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Kilgannon v. Allstate Insurance Co.

Decided: February 20, 1990.

MARION KILGANNON AS ADMINISTRATRIX OF THE ESTATE OF KATHLEEN P. LUTZ, PLAINTIFF-RESPONDENT,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Union County.

Dreier, Scalera and Wefing. The opinion of the court was delivered by Wefing, J.s.c. (t/a).

Wefing

May the sister of a deceased who is killed in an automobile accident recover essential services benefits under the decedent's automobile insurance policy when the surviving sister resided in a separate household from that of the deceased? The trial judge who heard this matter on cross-motions for summary judgment concluded that she could and granted summary judgment to her. We have concluded that the surviving sister is not entitled to such essential service benefits and reverse.

The issue is presented in the following factual context. Kathleen Lutz died on June 14, 1987 in a one car automobile accident in which the car she owned and was driving struck a tree. She died that day. Ms. Lutz lived in Clark, New Jersey and her automobile was insured under a policy issued by defendant Allstate Insurance Company. She was unmarried at her death.

The plaintiff in this action, Marion Kilgannon, is Ms. Lutz's sister; she resides in Westfield, New Jersey and has been appointed administratrix of the estate. Ms. Kilgannon submitted a claim for essential services benefits under Ms. Lutz's automobile insurance policy and in support of that claim submitted an affidavit that she and her sister saw each other every day. Ms. Kilgannon did not know how to drive and Ms. Lutz drove her "everywhere she needed or wanted to go including food shopping, clothes shopping, doctor, appointment, etc." Ms. Lutz helped Ms. Kilgannon with chores around the house, including some painting and took care of Ms. Kilgannon when she was ill. After Ms. Lutz's death, Ms. Kilgannon incurred expenses in learning how to drive and purchasing a car.

Determination of the appeal requires construction of the applicable statutes.*fn1 N.J.S.A. 39:6A-4(c), provides in pertinent part:

Payment of essential services benefits to an injured person shall be made in reimbursement of necessary and reasonable expenses incurred for such substitute essential services ordinarily performed by the injured person for himself, his family and members of the family residing in the household. . . (emphasis added)

N.J.S.A. 39:6A-4(d) provides in pertinent part

In the event of the death of one performing essential services as a result of injuries sustained in an accident entitling such person to benefits under subsection (c) of this section, the maximum amount of benefits which could have been paid such person, under subsection (c), shall be paid to the person incurring the expense of providing such essential services.

Ms. Kilgannon argues that she, as a sister of the decedent, is entitled to those essential services benefits. Neither the statute nor the insurance policy under which the claim has been brought contains a definition of the term "family."

We are called upon to determine the distinction which the legislature sought to draw between "his family" and "members of the family residing in the household," keeping in mind that our goal in this process is to ascertain and to effectuate the intention of the legislature. State v. Grant, 196 N.J. Super. 470, 483 A.2d 411 (App.Div.1984). We are satisfied that the legislature must have intended a distinction, for the language selected by the legislature must not, if it can be avoided, be found to be inoperative, superfluous or meaningless. Matter of Sussex County Mun. Utilities Authority, 198 N.J. Super. 214, 486 ...


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