Before Judges D'Annunzio, Cuff and Collester
The opinion of the court was delivered by: D'annunzio, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 1999
On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
The issue is whether an uninsured motorist may recover medical expenses and lost income from a tortfeasor in an automobile negligence case.
Plaintiff, Frederick Monroe, a resident of Paterson, N.J., owned a 1976 Oldsmobile registered in New Jersey. In violation of N.J.S.A. 39:6A-3 and 6B-1, Monroe had failed to insure his vehicle. On August 7, 1993, Monroe was operating his uninsured vehicle in Paterson when he collided with a vehicle owned by the City of Paterson and operated by Victor M. Santiago, a City employee.
Monroe sued for damages consisting of economic loss, medical expenses and lost wages, and non-economic loss, such as pain and suffering. Because Monroe's claim is against a public entity and public employee, the New Jersey Tort Claims Act applies. N.J.S.A. 59:1-1 et. seq. The claim, however, is based on the alleged negligent operation of a motor vehicle and, therefore, implicates the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -35, popularly known as the No-Fault Law.
The trial court granted partial summary judgment to defendants regarding Monroe's claim for non-economic loss, because Monroe had not established the injury threshold defined in N.J.S.A. 59:9-2(d) *fn1 of the Tort Claims Act. That determination is not an issue in this appeal.
Monroe pressed his claim for economic damages, and the liability issue was tried without a jury. The court apportioned responsibility for the collision ninety percent to Santiago and ten percent to Monroe.
Thereafter, defendant moved for summary judgment on the ground that Monroe was not entitled to recover economic damages because he had failed to insure his vehicle. The court denied defendants' motion and entered judgment in favor of Monroe for $9,240.00 in lost wages and $7,077.50 in medical expenses, for a total of $16,317.50. Judgment was entered for $14,685.75, reflecting the ten percent reduction for Monroe's negligence.
There is nothing in the record to suggest that Santiago's operation of the City's vehicle was cloaked with an immunity under the Tort Claims Act. Consequently, this is a motor vehicle negligence action *fn2 , and Monroe's right to recover medical expenses and lost wages is governed by the No-Fault Law. Brooks v. Odom, 150 N.J. 395, 406-07 (1997) (holding that claimant could not recover against a public entity, her "out-of-pocket expenses for co-payments and deductibles under her [PIP] coverage.")
At the core of this case is the application of N.J.S.A. 39:6A-12 (section 12). It provides:
Except as may be required in an action brought pursuant to section 20 of P.L. 1983, c. 362 (C. 39:6A-9.1), evidence of the amounts collectible or paid pursuant to sections 4 and 10 of P.L. 1972, c. 70 (C. 39:6A-4 and 39:6A-10), to an injured person, including the amounts of any deductibles, copayments or exclusions, including exclusions pursuant to subsection d. of section 13 of P.L. 1983, c. 362 (C. 39:6A-4.3), otherwise compensated is inadmissible in a civil action for recovery of damages for bodily injury by such injured person.
The court shall instruct the jury that, in arriving at a verdict as to the amount of the damages for non-economic loss to be recovered by the injured person, the jury shall not speculate as to the amount of the medical expense benefits paid or payable by an automobile insurer under personal injury protection coverage to the injured person, nor shall they speculate as to the amount of benefits paid or payable by a health insurer, health ...