On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, MID-L- 9374-99.
Before Judges A. A. Rodríguez, Collester*fn1 and
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal from a declaratory judgment action, to determine responsibility for personal injury protection (PIP) payments, we hold that the insolvency of an insured person's carrier does not render that person "uninsured" within the meaning of New Jersey automobile insurance statutes.
The facts are uncontroverted. Allstate Insurance Company (Allstate) appeals from an order declaring that it is responsible for all medical, hospital, and pharmaceutical expenses incurred by plaintiff, Matthew Jendrzejewski. On December 4, 1997, Jendrzejewski was crossing a street in Spotswood when he was struck by an automobile owned and operated by Harry S. Farrell. Farrell was insured by Allstate. At the time of the accident, Jendrzejewski owned an automobile which was insured by Home State Insurance Company. However, three months before the accident, Home State had been declared insolvent. Due to Home State's insolvency, the Commissioner of the Department of Banking and Insurance directed, pursuant to the New Jersey Property-Liability Insurance Guaranty Association Act (PLIGA), N.J.S.A. 17:30A-1 to -20, that claims against Home State's insureds be administered by PLIGA.
Jendrzejewski filed a claim for PIP benefits from both PLIGA and Allstate. PLIGA denied the claim asserting that Jendrzejewski must first exhaust his health insurance coverage with Horizon Blue Cross/Blue Shield and then must look to Allstate for the balance of PIP benefits. Allstate denied Jendrzejewski's PIP claim because he was the named insured on the Home State policy.
Jendrzejewski instituted this declaratory judgment action against PLIGA and Allstate, seeking a judicial determination of responsibility for PIP benefits. PLIGA argued that PIP coverage under the Allstate policy must be exhausted before Jendrzejewski could recover statutory benefits from PLIGA. Allstate argued that PLIGA stands in the shoes of the insolvent Home State and, under New Jersey's "No Fault" statutory scheme, was primarily responsible for the payment of PIP benefits. Allstate argued alternatively that, due to Home State's insolvency, recovery of PIP benefits from Allstate was precluded because Jendrzejewski failed to maintain medical expenses benefits coverage on his motor vehicle pursuant to N.J.S.A. 39:6A-4.5(a).
Judge Robert A. Longhi decided in favor of PLIGA. In a letter opinion, the judge noted, among other things, that:
Allstate's claim that [Jendrzejewski] is precluded from recovering PIP benefits because he is deemed to have failed to maintain medical expense benefits as required by the Allstate policy and/or N.J.S.A. 39:6A-4.5(a) is without merit. The insolvency of Home State does not render [Jendrzejewski] uninsured nor is he deemed to be uninsured because under the statutory scheme that created [PLIGA], the Guaranty fund is the payor of last resort. Additionally [Jendrzejewski] was a pedestrian at the time of the accident and was not "operating an uninsured vehicle" as set forth in N.J.S.A. 39:6A-4.5(a).
On appeal, Allstate contends that: (1) its policy "is inapplicable pursuant to N.J.S.A. 39:6A, which sets forth the application of [PIP] benefits and permits coverage under only one primary automobile insurance policy for injuries sustained in any one accident;" (2) "N.J.S.A. 17:30A-12, which sets forth priority of claim of Associations in other states, is inapplicable when only New Jersey policies apply;" and (3) "if it is determined that [Jendrzejewski] was not a named insured of a policy providing [PIP] benefits coverage, then he is excluded from coverage under the Allstate policy." We disagree.
The first two contentions are clearly without merit. Our holding in Harrow Stores, Inc. v. Hanover Ins. Co., 315 N.J. Super. 547 (App. Div. 1998), is dispositive. We merely note that Allstate misconstrues ...