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Olivero v. New Jersey Manufacturers Insurance Co.

Decided: March 5, 1985.

TINA OLIVERO, BY HER PARENT AND GUARDIAN AD LITEM, MARGARET OLIVERO, AND MARGARET OLIVERO, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY AND LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Cumberland County.

King, Deighan and Bilder. The opinion of the court was delivered by Deighan, J.A.D.

Deighan

[199 NJSuper Page 193] This matter is a classic example of the precise situation that the Legislature intended to avoid when it enacted the New Jersey Automobile Reparation Reform Act (No-Fault), N.J.S.A. 39:6A-1, et seq. to provide payment for benefits for automobile accident victims. The Act requires that personal injury protection benefits (PIP) under an automobile liability policy shall be payable as the loss accrues; it permits the PIP carrier to receive reimbursement for collectible workers' compensation benefits. Plaintiffs are fortunate in having dual coverage for benefits under both PIP and workers' compensation. Unfortunately, Liberty Mutual Insurance Company (Liberty Mutual), the workers' compensation (workers' comp) carrier who has undertaken

to pay considerable benefits, has now refused to pay certain bills for tutoring, rehabilitation, physical therapy and other expenses. Plaintiffs then turned to New Jersey Manufacturers Insurance Company (NJM) for PIP benefits which it declined, for the most part, to pay.

Plaintiffs instituted the present suit in the Superior Court, Law Division to determine their rights. The complaint was dismissed on application of both insurance carriers. NJM contends that the Superior Court, Law Division has no jurisdiction over the matter and that exclusive jurisdiction is vested in the Workers' Compensation Court. In the meantime, because the carriers cannot agree and plaintiffs' motion in the Workers' Compensation Court for relief filed in July 1984 has yet to be heard, plaintiffs have been denied certain benefits from either or both insurance carriers. In addition to seeking PIP benefits from NJM, plaintiffs sought to compel Liberty Mutual to pay outstanding medical and related expenses pursuant to an order of the Workers' Compensation Court entered July 16, 1981.

The trial judge dismissed the complaint as to Liberty Mutual on the ground that the Division of Workers' Compensation has exclusive jurisdiction and plaintiffs' remedy is through that Court. He also held that, insofar as PIP coverage by NJM, the factual matter is analogous to that in New Jersey Manufacturers Ins. Co. v. Blau, 194 N.J. Super. 27 (App.Div.1984), and therefore dismissed the complaint. This appeal followed. We agree with the dismissal of the complaint as to Liberty Mutual but reverse the dismissal as to the PIP carrier, NJM.

After filing of a notice of appeal, on September 17, 1984, plaintiffs moved for acceleration of the appeal as an emergent matter. Because of the exigencies of the case we considered this as an emergent matter and a hearing was held as a result of which on October 26, 1984 an order was entered accelerating the appeal, establishing a briefing schedule and requesting the clerk to calendar the case as soon as possible.

On April 21, 1981, plaintiff, Tina Olivero, then 12 years of age, was seriously injured when she was struck by an automobile while riding her bicycle and delivering papers for the Vineland Times Journal. As a result of head injuries she suffered from quadriparesis with ambulation, coordination and speech dysfunction. Her learning ability and memory retention has also been seriously impaired. Extensive surgery, treatment and therapy designed to minimize the effects of the injury have continued over the years since the accident and continue to the present time.

On May 11, 1981, a workers' compensation petition was filed by Tina. The compensation carrier for Vineland Times Journal is Liberty Mutual. On July 16, 1981 Liberty Mutual was directed to

supply to the petitioner all reasonable and necessary medical care necessary for her to recover from her injury suffered on April 21, 1981.

Liberty Mutual was also directed to pay the minimum temporary disability payments of $53.07 per week (Tina earned $29 per week for six and one-half hours work). As of July 17, 1984 Liberty Mutual paid a total of $157,356.58 in medical benefits alone and temporary disability payments continue.

Tina has been admitted to and treated at the Children's Hospital of Philadelphia on several occasions. She has also been admitted on numerous occasions to Children's Seashore House in Atlantic City for surgery and rehabilitative treatment. Her treatments continue. In June 1984 Tina had surgery to correct the spastic condition of her toes and foot. During July and August 1984 she was an in-house patient at Children's Seashore House and received occupational and speech-language therapy. The discharge summaries from ...


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