff brought this action for PIP benefits under an insurance policy issued to his father by defendant. Defendant paid plaintiff's medical expenses but disputed plaintiff's right to income continuation benefits because of his unemployment status, see Gambino v. Royal Globe Ins. Co., 86 N.J. 100 (1981), and also disputed plaintiff's right to additional benefits afforded pursuant to N.J.S.A. 39:6A-10 as it then existed (section 10, L. 1972, c. 70). Plaintiff contends that he was covered for section 10 benefits for various reasons. The only contention
that merits consideration*fn2 is that section 4 (N.J.S.A. 39:6A-4) and section 10 should be read in pari materia and, therefore, the additional PIP benefits endorsement provided by defendant conflicted with section 10 by describing a more limited class of persons entitled to additional benefits than intended by the Legislature.
The problem may be stated simply. Section 4 provides "basic" benefits (medical expense, income continuation, essential services, survivor and funeral expense) without regard to liability or fault for, among others, "the named insured and members of his family residing in his household." N.J.S.A. 39:6A-2(g) defines "Named insured" as "the person or persons identified as the insured in the policy and, if an individual, his or her spouse." Before its amendment in 1982, section 10 required insurers to "make available to the named insured covered under section 4, suitable additional first-party coverage for income continuation benefits, essential service benefits, survivor benefits and funeral expense benefits. Income continuation [benefits] in excess of that provided for in section 4 must be provided . . . by insurers to persons for disabilities . . . up to an income level of. . . ." (Emphasis added.)*fn3 Defendant contends that the language of
section 10, "shall make available [additional coverage] to the named insured," meant that the only persons to be covered for additional PIP benefits were those who were defined by the act and regulations adopted thereunder as within the term "named insured." This position was adopted in DeSimone, supra. The court in DeSimone held that "the terms of N.J.S.A. 39:6A-10 restrict the additional coverage to the 'named insured covered under section 4.'" 149 N.J. Super. at 379. One reason advanced was that the Legislature could easily have used different terms in section 10 if it intended to benefit all "persons covered in section 4." Ibid. The question is whether the Legislature intended by section 10 to restrict benefits to the "named insured" or merely intended to require that the option to obtain additional coverage should be given to the named insured, with whom the insurer has dealings, without changing the category of persons intended to be covered for such benefits.
We have this case because the Legislature did not clearly express itself. Our objective is to determine the Legislature's intent.
To start with we note that N.J.S.A. 39:6A-2(g) includes a spouse of the person or persons identified as "the insured" in the policy, although this definition section does not speak of the spouse's residence in the same household. (By contrast, the policy in question defines the named insured as the individual named in item 1 of the declarations and also that person's spouse if a resident of the same household. It further defines an "insured" as a person or organization described under the policy section entitled "Persons Insured.") Section 4 mandates benefits for (a) "the named insured" and members of his family residing in his household who sustain injury in an automobile accident, (b) other persons occupying the automobile of the named insured or using it with his permission, and (c) pedestrians
injured by the named insured's automobile. Section 10 requires insurers to make certain additional benefits "available to the named insured covered under section 4." However, in setting limits for income continuation benefits it refers to the persons entitled to those benefits not as the named insured but as ...