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Ingersoll v. Aetna Casualty and Surety Co.

Decided: December 15, 1993.

BONNIE INGERSOLL, PLAINTIFF, AND BRIAN LIHOU, PLAINTIFF-APPELLANT,
v.
AETNA CASUALTY AND SURETY COMPANY A/K/A AETNA LIFE AND CASUALTY A/K/A AETNA, DEFENDANT-RESPONDENT, AND THE NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOCIATION, HERBERT E. GASKILL INSURANCE AGENCY, HERBERT E. GASKILL, JR., AND JOHN DOE(S), DEFENDANTS



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Stern, Keefe and Newman. The opinion of the court was delivered by Keefe, J.A.D.

Keefe

Plaintiff Brian Lihou appeals from the entry of summary judgment entered in favor of defendant Aetna Casualty & Surety Company (Aetna), denying plaintiff's claim that he was entitled to extended medical benefits under the Aetna policy. We affirm.*fn1

On October 26, 1987 plaintiff was operating his brother William's motorcycle when it was struck in the rear by an automobile operated by Lisa Hamilton. As a result of the accident, plaintiff incurred medical bills in excess of $35,000.

At the time of the accident, plaintiff owned an automobile insured with the New Jersey Full Automobile Insurance Under-writing Association (JUA). That policy contained an extended medical pay benefit provision in the amount of $10,000. During the course of the litigation, JUA agreed to pay plaintiff the full coverage under that provision, and the case was settled as to JUA.*fn2

Bonnie Ingersoll, plaintiff's mother, was a named insured in an automobile insurance policy issued by Aetna at the time of the accident. The Aetna policy also contained an extended medical benefit provision with a limit of $10,000. It is uncontested that

plaintiff, as a "relative of the named insured," was an "insured person" as defined in the extended medical benefit provision of the policy. Aetna declined coverage and suit was instituted.

During the course of the litigation, Aetna moved for summary judgment. Plaintiff unsuccessfully opposed the motion, resulting in an order granting summary judgment in favor of Aetna. Plaintiff's motion for reconsideration was also unsuccessful, and he now appeals.*fn3

Plaintiff concedes that he was not entitled to collect his medical expenses under the basic medical expenses provision of the JUA policy. This is so because plaintiff was operating a motorcycle at the time of the accident, and therefore did not sustain bodily injury "as a result of an accident while occupying, entering into, alighting from or using an automobile[.] . . ." N.J.S.A. 39:6A-4. See, Truppa v. Prudential Property & Casualty Co., 237 N.J. Super. 269, 567 A.2d 296 (Law Div.1989) (Holding that Hoglin v. Nationwide Mut. Ins. Co., 144 N.J. Super. 475, 366 A.2d 345 (App.Div.1976), which would have provided statutory medical coverage to plaintiff under these circumstances because plaintiff's motorcycle was involved in an accident with an automobile, had been effectively overruled by the 1983 amendment to N.J.S.A. 39:6A-4.)

Undoubtedly, it was because of Truppa that plaintiff accepted payment from JUA under the extended medical benefit provision of his policy, which had a $10,000 limit, rather than pursue a claim under the basic medical expense provision of the policy.

On appeal, plaintiff reasons that, because he is not entitled to medical benefits pursuant to the provisions of N.J.S.A. 39:6A-4, his claim for extended medical expense benefits under the Aetna policy is necessarily ...


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