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Roig v. Kelsey

Decided: March 15, 1993.

MICHAEL ROIG, PLAINTIFF-RESPONDENT,
v.
DAVID T. KELSEY, DEFENDANT-APPELLANT



On Appeal from the Superior Court of New Jersey, Law Division, Essex County.

Bilder, Baime and Wallace. The opinion of the court was delivered by Wallace, J.s.c. (temporarily assigned).

Wallace

[262 NJSuper Page 580] In this appeal we are asked to consider whether N.J.S.A. 39:6A-12 prohibits recovery of the medical deductible and copayment under a personal injury protection (PIP) policy. We conclude that so long as the injured party qualifies to bring suit under the relevant No-Fault insurance policy, he or she may include in that action against the tortfeasor the amount of the

deductible and co-payment not otherwise collectible from other insurance sources.

The facts are uncomplicated. On January 15, 1990, defendant, David Kelsey was injured in an automobile accident involving plaintiff, Michael Roig. Defendant was eligible for PIP benefits for his bodily injuries under an automobile insurance policy issued to his sister, the named insured, with whom he resided. This insurance policy contained the basic $250 medical expense deductible and twenty percent co-payment for medical expenses between $250 and $5,000. Defendant's medical treatment expenses totalled $1,769.00. Due to the deductible and co-payment, $553.80 of the medical expense was unpaid. Defendant had no other health insurance at the time of the accident which would pay the unpaid medical expenses and sought recovery from plaintiff.

On August 12, 1991, plaintiff filed a declaratory judgment action seeking relief from the payment of the outstanding medical bills. Defendant answered. Plaintiff filed a motion for summary judgment contending that pursuant to N.J.S.A. 39:6A-12, defendant was prohibited from recovering the amounts of the deductible and co-payment from plaintiff. Defendant opposed the motion and cross-moved for summary judgment on the grounds that N.J.S.A. 39:6A-12 permitted recovery of the medical deductible and co-payment from plaintiff.

The motion Judge concluded the Legislature intended to bar recovery of the deductible and co-payment from the tortfeasor, under N.J.S.A. 39:6A-12. He reasoned that the thrust of recent legislation was to transfer some of the cost of medical expenses from the automobile insurance industry to other health insurance carriers. Further he noted that to the extent the insured selects a higher deductible, the insured becomes a co-insurer since the insured chooses to bear the loss, rather than pay the additional premium. The motion Judge concluded that the legislative intent was so clear that any contra-indication

in the statute must yield to it and granted plaintiff's summary judgment motion. We disagree and reverse.

I

When the Legislature enacted the New Jersey Automobile Reparation Reform Act, L. 1972, c. 70, it intended a person's no fault automobile insurance to be an injured person's exclusive remedy for medical expense claims arising out of an automobile accident. Smelkinson v. Ethel & Mac Corp., 178 N.J. Super. 465, 469, 429 A.2d 422 (App.Div.1981). Although all medical expenses were to be paid regardless of fault, an injured person could only file a lawsuit when medical expenses exceeded a $200 threshold amount. L. 1972, c. 70, § 8. The Legislature hoped to eliminate minor injury claims from the court system and to reduce the cost of insurance. Prior to 1983, in the event an injured person was qualified to seek recovery of damages for bodily injury in a civil action, the amounts collectible or paid under personal injury protection coverage were not admissible. See N.J.S.A. 39:6A-12 (historical and statutory notes).

Insurance premiums continued to rise. The Legislature sought to combat the rising cost of insurance by introducing, among other things, tort options that an insured might select as part of the New Jersey Automobile Insurance Freedom of Choice and Cost Containment Act of 1984, L. 1983, c. 362. The insured was given the option to choose between a $200 or a $1,500 medical expense threshold before a personal injury suit could be filed. In addition, the insured had the option to select medical expense deductibles of $500, $1,000 or $2,500. See L. 1983, c. 362, ยง 14.1. The Legislature expected that the coordination of other health benefits with the personal injury protection coverage options would help to reduce the costs of automobile insurance. At the same time the Legislature ...


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