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Lattimer v. Boucher

March 4, 1983

KEITH LATTIMER, PLAINTIFF,
v.
MARK D. BOUCHER, ETC., ET AL., DEFENDANTS. AND ALLEYNE SKINNER ET ALS., PLAINTIFFS, V. MARK D. BOUCHER, ETC., ET AL., DEFENDANTS. AND CARLEY SKINNER, ETC., ET AL., PLAINTIFFS, V. MARK D. BOUCHER ET ALS., DEFENDANTS. AND JANICE DYKES ET AL., PLAINTIFFS, V. MARK D. BOUCHER ET ALS., DEFENDANTS



Williams, J.s.c.

Williams

This is an action for injuries suffered in an automobile accident on January 26, 1980, in Galloway Township. Plaintiffs are New York residents whose automobile was struck by defendant Boucher's truck. Plaintiffs' car was registered in New York and insured by a New York policy; Boucher is a New Jersey resident whose truck was registered and insured in this State. Boucher's codefendants include the bar where he was purportedly drinking before the accident.

Plaintiffs intend to place the amount of their medical expenses and lost wages into evidence at trial as a compensable element of damages, even though these amounts are either paid or collectible as no-fault benefits under their New York policy. Defendants have made a motion in limine, contending this evidence is inadmissible. Both parties concede that, had this accident involved two vehicles registered and insured in New Jersey, or had it occurred in New York and involved two vehicles registered and insured there, evidence of medical expenses and lost wages would have been inadmissible under each state's no-fault statute. N.J.S.A. 39:6A-12; N.Y.Ins.Law, §§ 673.1, 671.1. The question posed by this case, then, is whether New Jersey law or public policy requires the same evidentiary prohibition when the action involves a New Jersey accident, a New York plaintiff and a New Jersey defendant. For the reasons set forth below, this court holds that such is not required.

First, the evidentiary exclusion of N.J.S.A. 39:6A-12 does not apply directly to this case. That section reads:

Evidence of the amounts collectible or paid pursuant to sections 4 and 10 of this act to an injured person is inadmissible in a civil action for recovery of damages for bodily injury by such injured person.

Sections 4 (N.J.S.A. 39:6A-4) and 10 (N.J.S.A. 39:6A-10) of the act provide for payment, regardless of fault, of personal injury protection (PIP) benefits to persons injured in an accident involving an automobile, with mandatory minimum coverage for all reasonable medical expenses and $100 a week up to $5,200 in lost wages. However, these two sections, read in conjunction with N.J.S.A. 39:6A-3, extend PIP coverage only to "automobiles registered or principally garaged" in New Jersey. Stewart v. Nationwide Ins. Co., 171 N.J. Super. 457, 462-463 (App.Div.1979). Benefits are therefore "collectible or paid pursuant to sections 4 and 10" only when a New Jersey vehicle and a PIP insurance policy are involved. The medical expenses and lost wages in the instant case were paid under a New York policy on a New York vehicle. Accordingly, the exclusionary mandate of § 12 does not apply.

Defendants argue, however, that § 12 is made applicable here by N.Y.Ins.Law, § 672.5, which provides:

Every owner's policy of liability insurance issued in satisfaction of articles six or eight of the vehicle and traffic law, shall also provide, when a motor vehicle covered by such policy is used or operated in any other state . . ., insurance coverage for such vehicle at least in the amount required for such vehicle by the laws of such other state. . . .

Defendants read this provision to incorporate all New Jersey coverage requirements into plaintiffs' policy, so that their no-fault benefits were "paid pursuant to section 4" and are therefore excludable under § 12. Plaintiffs contend the provision simply guarantees that residents injured in their home state by New York drivers receive liability coverage at least equal to that mandated by their legislatures. A close reading of the statute suggests plaintiffs' interpretation is correct.

Stewart v. Nationwide Ins. Co., supra, cited by both parties in support of their respective positions, is not pertinent, since it turned on the court's interpretation of specific provisions in Pennsylvania law. See 171 N.J. Super. at 465. A more relevant case is Government Empl. Ins. Co. v. Halfpenny, 103 Misc. 2d 128, 425 N.Y.S. 2d 212 (Sup.Ct.1980), in which the court held that a New York resident, injured in New Jersey by a New Jersey

driver, was neither subject to nor covered by New Jersey no-fault law; instead, the plaintiff's remedy was held to be a common-law tort action that included recovery for medical expenses. Id. at 133, 425 N.Y.S. 2d at 216. Halfpenny makes no reference to § 672.5 of the New York law, although it was in effect at the time of the 1975 accident. Additionally, New York amended its no-fault statute in 1977 to make benefits available to New York residents injured in out-of-state accidents. See Hansen v. Zitti, 106 Misc. 2d 354, 355, 431 N.Y.S. 2d ...


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