On appeal from the Superior Court of New Jersey, Law Division, Union County.
Approved for Publication June 30, 1997.
Before Judges D'Annunzio, Newman and Villanueva The opinion of the court was delivered by D'annunzio, J.A.D.
The opinion of the court was delivered by: D'annunzio
The opinion of the court was delivered by
Plaintiff in this automobile negligence action appeals, pursuant to leave granted, from an order determining that she is subject to the verbal threshold contained in her daughter's automobile insurance policy. We reverse.
Plaintiff, Fermina Ibarra, lived with her daughter, Lourdes Ibarra (Lourdes). Plaintiff was a passenger in Lourdes' automobile in July 1995 when it was struck in the rear by a vehicle operated by defendant, Jason Vetrano. Plaintiff owned no vehicle and had no automobile insurance policy of her own. Sentry Insurance insured Lourdes' vehicle, and she was the named insured. Plaintiff was entitled to personal injury protection (PIP) benefits under N.J.S.A. 39:6A-4 because she sustained an injury "arising out of ownership, operation, maintenance or use of an automobile." Ibid. Because plaintiff had no automobile insurance policy of her own, Lourdes' carrier, Sentry, paid PIP benefits to plaintiff.
Pursuant to N.J.S.A. 39:6A-8.1 (section 8.1), Lourdes had elected the "verbal threshold" contained in N.J.S.A. 39:6A-8a (section 8a). A person subject to the verbal threshold may not sue for noneconomic loss unless her personal injuries fit within at least one of nine categories of injury defined in section 8a. An insured party not subject to the verbal threshold may sue for noneconomic loss even if the injury does not fit within one of the defined categories. N.J.S.A. 39:6A-8b (section 8b).
Plaintiff moved for a determination that she was not subject to the verbal threshold contained in section 8a with regard to her personal injury action against Vetrano. Section 8b, the no threshold section, provides in part:
The tort option provisions of subsection b. 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 of P.L.1983, c. 362 (C. 39:6A-8.1), under an automobile insurance policy.
As previously indicated, plaintiff was eligible for PIP benefits under Lourdes' policy. Because plaintiff did not own an automobile, she was "not required to maintain personal injury protection coverage." Section 8b; N.J.S.A. 39:6A-4. The issue, therefore, was whether plaintiff was "an immediate family member . . . under an automobile insurance policy." A related issue was whether Lourdes' election of the verbal threshold contained in Sentry's policy barred plaintiff.
Section 8.1a resolves both issues. It provides:
The tort option elected shall apply to the named insured and any immediate family member residing in the named insured's household. "Immediate family member" means the spouse of the named insured and any child of the named insured or spouse residing in the named insured's household, who is not a named insured under another automobile insurance policy.
The trial court determined that because plaintiff was injured while occupying an automobile and, therefore, had a right to receive PIP benefits, she was bound by Lourdes' election of the verbal threshold. In so ruling, the court relied on Beaugard ...