On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Before Judges Michels, Stern and Keefe.
The opinion of the court was delivered by KEEFE, J.A.D.
The Legislature amended N.J.S.A. 39:6A-8, effective March 12, 1990, to afford an injured party, who had no automobile to insure, and was not part of the household of an immediate family member who did, the benefit of the no-threshold option of N.J.S.A. 39:6A-8b. The issue presented on appeal is whether the amended statute should be applied retroactively to a cause of action arising, but not adjudicated, before the effective date of the amendment.*fn1
The Law Division Judge held that the amendment did not apply to plaintiff's action. Plaintiff appeals from that judgment, and we now reverse for the reasons stated herein.
On May 17, 1989, plaintiff was a passenger in an automobile operated by defendant Opara when it collided with a vehicle operated by defendant Dennison and owned by defendant Colonial Cadillac, Inc.. Plaintiff instituted suit against all parties in May 1990, seeking damages for the personal injuries she sustained in the accident. Defendant Colonial Cadillac was dismissed by summary judgment. A jury later determined Dennison to be 100% responsible for the accident.
In the ensuing damage trial, the trial Judge refused to apply the 1990 amendment to N.J.S.A. 39:6A-8 to plaintiff's claim, and instructed the jury on the law pertaining to verbal threshold claims. N.J.S.A. 39:6A-8a. The jury returned a verdict of no cause of action. On appeal, plaintiff contends that the trial Judge erred when he refused to instruct the jury as if plaintiff had a no-threshold requirement. N.J.S.A. 39:6A-8b.
The verbal threshold and no-threshold options were inserted into N.J.S.A. 39:6A-8 by "amendatory and supplementary" legislation in 1988. L.1988, c.119, § 6 eff. Jan. 1, 1989. The verbal threshold option found in the current version of N.J.S.A. 39:6A-8a replaced a provision which had permitted suits for noneconomic loss when the medical treatment for such injuries was at least $200, whereas the no-threshold provisions of the current version of N.J.S.A. 39:6A-8b replaced paragraph b. of the 1983 statute that required a higher medical treatment threshold ($1,500 or more) in order to bring suit for noneconomic loss. L.1983, c.362, § 14, eff. Oct. 4, 1983.
Defendant concedes that plaintiff did not own a car and was not a member of a household that did. As such, the fourth paragraph of N.J.S.A. 39:6A-8 applies to plaintiff. The 1983 version of the statute as it pertained to people in plaintiff's class provided:
The tort option provisions of subsection a. of this section shall also apply to the right to recover for noneconomic loss of any person eligible for benefits pursuant to section 4 of P.L. 1972, c. 70 (C. 39:6A-4) but who is not required to maintain personal injury protection coverage and is not an immediate family member, as defined in section 14.1 P.L. 1983, c. 362 (C. 39:6A-1), under an automobile insurance policy.
Thus, under the 1983 version, people in plaintiff's class would have received the benefit of the lower threshold option ($200 of medical treatment) rather than the stricter ...