On appeal from Superior Court, Law Division, Mercer County.
Gaulkin, Brody and Landau. The opinion of the court was delivered by Landau, J.A.D.
We consider, in this consolidated opinion, the five above-captioned appeals. While not entirely congruent in their underlying facts or policy provisions*fn1, each involves the common question whether the New Jersey Full Insurance Underwriting Association (JUA) can, following its termination of Personal Injury Protection (PIP) benefit payments upon determining that further treatment is unnecessary or unjustifiable*fn2, require the PIP claimant to submit to an examination or statement under oath. In each case, JUA brought a declaratory judgment action (N.J.S.A. 2A:16-50, et seq.) in the Law Division, Mercer County, initially seeking a declaration that the insured materially breached the contract of insurance by failing to submit to a statement under oath as provided for under the contract, that the insurer's ability to defend in arbitration had been prejudiced, and that the contract thus had been rendered void. JUA later modified informally the latter request, seeking to render void only the PIP portion of coverage under the policies.
The complaints indicate that the insureds had already demanded arbitration in the American Arbitration Association
under their policies when the examination under oath requests were made.*fn3
After considering cross-motions for summary judgment, the motion Judge denied JUA's motions, and dismissed its complaints, relegating the parties to the arbitrator for discovery rulings, as well as for the coverage determination. JUA appealed. We reverse because the judgments under review too narrowly construe the purpose of examination-under-oath requirements, and conflict with duties statutorily imposed upon automobile insurance carriers to implement the important public policy against insurance fraud.
JUA urges that failure of the insureds to comply with its request for examination under oath, even though made after termination of benefits and after the insureds demanded arbitration, rendered void at least the PIP coverage agreements, if not the entire policies. In consequence, JUA argues, there can be no rights to further PIP benefits.
JUA says that a duty to comply with its requests for examination under oath arises under all five policies. The Allstate forms contain only a general requirement that a person seeking coverage must "cooperate" in any investigation by the carrier. The Selective and State Farm policies contain, in addition to the cooperation clause, a specific requirement that persons seeking coverage must submit to examinations under oath.
JUA also relies upon N.J.S.A. 39:6A-13, which it reads as making clear the responsibility of injured claimants to participate in any discovery deemed necessary to reasonably prove ...