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Smith v. Allstate Insurance Co.

Decided: May 10, 1985.

JULEANN SMITH, PLAINTIFF,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT



Stamelman, J.s.c.

Stamelman

This is a suit to recover extended personal injury protection (PIP) income benefits as authorized under the New Jersey Automobile Reparation Reform Act (No Fault Act) (N.J.S.A. 39:6A-1 et seq.). The issues to be resolved are the period of time the income benefits are to continue, the amount of the benefits and whether temporary disability benefits received by the plaintiff reduces the maximum income benefits payable to the insured. There is no reported case that discusses these issues.

Plaintiff, age 27, was involved in an automobile accident on December 4, 1981. She had been employed as a waitress for over eight years and was on maternity leave at the time of the accident. Her baby was born the day after the accident by caesarean section. She had a second child on February 1, 1983.

As a result of the accident, plaintiff was admitted to a hospital. She sustained a fracture of the right patella, fracture of the right tibia and fibula at the ankle, and metatarsal fracture dislocation of the left foot. A closed reduction of the fracture of the right ankle was performed as well as an open reduction of the fracture of the right patella with wire fixation, and a closed reduction with wire fixation of the fracture of the left foot. She was discharged from the hospital on January 8, 1982. She has been under the care of her orthopedic surgeon since the date of the accident.

Plaintiff continues to have problems with her left foot and right knee. The foot swells and is painful. She is required to lie down during the day in order to relieve the pain. She is unable to kneel because of the pain in her right knee which requires elevation during the day to relieve the discomfort. She has developed arthritis in the left foot and right knee. She requires assistance from her parents, husband and sister to help care for her children and assist in her household work.

The doctors who testified for plaintiff and defendant are in agreement regarding plaintiff's medical problems. They agree that her present complaints are consistent with the injuries sustained in the accident. They concur that the injuries are permanent and that her condition will get worse. They also agree that plaintiff is unable to return to work as a waitress.

The first issue to be resolved is how long the income benefits should continue and what amount of weekly benefits plaintiff should receive. Defendant's physician testified that although plaintiff cannot return to work as a waitress, she was able to return to some type of employment. Plaintiff's doctor disagreed. In his opinion plaintiff is disabled and is unable to work because of the pain in her right knee and left foot. I find that because of her disability plaintiff is unable to return to work.

Plaintiff had paid an additional premium in order to have additional income-continuation benefits above the basic PIP

coverage. Her policy provided for income benefits up to $400 a week to a maximum of $41,600. The additional income coverage is authorized under N.J.S.A. 39:6A-10 which states:

Additional personal injury protection coverage.

Insurers shall make available to the named insured covered under section 4, . . . suitable additional first party coverage for income continuation benefits. . . . Income continuation in excess of that provided for in section 4 must be provided as an option by insurers for disabilities, as long as the disability persists, up to an income level of $35,000.00 per year, provided that a. the excess between $5,200.00 and the amount of coverage contracted for shall be written on the basis of 75% of said difference, and b. regardless of the ...


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