On appeal from the Superior Court, Law Division, Somerset County.
McElroy, Dreier and Shebell. The majority opinion of the court was delivered by Shebell, J.A.D. Dreier, J.A.D. (concurring and dissenting).
[200 NJSuper Page 352] Defendant insurance company appeals from a summary judgment finding it responsible under its PIP coverage to pay for the cost of a van with appropriate modifications for operation by plaintiff, a paraplegic. During the pendency of the suit the
claim was expanded to include a demand for a "lift chair," explained at oral argument to be a chair used at home with a mechanical device to raise the occupant to a standing position.
Defendant first objects to an earlier trial judge's ruling permitting this suit to proceed by order to show cause and complaint under R. 4:67-1(a) instead of under R. 4:67-1(b) by a summons and complaint followed by a motion for leave to proceed in a summary manner. Defendant's contention is valid, however it is disingenuous for the issue to be raised on appeal after defendant in its brief in opposition to plaintiff's motion for summary judgment stated:
In view of the specific waiver of this objection and the opportunity of the insurer to present its position fully to the trial judge we find this procedural defect to be without consequence.
Plaintiff seeks to compel payment for the basic cost of the van on the basis that it is a "medical expense" under N.J.S.A. 39:6A-4a. This provision requires payment of medical expense benefits regardless of fault, to persons sustaining bodily injuries while occupying a covered motor vehicle. The carrier is required to provide "[p]ayment of all reasonable medical expenses incurred as a result of personal injury sustained in an automobile accident." Id. N.J.S.A. 39:6A-2e states:
We reverse the portion of the court's order requiring Allstate to pay for the basic cost of the van. We do not believe the Legislature intended the cost of basic transportation, in these
circumstances, to be included in "medical expenses." The certification of Pamela's father reflects:
A van type vehicle with a lift will permit Pamela to become less reliant upon others in order to continue to participate in a variety of physical activities necessary for her physical and emotional development. . . . Since both my wife and I are employed on a full time basis, we are not always available to accommodate her transportation needs and desires. As a result, without the appropriate vehicle, she will not be able to pursue these activities as often as she desires.
His certification states that he obtained estimates of the cost of modification of the van of approximately $10,800. Allstate has not declined to pay for such modification. Plaintiff's father also obtained estimates of the cost of a van; a Chevrolet will cost $11,159 and a Ford, $9,808. He alleges funds are not presently available for purchase of the van or modifications. He asserts that if the funds are made available Pamela will "become less dependent on others to transport her to school, therapy, sporting events and other events or places that she desires to go." The trial court noted that the total cost for the van, options and modifications amounts to $21,875.22 and that plaintiff "does not deny that, but for these injuries she would have purchased an ordinary automobile."
The father's certification attempts to intone the van as a "rehabilitation service." Counsel argues it is covered under the provision which refers to ". . . other reasonable and necessary expenses resulting from the treatment prescribed by persons licensed to practice medicine and surgery. . . ." Under the ...