This matter comes before the court on an agreed statement of facts. Plaintiff seeks recovery of additional income-continuation benefits derived from a new policy issued in January 1983 to Patricia Graziano, the named insured, numbered 253X483042, by defendant Prudential. Plaintiff claims as driver of the named insured's vehicle.
The parties agree that the applicable law is the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 et seq.
Plaintiff contends that § 10 extends coverage to him for additional income-continuation benefits elected by Graziano the named insured. The court rejects plaintiff's contention and grants judgment for defendant for the reasons that follow.
Plaintiff's contention is another step in the effort to plumb the legislative intent and interplay of provisions, necessitated by an apparent inconsistency between § 4 and § 10 of the originally enacted law. Commentators noted the problem both at the time of passage, and shortly thereafter, and suggested that this was a decision point likely to produce litigation. See, e.g., Guiney, "New Jersey No-Fault Trends 1975," 11 Forum 129, 131 (1975); Iavicoli, No Fault and Comparative Negligence in New Jersey (1973) at 29-30. Iavicoli's particular position was that the practice in New Jersey conflicted with the legislative intent of the act. Policy writers consistently wrote policy provisions under the additional personal injury protection endorsement covering only the named insured and members of the family residing in the household of the named insured while Iavicoli contended the Legislature intended the beneficiary class to be coextensive with those named in § 4. Ibid.; compare N.J.S.A. 39:6A-4 with 39:6A-10.
The first judicial expression of the legislative intent of the act came in DeSimone v. Nationwide Mutual Insurance Co., 149 N.J. Super. 376 (Law Div.1977) in which the court read the act's lack of congruence between §§ 4 and 10 as an expression of intent to limit the class named in § 4 to a much more narrow group, i.e., the named insured alone. The holding of DeSimone in this sense was more restrictive than the general practice referred to above.
Judge Botter, writing for a unanimous Appellate Division panel in Clendaniel v. New Jersey Manufacturers Insurance Co., 190 N.J. Super. 286, 288 (App.Div.1983), specifically overruled the holding of DeSimone construing the intent of the act, as originally enacted, as making § 10 beneficiaries co-extensive with those named in § 4:
In our view the first sentence of Section 10 did not intend to limit the additional benefits to the named insured. It required the insurer to make the additional coverage as an option to the named insured because this is the only person with whom the insurer has dealings. [at 291]
Clendaniel is a holding of limited relevance to the facts of the matter before this court. The court specifically finds that § 10 of the act, as amended by L. 1981, c. 533, § 1, N.J.S.A. 39:6A-10, applies to this complaint. The Clendaniel holding is limited to reading the intent and coverage of § 10 prior to the amendment. Id. at 288 n. 1. The Clendaniel court did consider the amended statute and its construction of the amendment deserves great respect, although it is clearly not authority for the point. The matter before the court in Clendaniel was heard on remand after certification by the Supreme Court for consideration in light of an amendment to the statute. 91 N.J. 285 (1982). Judge Botter carefully analyzed the provision and declared that the amendment does indeed narrow the class of those who are beneficiaries of the elected additional coverage.
Thus, we conclude, the Legislature did more than clarify the law. Section 10 no longer borrows the entire class of beneficiaries from Section 4, nor does it limit coverage to named insureds only, as defendant contends ...