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Lumpkins v. Market Transition Facility of New Jersey

March 14, 1995

MICHELE LUMPKINS, PLAINTIFF,
v.
MARKET TRANSITION FACILITY OF NEW JERSEY, AND SERVICING AGENT, AND MATERIAL DAMAGE ADJUSTMENT, AND GENERAL ACCIDENT INSURANCE, DEFENDANTS.



Menza, J.s.c.

The opinion of the court was delivered by: Menza

CIVIL ACTION

MENZA, J.S.C.

This is an order to show cause seeking PIP payments.

It presents the question of which vehicle is responsible for PIP benefits when there is a multiple vehicle accident.

Plaintiff, a pedestrian, was injured when he was struck by an automobile insured by Market Transition Facility (MTF) of New Jersey which in turn had been rear-ended by an automobile insured by General Accident Insurance Company (GAL or General Accident). Plaintiff now seeks PIP payments from both Market Transition Facility and General Accident Insurance Company. General Accident opposes, contending that it is not responsible for PIP payments because its insured's automobile did not actually strike the pedestrian. It states that the PIP statute provides that only the automobile which actually strikes the pedestrian is responsible for PIP payments. General Accident concedes that it was responsible, at least in part, for the happening of the accident. This is a case of first impression in this state.

The statute, N.J.S.A. 39:6A-4, provides that PIP coverage is afforded to pedestrians injured by a qualifying automobile.

Every automobile liability insurance policy ... shall provide personal injury protection coverage ... to pedestrians sustaining bodily injury caused by the named insured's automobile or struck by an object propelled by or from such automobile.

The statute is stated in the disjunctive - an insured automobile is responsible for PIP payments to a pedestrian if the automobile either causes plaintiff's personal injuries or if it propels an object that strikes plaintiff causing injury. See Pine Belt Chevrolet, Inc. v. Jersey Cent. Power and Light Co., 132 N.J. 564, 578, 626 A.2d 434 (1993) (where the court stated that "the word "or" carries with it natural disjunctive import" which should not be disregarded absent contrary legislative intent).

This court will first address the meaning of the phrase "struck by an object propelled by or from the named insured's vehicle."

Only one New Jersey case, in dicta, has addressed this question. In Rankin v. Ovalles, 262 N.J. Super. 463, 621 A.2d 97, (Law Div.1993) a court, deciding a question of whether a pedestrian was entitled to PIP payments where there was a question of coverage, concluded that an automobile is not an object propelled by or from such automobile" under the meaning of the PIP statute.

The plain language and common sense of the statute does not suggest that in an impact between an insured and uninsured vehicle, the uninsured vehicle should be treated as an object propelled by the insured vehicle.

[Id. at 466.]

No other case has addressed the precise issue of whether an automobile may ...


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