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Campbell v. New Jersey Auto. Full Ins. Underwriting Ass'n By and Through Pennsylvania Nat. Ins. Co.

Decided: February 15, 1994.

WILFRED CAMPBELL III, PLAINTIFF-APPELLANT,
v.
NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOCIATION BY AND THROUGH ITS SERVICING CARRIER PENNSYLVANIA NATIONAL INSURANCE CO., DEFENDANT-RESPONDENT, AND TRAVELERS INSURANCE CO., PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN, LEE J. YOON AND JEROME JOHNSON, DEFENDANTS



On appeal from Superior Court, Law Division, Camden County.

Petrella, Baime and Conley. The opinion of the court was delivered by Petrella, P.J.A.D.

Petrella

Wilfred Campbell III (Campbell) appeals from a summary judgment order entered in favor of New Jersey Automobile Full Insurance Underwriting Association (JUA) by the Law Division on October 23, 1992. We affirm.

Campbell, a Pennsylvania resident, was struck by an automobile driven by defendant Jerome Johnson while bicycling in Philadelphia on September 14, 1987, causing him various injuries.*fn1 Johnson apparently had stolen the vehicle in Pennsylvania from defendant Lee J. Yoon, the owner of the vehicle and a New Jersey resident. The JUA had issued Yoon an automobile insurance policy, which provided in the "liability coverage" section:

We will pay damages for bodily injury or property damage for which any covered person*fn2 becomes legally responsible because of an auto accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted.

The same insurance policy contained the following exclusion from coverage, among others:

A. We do not provide Liability Coverage for any person:

8. Using a vehicle without a reasonable belief that that person is entitled to do so.

Regarding "out of state coverage," the insurance policy provided:

If an auto accident to which this policy applies occurs in any state or province other than the one in which your covered auto is principally garaged, we will interpret your policy for that accident as follows:

If the state or province has:

1. A financial responsibility or similar law specifying limits of liability for bodily injury or property damage higher than the limit shown in the Declarations, your policy will provide the higher specified limit.

2. A compulsory insurance or similar law requiring a nonresident to maintain insurance whenever the nonresident uses a vehicle in that state or province, your policy will provide at least the required minimum amounts and types of coverage.

No one will be entitled to duplicate payments for the same elements of loss.

Campbell had originally sought liability coverage from either the JUA, through its servicing carrier Pennsylvania National Insurance Company (Penn National), or Pennsylvania Financial Responsibility Assigned Claims Plan (PFRACP), through its servicing carrier Travelers Insurance Company (Travelers).

The JUA, through its servicing carrier Penn National, paid Campbell PIP benefits, including medical bills and income continuation benefits, but refused to provide any further coverage. At the summary judgment hearing, the JUA explained that it had paid PIP benefits, but refused to provide further coverage, because the language of the PIP statute simply requires that the vehicle be involved in the accident. Counsel for the JUA stated:

[O]bviously the PIP is paid because of the difference in the language. And although some of the case law has pointed to the fact that this creates an anomaly, in fact, the distinction between the UM statute and the PIP statute is clear. And we're really resting our . . . case on that, that this is in essence a no insurance situation.

After the JUA denied coverage, Campbell sought coverage from Travelers, which denied it because the JUA had already paid PIP benefits and, thus, he had an available source of insurance coverage.*fn3

In August 1989, Campbell brought suit in the Commonwealth of Pennsylvania against the JUA and the PFRACP, among others, seeking insurance liability coverage.*fn4 The Pennsylvania court, however, dismissed the complaint as to the JUA on the ground it lacked jurisdiction. Afterwards, according to Campbell, "all parties agreed that the ...


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