On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
Michels, Pressler and Trautwein. The opinion of the court was delivered by Michels, P.J.A.D.
Pursuant to leave granted by this court, defendants and third-party plaintiffs Walter Weisman (Weisman) and Selected Risks Insurance Company (Selected Risks) appeal from an order of the Law Division denying their motion for reconsideration of a summary judgment entered in favor of third-party defendant Allstate Insurance Company (Allstate). The summary judgment declared that Selected Risks was solely liable to plaintiffs Catherine N. Ford (Ford) and Sandra D. Hickman (Hickman) for personal injury protection (PIP) benefits under its policy of insurance covering plaintiffs' automobile and that Allstate's insurance policy covering another automobile owned by Ford did not apply by virtue of the exclusionary clause contained therein.
The facts are not in dispute. Ford and Hickman were the owners of an automobile that Ford was operating and in which Hickman was a passenger when it collided with an automobile owned and operated by Weisman. Both automobiles were covered by policies of insurance issued by Selected Risks. During pretrial discovery, it was learned that Ford owned a second
vehicle, which was covered by a policy of insurance issued to her by Allstate. Selected Risks then filed a third-party complaint against Allstate, seeking a declaration that Allstate, and not Selected Risks, was primarily liable for Ford's personal injury protection benefits.
Allstate moved for summary judgment against Selected Risks, relying on the following exclusionary clause contained in its policy of insurance issued to Ford:
[Basic personal injury protection] does not apply:
2. to bodily injury to the named insured or any relative of the named insured sustained while occupying, using or entering into or 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; . . .
Selected Risks argued that Allstate's exclusionary clause was contrary to public policy because it conflicted with the mandatory coverage required by N.J.S.A. 39:6A-4. This statute provides in part that every liability policy that insures an automobile shall provide additional coverage 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 sustain bodily injury as a result of an accident involving an automobile.
At the time this motion was decided we had held in Fellippello v. Allstate Ins. Co., 172 N.J. Super. 249 (App.Div.1979), that a clause in an insurance contract that excludes from basic personal injury protection bodily injury sustained in an accident outside New Jersey is void because it conflicts with the coverage required by N.J.S.A. 39:6A-4. Despite this precedent, the trial judge granted Allstate's motion for summary judgment, concluding that Fellippello was distinguishable and that N.J.S.A. 39:6A-4 did not make Allstate liable for any of Ford's personal injury protection benefits. Selected Risks did not seek leave to appeal, and the time for seeking such leave is long past.
Following the entry of summary judgment, we held, in Selected Risks Ins. Co. v. Allstate Ins. Co., 179 N.J. Super. 444 (App.Div.1981), certif. den. 88 N.J. 489 (1981), that the same exclusionary clause here involved was invalid and against ...