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Swydersky v. Prudential Commercial Insurance Co.

Decided: February 3, 1993.

BARBARA J. SWYDERSKY, PLAINTIFF,
v.
PRUDENTIAL COMMERCIAL INSURANCE COMPANY, A SUBSIDIARY OF THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT



Kleiner, J.s.c.

Kleiner

This opinion is a supplemental decision to a prior opinion of the court, Swydersky v. Prudential Commercial Insurance Company, 229 N.J. Super. 608, 552 A.2d 240 (Law Div.1988), reversed on appeal, 240 N.J. Super. 37, 572 A.2d 219 (App.Div.1990).

The factual history giving rise to this litigation is set forth in both reported decisions and need not be recited again within this supplemental opinion.

The original complaint filed by the plaintiff sought alternative forms of relief. This court chose to resolve the dispute by way of statutory construction, and it was this court's analysis of the statute which was reversed on appeal. The plaintiff had sought initially a declaration that the entire statutory scheme set forth in N.J.S.A. 39:6A-4.3 was unconstitutional, and although that argument was briefed by counsel and argued orally on the original return day of the motion, the constitutional arguments were not addressed by this court in its original opinion, nor were they addressed by the Appellate Division in its decision.

Subsequent to the publication of the Appellate Division decision, plaintiff sought leave in a timely fashion for reconsideration by the Appellate Division and specifically requested the Appellate Division to address the issues raised concerning constitutionality. The Appellate Division declined to hear argument on the constitutional issues but remanded the matter to the trial court for a consideration of those arguments and a ruling upon the constitutional issues. This opinion, therefore, concentrates on the constitutional questions which were raised but were not addressed in this court's original opinion.

This court originally determined, as a matter of statutory construction, that the deductible and "set-off" provisions in

Swydersky's son-in-law's policy did not apply to her because she was not a "resident relative" within her son-in-law's house-hold according to N.J.S.A. 39:6A-4.3.*fn1

In granting summary judgment to Swydersky, this court reasoned that "[t]o bind an economically independent family member residing in the home of an insured to options elected pursuant to N.J.S.A. 39:6A-4.3 would defeat the purpose of providing . . . cost containment options." Id., 229 N.J. Super. at 615, 552 A.2d 240. The court added that "[t]he more appropriate interpretation would exempt resident relatives who are not members of the immediate family from less comprehensive insurance coverage resulting from option selections over which they are given no choice and the result of which do not benefit them, directly or indirectly, from reduced insurance premiums." Id. at 615, 552 A.2d 240.

The Appellate Division, in reversing this court, held that Swydersky, as a resident mother-in-law, was "a member of the insured's family residing in the household . . . [and therefore] is bound by the cost containment options which [her son-in-law] selected under N.J.S.A. 39:6A-4.3." Id., 240 N.J. Super. at 41, 572 A.2d 219.

Swydersky is a resident in the household of her daughter and son-in-law, David Sutton. On March 27, 1985, Swydersky was a passenger in Sutton's automobile when it was involved in a collision with another vehicle owned by Leonard Holmes, Jr. Swydersky was injured as a result of the accident and sustained $3,254.18 in medical expenses. At the time of the accident Swydersky was neither a car owner nor a named insured under any automobile insurance policy. She filed a claim against Prudential for payments of Personal Injury Protection (PIP) benefits under Sutton's policy, but was not paid in a prompt manner. In response to this delay, Swydersky brought suit against Prudential seeking payment.

Prudential paid Swydersky's medical expenses over a deductible of $1,250 and applied this same deductible to Sutton, who also was insured, pursuant to Sutton's $2,500 deductible choice, under N.J.S.A. 39:6A-4.3(a). Prudential also set-off $1,339.31 from a $11,500 settlement reached with Swydersky for non-economic losses. This set-off was required by terms ...


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