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Benyola v. Allstate Insurance Co.

Decided: January 3, 1990.

PHILIP BENYOLA; LINDA BENYOLA, INDIVIDUALLY AND AS THE GUARDIAN AD LITEM -- ON BEHALF OF THE INFANT PLAINTIFFS, PHILIP BENYOLA, JR. AND CHRISTINA BENYOLA, PLAINTIFFS-APPELLANTS,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT-RESPONDENT



Petrella, O'Brien and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

This appeal requires us to interpret provisions of N.J.S.A. 39:6A-13(d), a section of the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 et seq. Specifically, we must decide whether plaintiffs, who sought Personal Injury Protection (PIP) benefits under plaintiff Philip Benyola's policy of insurance with defendant, were justified in refusing to attend physical examinations as directed by defendant, Allstate Insurance Company.

Plaintiffs were injured in an automobile accident and filed claims for PIP from defendant. By letter dated September 5, 1985, defendant's claim representative requested that plaintiffs, residents of Parlin, Middlesex County, attend physical examinations at the office of Dr. Steven Frank, an orthopedist, in Spotswood, Middlesex County. In response, by letter dated October 10, 1985, plaintiffs' attorney reminded defendant's claim representative that plaintiffs were represented by counsel, objected to correspondence sent directly to plaintiffs, and requested information concerning "the doctor's field of medicine" "[s]o that I can properly advise my clients whether or not the medical appointment which you have requested with Dr. Frank is appropriate." In a letter dated October 16, 1985, the claim representative advised counsel that her letter of September 5, 1985 was dispatched four days before the date on the letter of representation and that if plaintiffs "do not attend the second examination on October 23, 1985 all medical benefits will immediately be suspended for failure to comply with their

insurance contract." By response, dated October 23, 1985, counsel again objected to direct communication with his clients and stated:

With regard to your request for physical examination by Dr. Steven Frank of Spotswood, New Jersey, I would point out that same is not in conformity with New Jersey Statute Title 6A et seq.

Pursuant to the terms of that Statute, your PIP examination must be had with a physician practicing within the municipality of your assured.

Accordingly, you have no right to suspend benefits to my clients and your insured and any such action, or continued threatening action may subject you to litigation -- not only for the payment of the medical bills, but also for counsel fees, costs and/or punitive damages.

On behalf of my client, I once again want to represent to you that we are ready, willing and able to render full cooperation to your company with regard to all appropriate requests which are in conformity to law.

By memorandum dated October 25, 1985, the carrier responded. The claims representative enclosed a copy of N.J.S.A. 39:6A-13 and stated:

the examination can be conducted in the area of closest proximity to the insured's residence. Since we have examining physicians in Metuchen, Spotswood, Bound Brook and Plainfield, the Spotswood location is the closest proximity.*fn1

By letter dated November 15, 1985 counsel again wrote the claims representative. He contended:

It is is our position that the language used in the statute was intended not only to serve the convenience of the assured, but also to prevent the insurance companies from using their usual "stable" of physicians as they do for liability exams.

It is apparent that plaintiffs' position was that defendant's interpretation of the statute, permitting it to require an examination by its doctor in closest proximity to plaintiffs' residence, was ineffectual. In any event, plaintiffs did not appear for the

physical examination as noticed by defendant, PIP benefits were terminated, and ...


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