Ard, Morton I. Greenberg and Trautwein. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
The issue on this interlocutory appeal surprisingly seems never to have been decided in a reported appellate decision in this state: Is a party to an action for personal injury protection benefits entitled to a trial by jury?
This case arises from an automobile accident on September 21, 1979 in which plaintiff was operating a vehicle which he owned. He alleges that he sustained serious personal injury requiring medical treatment and as a consequence was unable to attend to his business and required nursing and housekeeping care. Plaintiff's vehicle was insured by defendant Prudential Property and Casualty Insurance Company. The policy included PIP benefits as required by the New Jersey Automobile
Reparation Reform Act, N.J.S.A. 39:6A-1 et seq. (No Fault Law).*fn1
On October 12, 1979 plaintiff submitted to defendant an application for PIP benefits including claims for medical expenses, income continuation and essential services. See N.J.S.A. 39:6A-4. Defendant made some payments but by notice of July 28, 1980 notified plaintiff that effective April 1, 1980 all payments for nursing services and housekeeping services were discontinued. It made this determination because two independent medical consultants determined that the need for the services was not consistent with the diagnosis given by plaintiff's physicians.
On September 17, 1981 plaintiff filed a complaint alleging that as a result of the accident, he sustained serious personal injury and had been and would be required to undergo extensive medical treatment, had been and would be unable to attend to his usual occupation and had been and would be required to obtain extensive nursing, housekeeping and other care. He stated that despite his making repeated demands upon defendant for lost income, medical expenses, nursing expenses and other necessary and related expenses under the PIP coverage, defendant had wrongfully refused to make these payments. Defendant filed an answer denying liability.
The case was scheduled for trial on April 3, 1984. Plaintiff desired a jury trial. Defendant objected on the procedural ground that plaintiff had not adequately made a demand for a jury trial and on the substantive ground that in any event plaintiff had no right to such a trial. The trial judge ruled that he would try the case without a jury. He decided that even though plaintiff had properly made his demand he was not entitled to a jury trial. The judge reached this result because he considered plaintiff's claim to be a ". . . creature of the legislature . . . [which] did not exist in the common law." On
June 1, 1984 the trial judge signed an order nunc pro tunc reflecting his determination. After the court's oral decision, plaintiff sought leave to appeal which we granted on April 5, 1984. We also granted defendant leave to appeal from the determination that an adequate jury trial demand had been made.
The issue raised by plaintiff's appeal involves construction of N.J. Const. (1947), Art. I, par. 9, which provides that "The right of trial by jury shall remain inviolate. . . ." This guarantee preserves the right to a jury trial as it existed at common law at the time the New Jersey Constitution of 1776 was adopted. Van Dissel v. Jersey Central Power & Light Co., 181 N.J. Super. 516, 525 (App.Div.1981), certif. den. 89 N.J. 409 (1982), vacated on other grounds and remanded U.S. , 104 S. Ct. 989, 79 L. Ed. 2d 224 (1984). Plaintiff asserts that his claim should simply be regarded as an action for breach of contract which at common law would give him a right of jury trial. Defendant, however, views the matter as a statutory action not existing at common law and thus not subject to a right of jury trial.
Unquestionably there is some support for plaintiff's view. Indeed in Milcarek v. Nationwide Ins. Co., 190 N.J. Super. 358, 365 (App.Div.1983), we recently characterized an action on an insurance policy to recover PIP benefits as a breach of contract case. But that description was given in a situation in which a claimant sought punitive damages because of the carrier's failure to make certain PIP payments.
We conclude that there is no right to a jury trial for PIP benefits where the issue is what benefits, if any, are due. We reach this result because the mandatory obligations providing for PIP benefits when plaintiff's policy was purchased far outweighed the contractual character of the insurance policy issued by defendant to plaintiff. Thus in determining if plaintiff is constitutionally ...