On appeal from the Superior Court, Law Division, Middlesex County.
Morton I. Greenberg, J. H. Coleman and Havey. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
[208 NJSuper Page 41] This matter comes on before this court on appeal from decisions made on a motion for summary judgment and at a subsequent nonjury trial in an action where once again a person entitled to personal injury protection benefits (PIP) was denied these benefits and has sought on various theories to recover damages in excess of the amount of the benefits and interest due thereon as provided in the New Jersey Automobile Reparation Reform Act (No Fault Act), N.J.S.A. 39:6A-1 et seq. In this case, except for an award of counsel fees under court rule, plaintiff was unsuccessful in exceeding the statutory elements of recovery, a result consistent with the treatment of these types of claims made by other persons in prior litigation. The appeal is notable in that plaintiff forthrightly concedes in the light of Milcarek v. Nationwide Ins. Co., 190 N.J. Super. 358 (App.Div.1982), her recovery is predicated on "a change in the present state of the law concerning the non-availability of compensatory and punitive damages to persons such as Appellant,"
a concession that may be too broad as here, unlike the plaintiff in Milcarek, plaintiff relies on the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. Nevertheless, while we are troubled by the conduct of the insurance carrier in this case, we decline plaintiff's invitation to disregard established precedent as we think it would be inappropriate for us to do so, and are satisfied that in any event it would be unwise to allow plaintiff a recovery beyond her substantial remedies under the No Fault Act and court rules.
This action is derived from the circumstance that plaintiff, Debra Pierzga, was severely injured in an accident on October 24, 1981 while a passenger in an automobile owned and operated by Timothy Minchin and insured by defendant Ohio Casualty Group of Insurance Companies, and consequently incurred substantial expenses qualifying for PIP benefits. Inasmuch as plaintiff was not entitled to PIP benefits under any other policy, her source for such benefits was from Ohio which, of course, was promptly notified of the accident. While her husband had medical payments insurance administered or issued by Aetna Insurance Company through his employer, Channel Home Centers, which covered plaintiff for certain expenses she incurred, this coverage did not entitle Ohio to collateral source deductions under N.J.S.A. 39:6A-6.
It is unnecessary to set out the facts of this case at length as we are deciding it on a legal basis. Suffice it to say that after the accident plaintiff made efforts to recover from both Aetna and Ohio. Ohio attempted to avoid responsibility. It investigated to ascertain whether plaintiff or her husband owned an automobile insured with a policy with PIP benefits, undoubtedly a reasonable thing to do. But it not so reasonably attempted to place the responsibility for the bills on Aetna. Further, by any standard its conduct was dilatory and reflective of its intention to avoid its responsibilities. Plaintiff was represented by an attorney who attempted unsuccessfully to get Ohio to meet its obligations and the record reflects his understandable frustration in the situation.
Eventually plaintiff in April 1983 filed a complaint against Ohio and W.R. Grace & Company which operates Channel. Inasmuch as the claim against Channel was settled the complaint against it was dismissed and need not be further described. Plaintiff sought a recovery from Ohio for medical expenses, income continuation benefits, essential services benefits, punitive damages for its willful and wrongful refusal to pay her PIP benefits, negligence, conspiracy and breach of an agreement to pay for home health care. In addition, plaintiff sought compensatory and punitive damages under the Insurance Trade Practices Act, N.J.S.A. 17:29B-4(9) (also called the Unfair Claims Settlement Practices Act), and treble damages under N.J.S.A. 56:8-1 et seq., the Consumer Fraud Act.
On February 10, 1984 plaintiff obtained a partial summary judgment against Ohio ordering it to pay income continuation and essential service benefits, accrued medical expenses, accrued interest and attorney's fees. On May 23, 1984 a consent order was entered reflecting the terms of the summary judgment and requiring payments to plaintiff of the amounts due for PIP benefits.
Subsequently Ohio moved for an order for summary judgment and sought to reopen the summary judgment rendered against it. The court would not reopen the prior summary judgment but did grant Ohio summary judgment on June 4, 1984 on all remaining issues except for plaintiff's claim under the Consumer Fraud Act. At the ensuing nonjury trial a different judge found that the Consumer Fraud Act as a matter of law did not apply in this case and that even if it could apply there was insufficient evidence to support a judgment against Ohio. The trial judge on December 24, 1984 signed an order in favor of Ohio reflecting this decision. Plaintiff appeals, asserting that the pretrial dismissals of her claims for punitive damages and for damages under the Insurance Trade Practices Act, and the dismissal at trial of the claim under the Consumer Fraud Act were erroneous. Plaintiff, however, makes no claim
on this appeal that PIP benefits due under the No Fault Act have not been made.
As plaintiff recognizes, the resolution of the issues on this appeal should start with a discussion of Milcarek v. Nationwide Ins. Co., supra, 190 N.J. Super. at 358. We there held that there is no right of recovery of punitive damages against an insurance carrier which wrongfully withholds PIP benefits. The plaintiff in Milcarek recognized that ordinarily punitive damages are not recoverable against an insurance carrier for nonpayment of benefits but sought to establish that the insurance company had a special relationship which imposed a fiduciary duty ...