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Harbold v. Olin

January 31, 1996

STEVEN HARBOLD, PLAINTIFF-RESPONDENT,
v.
GERRI OLIN, DEFENDANT-APPELLANT



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

Approved for Publication January 31, 1996.

Before Judges Shebell, Stern and Wallace. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by SHEBELL, P.J.A.D.

On January 12, 1995, plaintiff, Steven Harbold, brought an action in the Law Division against defendant, Gerri Olin, alleging negligent operation of defendant's automobile resulting in personal injuries to plaintiff, a bicyclist. Defendant answered, asserting among other defenses, that plaintiff was not entitled to recover non-economic losses pursuant to the verbal threshold statute, N.J.S.A. 39:6A-8.

On March 17, 1995 defendant moved for summary judgment on the verbal threshold issue. Plaintiff, in response, cross-moved for an order that he was not subject to the verbal threshold or, alternatively, had met the requirements of the verbal threshold. On May 3, 1995, the Law Division Judge denied defendant's motion. Plaintiff's cross-motion was listed for argument June 9, 1995. Defendant, in the interim, filed a motion for reconsideration of the ruling that the verbal threshold did not apply.

On June 9, 1995, after oral argument, the motion Judge denied defendant's motion for reconsideration, and held that:

This is a pedestrian; this is a bicyclist. For that purpose they are the same. A pedestrian, nor a bicyclist is not required to maintain PIP coverage and although the bicyclist may have been eligible for PIP under [] the mother's policy, the 1990 amendment to the statutes that you've cited would seem to indicate that although PIP may be applicable to pedestrians and bicyclists, that the verbal threshold is not.

Admittedly, there is not much case law on the subject that gives us guidance. But under the theory that the pedestrian/bicyclist is not required to maintain PIP coverage, then accordingly, the pedestrian/bicyclist, either one, in this case it's a bicyclist, is not required to -- is not subject to the verbal threshold.

In light of his ruling, he did not reach the issue of satisfaction of the verbal threshold. See Oswin v. Shaw, 129 N.J. 290, 294, 609 A.2d 415 (1992). We granted leave to appeal and now hold that this plaintiff is covered by the verbal threshold.

Plaintiff, while riding a bicycle, was struck by defendant's automobile on August 15, 1994. Then a minor, plaintiff resided in Vineland with his mother who elected a verbal tort-threshold on her automobile insurance policy. Plaintiff was paid PIP benefits through his mother's policy. Defendant, a State resident, operating a New Jersey registered vehicle, carried personal injury protection ("PIP coverage"), pursuant to N.J.S.A. 39:6A-4.

N.J.S.A. 39:6A-8, entitled "Tort exemption; limitation on the right to noneconomic loss," provides that there shall be elected, by any named insured required to maintain PIP coverage, one of two tort options. The first option is the verbal threshold. N.J.S.A. 39:6A-8a. The second is a non-threshold option. N.J.S.A. 39:6A-8b. N.J.S.A. 39:6A-8 states the consequences of the options as follows:

a. Every owner, registrant, operator or occupant of an automobile to which [no-fault PIP coverage] applies, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for noneconomic loss to a person who is subject to this subsection and who is either a person who is required to maintain the coverage mandated by this act, or is a person who has a right to receive benefits under section 4 of P.L.1972, c. 70 (C. 39:6A-4), as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State, unless that person has sustained a personal injury which [falls within one of nine categories]; or

b. As an alternative to the basic tort option specified in subsection a. of this section, every owner, registrant, operator, or occupant of an automobile to which [no-fault PIP coverage] applies, and every person or organization legally responsible for his acts or omissions, shall be liable for noneconomic loss to a person who is subject to this subsection and who is either a person who is required to maintain the coverage mandated by P.L.1972, c. 70 (C. 39:6A-1 et seq.) or is a person who has a right to receive benefits under section 4 of that ...


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