This is an action for recovery of Personal Injury Protection, hereinafter "P.I.P.", benefits under N.J.S.A. 39:6A-10.
Richard Rosenberg is the president and sole shareholder of Varsity Autos, Inc. The Corporation operated a wholesale automobile business and had a fleet of cars. These cars were insured by defendant, Universal Insurance Co., hereinafter "Universal", through an agent, Rosenberg & Sinderbrand, hereinafter "R & S", under a garage insurance policy. R & S had been writing insurance for Rosenberg for approximately eight years. Rosenberg, his wife, Marilyn, and his two sons, Kenneth and Scott, did not own cars in their own name, having always used company cars. Scott was an employee of the Corporation.
The policy in question had been in effect since 1981 under an assigned risk plan and included basic P.I.P. coverage required under N.J.S.A. 39:6A-4.
That statute required P.I.P. benefits be made available to the insured, any relative of the named insured or any person with the insured's permission who occupies, uses, enters or alights from the insured's automobile or, while a pedestrian, in an accident caused by the insured automobile or as a result of being struck by an object propelled by or from the insured automobile.
In November 1981, based on Rosenberg's intent to provide insurance protection for his family, R & S advised Universal that Marilyn and Kenneth were to be added as drivers and that P.I.P. "Option 5", under N.J.S.A. 39:6A-10 should be added to the policy. Universal acknowledged this coverage effective November 3, 1981 and renewed the policy as amended in May 1982.
On January 7, 1983, Scott, while in Florida, was struck by an automobile and died from the injuries sustained. A claim for
benefits was made by Richard Rosenberg under the policy with Universal. That claim has been refused on the grounds that Scott was not insured under that policy.
The following facts are stipulated:
(1) The benefits under the policy are to be interpreted under N.J.S.A. 39:6A-10, prior to its amendment in 1982, making additional benefits available to the "named insured" described in N.J.S.A. 39:6A-4.
(2) If the Court determines that plaintiff is entitled to benefits under the policy, defendant will pay the following damages:
b. Essential services ...