In this automobile accident case defendants Browning Ferres Industries and Frank W. Evans have moved for summary judgment on the ground that the claim of plaintiff Thomas Buoni, Jr. is barred by the dismissal with prejudice of a prior suit and the release of plaintiff's claims.
On May 2, 1985, Mr. Buoni filed a suit against Browning Ferres and Evans which alleged that on December 19, 1984 a motor vehicle owned by Browning Ferres Industries and negligently operated by its employee, Frank W. Evans, collided with Mr. Buoni's car, causing him serious injury. All of the parties resided in New Jersey and the accident took place in this State. The suit was settled and was dismissed with prejudice by a stipulation dated May 29, 1986, filed July 10, 1986. In connection with the settlement, Mr. Buoni released all claims he might have had against Browning Ferres and Evans in exchange for $8,250 compensation for bodily injury and $5,000 for property damage.
The present suit was filed December 5, 1986. The parties named as plaintiff and defendants, and the allegations of the complaint, are the same in this suit as in its predecessor. However, the suit now pending, unlike the first action, actually involves only the claim of Mr. Buoni's insurance carrier, pursuant to N.J.S.A. 39:6A-9.1, for reimbursement of PIP (Personal Injury Protection) payments it has made to Mr. Buoni as its insured.
The insurer's PIP reimbursement claim is based on N.J.S.A. 39:6A-9.1. By the terms of that statute, plaintiff's insurer, upon "paying personal injury protection benefits . . . as a result of an accident occurring within this State" has the "right to
recover the amount of payments from any tortfeasor who was not, at the time of the accident, required to maintain personal injury protection . . . coverage. . . ."
The statutory prerequisites to the right of the plaintiff's insurer to recover personal injury protection payments have been satisfied. It has paid personal injury protection benefits to Mr. Buoni, the plaintiff. The payments were made as the result of an accident that occurred in New Jersey. And, since the vehicle owned by Browning Ferres, which collided with Mr. Buoni's car, was a commercially operated truck, the defendants were not required to maintain personal injury protection coverage because that requirement is imposed only upon the owner of an "automobile", a term specifically defined by the statute to exclude commercially operated trucks. N.J.S.A. 39:6A-2, -3, and -4; Rybeck v. Rybeck, 141 N.J. Super. 481, 503 (Law Div.1976), appeal dismissed on other grounds, 150 N.J. Super. 151 (App.Div.1977), cert. den., 75 N.J. 30 (1977). Cf. Lattimer v. Boucher, 189 N.J. Super. 33 (Law Div.1983)). Plaintiff's insurer is therefore entitled to recover the PIP benefits it has paid, unless its claim is barred by the settlement and dismissal with prejudice of the prior suit or by Mr. Buoni's release of all claims.
For purposes of determining the effect of that dismissal and release upon the present claim, it is of fundamental significance that the right to recovery of PIP benefits asserted in this suit is founded upon N.J.S.A. 39:6A-9.1, a statute that was adopted in 1983 (and amended in 1985 in ways not material to this suit). The language of that statute, read in the light of the New Jersey Supreme Court's decision in Aetna Ins. Co. v. Gilchrist Brothers, Inc., 85 N.J. 550 (1981), establishes that the insurer's right to reimbursement for PIP benefit payments does not arise by subrogation. It is a right that did not belong to, and could not have been asserted by, Mr. Buoni, the nominal plaintiff in this action.
Aetna was decided before the enactment of N.J.S.A. 39:6A-9.1 and after the expiration of the two-year period during which N.J.S.A. 39:6A-9 had permitted an insurer paying personal injury protection benefits to exercise subrogation rights by arbitration or intercompany agreement against the insurer of an insured tortfeasor. Hence no statutory basis for recovery of PIP payments then existed. The Supreme Court held in Aetna (a case which, like the present one, involved an automobile driver's claim against a commercially operated truck) that the New Jersey Automobile Reparation Reform Act had "eliminated the ability of the insured in an action in this State to recover damages from the tortfeasor for the amounts collectible or paid under PIP," 85 N.J. at 562 and that, despite an explicit agreement in Aetna's insurance policy purporting to subrogate the insurer to the rights of the person for whose benefit the personal injury protection payments were made, "the subrogation provision in the insurance policy is inoperative when, as here, the right of the injured person to maintain an action for PIP benefits has been extinguished by the evidential exclusion rule [of N.J.S.A. 39:6A-12]." Id. at 561-62. Consequently, in the instant case Mr. Buoni's insurer has no right to recover PIP benefits except to the extent that such a right was granted by N.J.S.A. 39:6A-9.1*fn1
N.J.S.A. 39:6A-9.1 was in effect on December 19, 1984, the date of the automobile accident that is the basis of the present suit. The language of N.J.S.A. 39:6A-9.1 was apparently crafted in response to Aetna. It does not refer to "subrogation," but rather speaks in terms of the direct right of the insurer paying personal injury protection ...