The opinion of the court was delivered by: JOSEPH E. IRENAS
In this diversity case defendants move for an order, in limine, determining that the provisions of N.J.S.A. 39:6A-12 should be applied to bar the plaintiff from introducing at trial evidence of her medical expenses, notwithstanding that her insurance carrier has paid only $ 10,000 of these expenses. Resolution of this issue depends on a determination of whether N.J.S.A. 17:28-1.4 obligates an insurer who issues a policy to a Pennsylvania resident insuring a vehicle registered in that state to provide personal injury protection ("PIP") required by N.J.S.A. 39:6A-A where 1) the insured is injured in an accident occurring in New Jersey and 2) New Jersey's PIP coverage exceeds that provided by Pennsylvania law.
On January 26, 1988, in Camden County, plaintiff, a Pennsylvania resident driving an automobile registered and insured in that state, collided with a vehicle driven by a New Jersey resident, registered in New Jersey and insured by a policy issued in New Jersey. Plaintiff was insured by Nationwide Insurance Company ("Nationwide") which issued the policy in Pennsylvania but which has at all relevant times been authorized to do business in the State of New Jersey.
On July 8, 1992 the court bifurcated the trial and set a trial date on issues of liability only. Five days later defendants stipulated as to liability leaving only damages as an open issue.
Plaintiff has alleged that as a result of the collision she has undergone at least two major back surgeries and sustained medical bills of approximately $ 100,000. Her policy, which incorporates Pennsylvania's PIP requirements, provided coverage for only $ 10,000 and plaintiff alleges that the carrier has refused to pay any more.
In this action plaintiff seeks to introduce evidence with respect to and recover all medical expenses in excess of $ 10,000. Defendants assert that plaintiff's carrier is obligated to her for up to $ 250,000 in medical expenses pursuant to N.J.S.A. 39:6A-4 and the "deemer" clause found in N.J.S.A. 17:28-1.4 ("Section 1.4"), which provides in relevant part:
Any insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State . . . which sells a policy providing automobile or motor vehicle liability insurance . . . in any other state . . . . shall include in each policy coverage to satisfy at least the . . . personal injury protection benefits coverage pursuant to [N.J.S.A. 39:6A-4] . . . . whenever the automobile or motor vehicle insured under the policy is used or operated in this state.
Section 1.4 goes on to require every New Jersey authorized insurer to file a written certification of compliance with this requirement and, should the insurer forget, also provides that any out-of-state policy will be "construed" as providing this coverage.
Section 1.4 was originally adopted by the New Jersey Legislature in 1985 (L. 1985, c. 520, § 18), effective January 21, 1986. This provision was amended in 1988, effective January 1, 1989 (L.1988, c.119, § 1) to also impose the verbal threshold (N.J.S.A. 39:6A-8(b)) on out-of-state drivers who have accidents in New Jersey. However, that amendment did not change the portions of the law relevant to this motion.
Defendants' argument that Nationwide was obligated to provide the plaintiff with PIP medical expense benefits is accepted by the court, not so much on the sophisticated conflict of laws analysis set forth in defendants' brief
but rather on the simpler premise that Section 1.4 creates a cause of action for an out-of-state resident injured in a New Jersey automobile accident against his own liability insurer for the full PIP benefits provided by N.J.S.A.39:6A-4, provided the insurer does business in New Jersey. This cause of action exists notwithstanding that such benefits may not be actually included (other than by the metaphysical act of ...