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Liberty Mutual Insurance Co. v. Selective Insurance Co.

Decided: January 5, 1993.

LIBERTY MUTUAL INSURANCE CO., PLAINTIFF,
v.
SELECTIVE INSURANCE CO., DEFENDANT



Alley, J.s.c.

Alley

A. Introduction:

Plaintiff, Liberty Mutual Insurance Company ("Liberty Mutual"), seeks summary judgment against defendant Selective Insurance Co. ("Selective"), which opposes the motion and seeks summary judgment in its favor on the same issue by way of cross-motion.

After a motor vehicle accident between insureds of Liberty Mutual and Selective, Liberty Mutual paid personal injury protection benefits ("PIP") to its insured. The full amount of the tortfeasor's underlying primary coverage having been exhausted, Liberty Mutual now seeks reimbursement from Selective, the excess carrier of the tortfeasor. This relief is invoked under N.J.S.A. 39:6A-9.1, which provides for reimbursement of those expenses on a direct insurer-to-insurer basis. The question presented is whether an "insurer" liable under that statute includes the wrongdoer's excess carrier if its primary coverage has been exhausted. This opinion decides that the excess carrier is liable as an "insurer." No other reported case has decided this issue, although one unreported recent Law Division decision reached a contrary result.

B. Facts:

On August 3, 1987, Charles R. Self was travelling west on Warwick Turnpike in West Milford, New Jersey, when an eastbound dump truck operated by Thomas E. Thoenil crossed into the westbound lanes and collided with Self's vehicle, resulting in Self's death.

An automobile insurance policy was issued to Self by Liberty Mutual. The dump truck's owner was Harry A. Kimbell & Son, Inc., which had primary automobile liability coverage through a policy issued by American Reliance Insurance Company and excess coverage under a policy issued by Selective.

The tortfeasor was not required to maintain PIP coverage on its dump truck. In accordance with recognized procedures under N.J.S.A. 39:6A-9.1, therefore, Liberty Mutual filed a claim for reimbursement of its insured's PIP expenses against American Reliance in intercompany arbitration. On June 1, 1990, an arbitration award of $10,590.00 was entered in favor of Liberty Mutual on that claim. American Reliance informed Liberty Mutual, however, that it had already paid out its liability limit of $1,000,000.00 under its primary policy and therefore refused to pay the PIP expenses. Liberty Mutual then sought payment from the tortfeasor's excess carrier, Selective, but Selective refused to make payment, asserting that as the issuer of an excess policy it was not obligated to reimburse Liberty.

C. Discussion:

This motion for summary judgment pursuant to R. 4:46 involves an issue that is entirely a legal question, namely, Liberty Mutual's right, if any, to reimbursement under the governing statute against the excess carrier, Selective, for the PIP benefits. Liberty Mutual claims that N.J.S.A. 39:6A-9.1 gives it a statutory right to PIP payment reimbursement against the excess coverage issued by Selective. The statute provides in relevant part:

An insurer paying personal injury protection benefits . . . as a result of an accident occurring within this State, shall . . . have the ...


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