On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
King, Deighan and Havey. The opinion of the court was delivered by King, P.J.A.D.
This appeal is taken from a summary judgment in favor of a Personal Injury Protection (PIP) coverage claimant in an action against her own automobile insurer, The Travelers. The issue is whether plaintiff can obtain PIP benefits from her own insurer where she was not actually struck by a vehicle. The Law Division judge held that actual contact was not necessary. We disagree and reverse.
The facts are undisputed. On August 10, 1984 plaintiff was riding her bicycle on Leonard Cake Road in Franklinville, Gloucester County with a friend. They were going east in single-file against on-coming traffic when a large car travelling west came toward them. The car came very close to hitting plaintiff, forced her off the road, and caused her to fall from her bike. If she had not swerved to avoid the car, it would have struck her. The driver of the car never stopped and to date his identity is unknown. As a result of her fall, her left leg was severely injured and her left foot was amputated in November 1986.
All agree that plaintiff was a qualified "pedestrian" within the meaning of our "no-fault" statute, the New Jersey Automobile Reform Act, N.J.S.A. 39:6A-1 et seq. See N.J.S.A. 39:6A-2(b). The pertinent section of the act controlling resolution of plaintiff's claim for benefits is N.J.S.A. 39:6A-4 which provides in pertinent part
Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damages sustained by any person arising out of ownership maintenance or use of an automobile shall provide personal injury protection coverage, as defined herein below, under provisions approved by the Commissioner
of Insurance, for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustained bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile or as a pedestrian, being struck by an automobile or by an object propelled by or from an automobile, to other persons sustaining bodily injury while occupying, entering into, alighting from or using the automobile of the named insured, with the permission of the named insured, and to pedestrians, sustaining bodily injury caused by the named insured's automobile or struck by an object propelled by or from such automobile. N.J.S.A. 39:6A-4. [Emphasis added].
To qualify for benefits under her own policy as a pedestrian plaintiff must prove that she was "struck by an automobile or by an object propelled by or from an automobile." Such was not the case here.
We are asked to look to N.J.S.A. 39:6A-16 which states that the act "shall be liberally construed so as to effect the purposes thereof." E.g., Gambino v. Royal Globe Ins. Co., 86 N.J. 100, 106 (1981) (phrase "income producer" left room for statutory interpretation). Unfortunately for plaintiff, we must conclude here that the statute allows no room for construction. The language is clear and must be applied as written. The Legislature made a judgment on when PIP would apply and when pedestrians must look elsewhere for recovery, to their own first-party medical carrier, here Blue Cross/Blue Shield, and to other sources for disability and income-continuation benefits.
The words "or, as a pedestrian, being struck by an automobile" entered the statute by amendment in L. 1983. c. 362, § 7. These words replaced the previously broader language -- "involving an automobile" -- language which would clearly provide plaintiff coverage in this case. The 1983 amendments were part of a package of amendatory no-fault legislation which had the partial purpose of cost containment, according to the sponsor's and the legislative committee's statement. The statement accompanying the bill to the floor related: "5. No-fault and Related Clean-up Provisions. These provisions mainly are designed to tighten statutory eligibility requirements for personal injury protection coverage so as to comport with the original intent of the no-fault law." As we stated in Uzcatequi-Gaymon
v. N.J. Mfgr. Ins. Co., 193 N.J. Super. 71, 75 (App.Div.1984): "The Legislature obviously intended more restrictive coverage than that afforded by the language 'involving an automobile'." See JFK Memorial Hospital v. Kendal, 205 N.J. Super. 456 (Law Div.1985); Cf., Schomber v. Prudential Ins. Co., 214 N.J. Super. 309 (Law Div.1986). The intent most certainly was to reverse the results of then-recent cases broadly construing the phrase "involving an automobile." See Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123 (App.Div.1982) (no-contact accident causing injury to driver of "dirt bike" operated off public road ...