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Darel v. Pennsylvania Manufacturer''s Insurance Co.

Decided: September 30, 1987.

DYANDRIA DAREL, PLAINTIFF-RESPONDENT,
v.
PENNSYLVANIA MANUFACTURER'S INSURANCE COMPANY, S & N LEASING CORP. AND DAVID WILKINSON, DEFENDANTS-APPELLANTS



On appeal from the Superior Court of New Jersey, Law Division, Passaic County.

Michels, Shebell and A. M. Stein. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

Defendant Pennsylvania Manufacturer's Insurance Company (PMI) appeals from an order of the Law Division holding it liable for payment of personal injury protection benefits (P.I.P.) and counsel fees to plaintiff Dyandria Darel. On November 9, 1983, plaintiff was riding a bicycle and was injured as a result of an accident involving an automobile insured by PMI. The trial judge found that there was no contact between plaintiff's bike and the insured automobile. We reverse.

Plaintiff instituted an action for personal injuries against the owner and operator of the vehicle, alleging that the vehicle was negligently driven and struck her bicycle. In the same action plaintiff claimed P.I.P. benefits against the vehicle's insurance carrier. The personal injury claim was originally severed from the P.I.P. claim; however, the court ruled that the jury would decide the personal injury claim and the court would decide the P.I.P. claim based upon the facts found by the jury. Following a jury determination that the operator of the vehicle was not negligent, the personal injury claim was dismissed.

After permitting the parties to brief the issue of whether plaintiff was entitled to P.I.P. benefits and counsel fees, the trial judge issued a written opinion holding that defendant PMI was liable to plaintiff for both the benefits and fees. The trial

judge adopted the jury finding that the driver was not negligent and further found that plaintiff was negligent in the control of her bicycle by going off the sidewalk into the path of oncoming traffic and the insured's car. The court also found "that the car swerved to the left and avoided contact with the plaintiff and her bike, but that plaintiff fell when she abruptly turned her bike to avoid the car and the injuries occurred as a result." These findings are supported by credible evidence in the record and may not be disturbed. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

The issue presented to this court is whether in accidents occurring subsequent to October 4, 1983, a pedestrian, who is not a named insured or a resident-relative of a named insured, may recover P.I.P. benefits related to injuries sustained in an accident in which there was no contact with the insured's automobile. We conclude that such recovery is not permitted.

Prior to the amendment effective October 4, 1983, N.J.S.A. 39:6A-4 provided as follows:

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 damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide additional 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 involving an automobile, to other persons sustaining bodily injury while occupying the automobile of the named insured or while using such automobile 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. [(Emphasis supplied)].

The statute as it existed prior to the 1983 amendment was interpreted to provide coverage to a pedestrian in the named insured's family who, distracted by the headlights of an oncoming car, fell off a dirt bike even though there was no contact. Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123 (1982). We noted in Purdy that if our holding was not in conformance

with the Legislature's intent, it was up to that body to correct it. 184 ...


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