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Lefkin v. Venturini

Decided: November 14, 1988.

MARTIN LEFKIN AND FLORENCE LEFKIN, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
ARDUINO VENTURINI, AND DEBORAH DALY, DEFENDANTS, AND AETNA INSURANCE COMPANY, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division, Somerset County.

Pressler, Scalera and Stern. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

Plaintiff Martin Lefkin appeals from a judgment dismissing his complaint against defendant Aetna Insurance Company by which he sought to recover personal injury protection (PIP) benefits under the policy of automobile liability insurance issued to him by Aetna and in effect at the time of his injury. The appeal raises important questions involving the relationship between workers' compensation benefits and PIP benefits and particularly income continuation benefits.

The record before us is regrettably meager and this for the reason that the parties submitted their dispute to the trial judge by way of a truncated stipulation of facts which omits many of the relevant circumstances. This is what we are able to glean from the record. On June 24, 1985, plaintiff, a New Jersey resident, was driving his automobile on a New York highway when he was struck in the rear by a vehicle owned and operated by defendant Arduino Venturini. He sustained a second impact when Venturini's vehicle was struck in the rear by defendant Deborah Daly. He suffered permanent injuries as a result of which he has not been able to work since the accident. His Aetna policy, pursuant to the option exercised by him in accordance with N.J.S.A. 39:6A-10, provided for weekly income continuation benefits of $400, subject to a $41,000 ceiling. To date, and for the reasons hereafter explained, Aetna has made no payments of any PIP benefits to plaintiff.

Plaintiff and his wife, Florence Lefkin, who sued per quod, instituted this action in October 1986 against the two defendant drivers and Aetna. The PIP claims made therein against Aetna were severed, and ultimately, the negligence counts against Venturini and Daly were settled. At some unspecified time following the accident and in an unspecified jurisdiction, plaintiff

instituted a workers' compensation action against his alleged employer, Sky Courier Network, claiming that the accident occurred during the course of his employment by it as a messenger. The record does not reveal if Sky Courier contested the action, what the proofs were as to any of the issues therein, or the findings of fact made respecting either plaintiff's employee status or his income. No document whatsoever memorializing any part of that workers' compensation proceeding is included in this record. We have neither the claim petition, the judgment nor indeed anything else. All we know, and this from the stipulation of facts, is that as of November 6, 1987, Sky Courier's compensation carrier, Liberty Mutual Insurance Company, had paid plaintiff the total sum of $20,291.76 in weekly disability benefits and $5,340.48 on account of medical bills and that weekly benefits in the amount of about $83 continue to be paid. Apparently therefore there was an adjudication by a compensation court of plaintiff's employee status, and Aetna, at oral argument before us, so conceded.

Under the further terms of the factual stipulation, both parties agreed that plaintiff was an employee of Sky Courier at the time of the accident and that plaintiff's income for 1984 and that portion of 1985 which preceded the accident was "as reflected" in his federal income tax returns annexed to the stipulation. Those returns both contained a Schedule C, indicating that plaintiff was self-employed in the business activity of "courier." For the year 1984, gross receipts of $21,166 were reported. We do not know for certain if that entire amount was paid to him by Sky Courier but that may well be so. From this gross figure, the sum of $16,811 was deducted as business expenses, almost all of which was attributed to "car and truck" expenses, including over $6,500 in automobile depreciation. There was also a deduction taken for partial use of a residence for business purposes. Net profit of $4,355 was reported. The 1985 return, covering a calendar year in which plaintiff worked only six months, is generally consistent with the 1984 return.

In addition, each of these returns included a computation of plaintiff's social security self-employment tax.

Finally, the stipulation of facts described the issues in dispute between the parties as follows:

A. Whether the plaintiff is entitled to wage continuation benefits over and above any benefits received from Liberty Mutual.

B. Whether this defendant is obligated to satisfy Liberty Mutual's lien with regard to medical payments.

C. Whether plaintiff's counsel is entitled to a counsel fee on the plaintiff's claim against this defendant.

Plaintiff moved for judgment, and the court concluded that he was entitled to no relief. Final judgment was accordingly ...


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