Before this court are two motions which again require a New Jersey court to address the validity and applicability of New Jersey's "No-Fault" automobile insurance laws. Specifically, plaintiff Martin H. Watkins brings this motion to strike the separate defense raised in the responsive pleading of defendant, Margaret E. Davis which contends:
The accident set forth in the Complaint occurred after the effective date of the New Jersey Reparations Reform Act, N.J.S.A. 39:6A-1, et seq., and therefore plaintiffs (sic) have failed to state (a) cause of action against defendants (sic).
The defendant has filed a cross-motion for summary judgment on the basis that plaintiff's cause of action is barred due to his failure to meet the statutory "verbal threshold" to be eligible to sue for noneconomic loss.
For the purposes of both motions, the facts are essentially uncontested. On June 16, 1989, plaintiff was involved in a motor vehicle accident in East Amwell Township, County of Hunterdon, State of New Jersey. It is alleged that plaintiff's vehicle was struck in the rear by the vehicle driven by defendant,
Margaret E. Davis. Plaintiff filed his complaint in this court seeking recovery from the defendant for his pain and suffering. For the purposes of the issues addressed in this opinion, defendant is presumed to be entirely liable for the accident.
At all times relevant hereto, Mr. Watkins was a Pennsylvania resident and was insured with an automobile liability insurance policy written through Aetna Life and Casualty Insurance Company in Pennsylvania. Aetna Life and Casualty Insurance Company was also authorized to issue policies of automobile insurance in the State of New Jersey. The policy of insurance in question provided the plaintiff with liability coverage in addition to first party (PIP) benefits under Pennsylvania law. At the time of this accident, the Commonwealth of Pennsylvania did not limit the right of an individual to bring an action for noneconomic damages arising out of a motor vehicle accident.
Plaintiff brings this motion to strike the separate defense of the defendant which asserts that the plaintiff's cause of action is barred by his failure to meet the New Jersey verbal tort threshold requirements. Specifically, the plaintiff asserts that the portions of the New Jersey statutes that apply the verbal tort threshold requirements to out of state drivers whose insurance companies are authorized to do business in New Jersey violates his constitutional rights.
Plaintiff challenges the constitutionality of N.J.S.A. 17:28-1.4 which provides:
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 coverage, or any similar coverage, in any other state or in any province of Canada, shall include in each policy coverage to satisfy at least the liability insurance requirements of (N.J.S.A. 39:6B-1) or (N.J.S.A. 39:6A-3), the uninsured motorist insurance requirements of (N.J.S.A. 17:28-1.1), and personal injury protection benefits coverage pursuant to (N.J.S.A. 39:6A-4) or of (N.J.S.A. 17:28-1.3), whenever the automobile or motor vehicle insured under the policy is used or operated in this State.
Any liability insurance policy subject to this section shall be construed as providing the coverage required herein, and any named insured, and any immediate family member as defined in (N.J.S.A. 39:6A-8.1), under that policy,
shall be subject to the tort option specified in subsection a of (N.J.S.A. 39:6A-8). (emphasis added).
As plaintiff's insurance company, Aetna Life and Casualty Insurance Company was an insurer authorized to transact and/or was transacting automobile insurance business in New Jersey, the liability insurance policy provided to the plaintiff in Pennsylvania is construed under this statute to provide the "No-Fault" coverage required in New Jersey.
Moreover, plaintiff is therefore subject to the tort option specified in N.J.S.A. 39:6A-8(a). That statute provides:
Every owner, registrant, operator or occupant of an automobile to which (N.J.S.A. 39:6A-4), personal injury protection coverage, regardless of fault, applies, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for noneconomic loss to a person who is subject to this subsection and who is either a person who is required to maintain the coverage mandated by this act, or is a person who has a right to receive benefits under (N.J.S.A. 39:6A-4), as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State, unless that person has sustained a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
Thus, the defendant, Margaret E. Davis would be exempt from tort liability for the plaintiff's noneconomic loss unless the plaintiff has sustained a personal injury falling within at least one of the nine categories outlined above.
I. CONSTITUTIONALITY OF N.J.S.A. 17:28-1.4, THE "DEEMER STATUTE"
Plaintiff generally alleges that N.J.S.A. 17:28-1.4 or the "deemer statute" violates various constitutional rights. However, plaintiff does not cite any authority or make any legal arguments as to these various rights and in substance only argues that this court should find N.J.S.A. 17:28-1.4 to be unconstitutional under the Equal Protection Clause, U.S. Const.
Amend. XIV. It is recognized that N.J. Const. art. I, para. 2 "like the fourteenth amendment, seeks to protect against inJustice and against the unequal treatment of those who should be treated alike." Greenberg v. Kimmelman, 99 N.J. 552, 568, 494 A.2d 294 (1985).
Plaintiff alleges that he is a member of a class that is being denied equal protection under the law. The class is identified as out-of-state automobile drivers that operate an automobile in New Jersey and whose insurance carriers are authorized to transact or do business in this state.
As a preliminary matter, this court finds that the statute in question does not operate to the disadvantage of a "suspect class" or impinge upon a "fundamental right", thereby requiring strict judicial scrutiny. A suspect class is one "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio School District v. Rodriguez, 411 U.S. 1, 28, 93 S. Ct. 1278, 1294, 36 L. Ed. 2d 16 (1973). Fundamental rights are those which are "explicitly or implicitly guaranteed by the Constitution." Id. at 33, 93 S. Ct. at 1297.
Neither does the statute regulate a "semi-suspect" class or substantially affect a fundamental right in an indirect manner subjecting it to an "intermediate scrutiny" equal protection analysis. An example of a "semi-suspect" class which has been subjected to intermediate scrutiny is one based upon gender. Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976). A statute requiring filing fees for primary elections is an example of a statute found to substantially affect a fundamental right in an indirect manner. Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972). However, neither poverty, disability, ...