On appeal from Superior Court, Law Division, Hunterdon County.
Approved for Publication April 20, 1995.
Before Judges King, Muir, Jr. and Eichen. The opinion of the court was delivered by Eichen, J.s.c., t/a
The opinion of the court was delivered by: Eichen
Plaintiff, Elizabeth Anne Beaugard, appeals from a summary judgment dismissing her motor vehicle negligence personal injury action against defendant Christina Johnson (defendant). The motion Judge determined plaintiff was bound by the verbal threshold option elected by her father in his automobile liability policy. She resided in her father's household. Because she had failed to meet the verbal threshold, N.J.S.A. 39:6A-8a, in New Jersey's no-fault automobile-insurance statute, N.J.S.A. 39:6A-1 to 35, defendant was entitled to judgment as a matter of law.
On appeal, plaintiff contends she is not bound by the verbal threshold election in her father's policy. She contends she was not entitled to collect personal injury protection ("PIP") benefits under N.J.S.A. 39:6A-4 as she was an occupant of a commercial vehicle, and, therefore, defendant cannot assert the verbal threshold defense set forth in N.J.S.A. 39:6A-8a against her. She also contends that even if we determine she is bound by the verbal threshold, there is sufficient objective medical evidence in the record to satisfy the requirements of the verbal threshold statute. See Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415 (1992).
Our review of the record and applicable law persuades us the motion Judge erred in concluding plaintiff was subject to the verbal threshold provisions of her father's policy. We reverse the summary judgment. Accordingly, we need not decide the Oswin issue or the cross-appeal.
On May 4, 1990, plaintiff, then age fifteen, suffered personal injuries in an intersection accident when the school bus on which she was a passenger collided with a motor vehicle operated by defendant. Defendant allegedly failed to observe a stop sign and collided with the bus. As a result of the impact, plaintiff was thrown from her seat and struck and injured her left shoulder and knee.
The record reflects that even though plaintiff's father's automobile policy provided no-fault benefits, his insurer disclaimed coverage because plaintiff was a bus passenger and not entitled to receive PIP benefits. Neither party disputes plaintiff's PIP ineligibility under N.J.S.A. 39:6A-4.
The motion Judge held plaintiff was subject to the verbal threshold requirements of N.J.S.A. 39:6A-8a. The Judge concluded that if an accident is caused by an automobile and the insurance coverage seemingly available to the injured person contains the verbal threshold option, defendant is exempt from liability for non-economic loss. The Judge reasoned:
As I read N.J.S.A. 39:6A-8 . . . [a defendant is] "exempted from tort liability for non-economic loss to a person who . . . has a right to receive benefits under N.J.S.A. 39:6A-4" . . .
N.J.S.A. 39:6A-4 makes it clear that if the accident is caused by an automobile and results in personal injury to the plaintiff, the plaintiff's insurance policy shall provide no-fault coverage for those injuries.
Since the accident in the present case was caused by an automobile,. . . and the insurance coverage issued to plaintiff's father, Peter Beaugard, provided for the limited tort option, ...