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Foster v. Aetna Casualty and Surety Co.

March 2, 1990

HAROLD FOSTER, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR DANIEL BRENT FOSTER, PLAINTIFF,
v.
AETNA CASUALTY AND SURETY COMPANY, DEFENDANT



Kleiner, J.s.c.

Kleiner

This matter is before the court on a motion by Aetna Casualty and Surety Company for summary judgment. Aetna seeks to deny coverage for certain out-of-pocket expenses incurred by the plaintiff. Plaintiff cross-moves for partial summary judgment claiming Aetna is liable for these expenses under the personal injury protection (PIP) provisions of its automobile insurance policy.

Harold Foster, plaintiff in this matter, purchased a personal automobile insurance policy from Aetna in 1986. During the period of Aetna's coverage, Harold's son, Daniel, was injured in an automobile accident.

After receiving emergency treatment at Elmer Community Hospital, Daniel was transferred to a hospital in Philadelphia which was equipped to treat his severe trauma which included injuries to the bone structure of his face and loss of the sight in one eye due to severance of the optic nerve.

Daniel has had and will continue to have periodic treatments and reconstructive surgeries. This on-going specialized medical treatment can only be rendered in Philadelphia as there is no medical facility in Southern New Jersey which offers the specialized services required to correct Daniel's medical problems.

Harold Foster has incurred substantial expense in obtaining the medical treatment which has been ordered by his son's physicians. This has been paid by Aetna. Additionally, he seeks reimbursement under the PIP provisions of his auto policy with Aetna, for gasoline, parking fees, bridge tolls and lost wages incurred during his trips to Philadelphia from Elmer, N.J., a distance of 35 miles.

Defendant Aetna argues that Foster's out-of-pocket expenses, both past and future, are expenses of "inconvenience," and therefore are recoverable in any claim asserted or to be asserted on behalf of the infant plaintiff against the tortfeasor who caused the collision. Additionally, Aetna contends that the parent's expenses are not medical expenses, but merely transportation expenses incurred by a third party who transports an injured person for medical treatment.

Lastly, Aetna raises considerations of public policy in denying PIP coverage for these expenses. Specifically, Aetna contends payment of such claims require the legislature to enlarge and re-define the statute so as to permit insurance companies the opportunity to adjust premiums to meet an increased insurance risk.

There appear to be no cases which specifically address the issue of PIP coverage for out-of-pocket expenses incurred by an infant's parent. However, PIP provisions are intended to compensate auto accident victims and to provide the insured with prompt payment of medical expenses, lost wages, and other expenses without waiting for the outcome of litigation. PIP should be given the broadest application consistent with statutory language. Amiano v. Ohio Casualty Ins. Co., 85 N.J. 85, 90, 424 A.2d 1179 (1981).

N.J.S.A. 39:6A-4(a) states that PIP coverage includes "payment of all reasonable medical expenses incurred as a result of personal injuries sustained in an automobile accident." N.J.S.A. 39:6A-2(e) defines medical expenses as:

"Expenses for medical treatment, surgical treatment, dental treatment, professional nursing services, hospital expenses, rehabilitation services, x-ray, and other diagnostic services, prosthetic devices, ambulance services, medication, and other reasonable and necessary expenses resulting from treatment prescribed by persons licensed to ...


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