Rosemary Higgins Cass, J.s.c.
ROSEMARY HIGGINS CASS, J.S.C.
Before me is a motion for summary judgment by co-defendant Penn National Mutual Casualty Company (hereinafter Penn National) in the above captioned matter. At issue is whether the phrase "claims or policies written by the association" within N.J.S.A. 17:30E-7(e) affords immunization from liability to servicing carriers of the New Jersey Automobile Full Insurance Underwriting Association (hereinafter NJAFIUA) for all claims, whatever their nature, or from claims arising from the policy only.
The case arises from a motor vehicle accident on or about April 21, 1989 which occurred in Newark, New Jersey. The plaintiff, Richard Peprah, was operating a Suzuki Samurai vehicle and was involved in a collision with a vehicle operated by co-defendant Rodney C. Jones. As a result of the accident, plaintiff suffered severe and extensive injuries. Plaintiff instituted suit against several defendants including American Suzuki Motor Corporation, Suzuki Motor Co., Ltd., Frederic L. Marcus, Esq. and Penn National.
Penn National moves for summary judgment based upon provisions of N.J.S.A. 17:30E-7(e) as Penn National is a "servicing carrier" for NJAFIUA and as such is not held to any "individual" liability on claims or policies written by the NJAFIUA. However, plaintiff's theory of liability against Penn National is that Penn National negligently permitted the Suzuki vehicle to be lost and/or wrongfully disposed of without plaintiff's consent. Thus, plaintiff's theories against Penn National are based upon independent tortious acts performed by Penn National.
The dispute, then, focuses upon whether N.J.S.A. 17:30E-7(e) insulates Penn National from liability for tortious and other acts, or simply from claims arising from the policy.
Although its legislative history does not address the narrow issue as stated above, i.e., whether "or" is disjunctive rendering "claims" and "policies" distinct so as to give the statute very broad coverage, interpretive case law and well-settled agency law accord in the view that N.J.S.A. 17:30E-7(e) affords immunity from liability to servicing carriers for claims arising under the policie(s) and not for all claims.
N.J.S.A. 17:30E-7, in relevant part, provides:
Pursuant to the plan of operation, the association shall have the power and duty to:
(e) Arrange for the issuance of automobile insurance to any qualified applicant through servicing carriers. Each servicing carrier shall issue policies in
the name of the servicing carrier, on behalf of the association, to the extent the plan of operation provides. Servicing carriers, as agents of the association, shall have no individual liability for claims or ...