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Tombros v. Selective Insurance Co.

Decided: September 29, 1989.

MARIA TOMBROS, PLAINTIFF,
v.
SELECTIVE INSURANCE COMPANY OF AMERICA, DEFENDANT



Menza, J.s.c.

Menza

Is a person who, at the time of the occurrence of an accident, is unemployed, not receiving unemployment benefits, and has no immediate prospects of employment, entitled to personal injury protection (PIP) income continuation benefits?

Plaintiff was injured as a result of an automobile accident which occurred on December 8, 1987. She was unemployed at the time. Her last regular employment, except for two days as a waitress, was at Eastern Airlines from which she was terminated in March 1987. She has appealed that termination. She received unemployment benefits from April 12, 1987 to October 27, 1987. She was not receiving benefits on the date of the accident.

Plaintiff contends that in the latter part of December 1987, she received a telephone call from an employer with whom she had interviewed prior to the accident, who offered her employment commencing in February 1988. She contends that this employer stated that he had attempted to call plaintiff between December 9 and December 17, 1987, the period during which plaintiff was in the hospital due to her injuries, to offer her a job. Plaintiff contends that she was unable to commence employment in February 1988, because of the injuries she sustained in the accident.

Defendant moves for summary judgment. It contends that the PIP statute does not permit payment of income continuation benefits to persons who are not employed on the date of the accident, or have no immediate prospects of employment and are not receiving unemployment benefits at the time.

The statute, N.J.S.A. 39:6A-4(b), provides:

Income continuation benefits. The payment of the loss of income of an income producer as a result of bodily injury disability, subject to a maximum weekly payment of $100.00. Such sum shall be payable during the life of the injured person and shall be subject to an amount or limit of $5,200.00, on account of injury to any one person in any one accident, except that in no case shall income continuation benefits exceed the net income normally earned during the period in which the benefits are payable.

The term "income producer" is defined in the statute, N.J.S.A. 39:6A-2(d), as follows:

"Income producer" means a person who at the time of the accident, causing personal injury or death, was in an occupational status, earning or producing income. [Emphasis supplied]

In Hunter v. Hartford Accident and Indemnity Co., 155 N.J. Super. 16 (Law Div.1977), the court allowed income continuation benefits to a plaintiff who had taken a voluntary leave of absence, but was to return to work on the day of the accident. The court said:

In order to be an "income producer" for the purpose of the Automobile Reparation Reform Act must one have been actually on the payroll or earning income on the day of the accident? The answer to that clearly seems to be "No." The definition of "income" points to that conclusion. Income is not limited to salary (of a payroll employee) but includes wages (as a day worker might earn), tips, commissions (as a real estate salesman depends on), fees, "and other earnings derived from work or employment." The language is broad and intentionally so. The Legislature could have been more precise had it wished. Equally broad is the definition of "income producer" as "a person, who at the time of the accident * * * was in an occupational status, earning or producing income." . . . "Occupational status" seems to mean that held by a person who is part of the laboring force, who wants to work and is available for work, even though not actually working at the precise moment or day of the accident. The term connotes a class consisting of those who actually produce "income" or, in a realistic way have the potential to do so. [at 22; emphasis supplied]

In Gambino v. Royal Globe Ins. Co., 86 N.J. 100 (1981), the Supreme Court held that a plaintiff, who had sold his business and was injured two days before beginning new employment and whose normal status in life included gainful employment and production of ...


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