On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-7435-99.
Before Judges Pressler, Ciancia and Hoens.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2002
Defendants Royal Tours of America and Hector Mundo, its employee, appeal on leave granted from the denial of their motion for summary judgment dismissing the automobile-negligence complaint of plaintiffs Jorge O. Caviglia and Mabel Brun Caviglia, his wife. The motion was based on N.J.S.A. 39:6A-4.5, which, prior to its 1997 amendment, precluded an uninsured driver from recovering non- economic damages from the tortfeasor unless he met the verbal threshold. The 1997 amendment of that statute precludes an uninsured driver from asserting any cause of action against the tortfeasor. Judge Seymour Margulies, holding that the 1997 and 1998 versions of the statute are unconstitutional, *fn1 denied defendants' motion for summary judgment and permitted plaintiffs' action against defendants for non-economic damages to proceed. We affirm.
The facts are straightforward and undisputed. Plaintiff Jorge O. Caviglia was the owner of a 1984 Ford Tempo. The insurance covering that vehicle had been canceled. On October 13, 1997, while the vehicle was still uninsured, plaintiff had an accident while driving it. According to his complaint, his vehicle, while stopped, was sideswiped by a bus owned by defendant Royal Tours and operated by defendant Mundo. He claims to have suffered serious injuries. Plaintiff, joined by his wife Mabel Brun Caviglia, who sued per quod, then brought this action.
Defendants, relying on the 1997 statute, moved for summary judgment dismissing the complaint because the vehicle was uninsured. The motion was granted, and plaintiffs timely moved for reconsideration. The Attorney General was noticed of the constitutional challenge pursuant to R. 4:28-4 but chose not to intervene. On reconsideration Judge Margulies, for the reasons set forth in his written opinion dated July 18, 2002, concluded that the revised statute, because of its total preclusion of a right of action against the tortfeasor, ran afoul of the equal protection guarantees of the Fourteenth Amendment of the United States Constitution. A conforming order was entered, and we granted defendant's motion for leave to appeal. We agree with Judge Margulies and accordingly affirm.
Disposition of this appeal requires some abbreviated consideration of the originally enacted New Jersey Automobile Reparation Reform Act (No Fault Act), N.J.S.A. 39:6A-1 to -35, amended from time to time, comprehensively revised by the New Jersey Automobile Insurance Freedom of Choice and Cost Containment Act of 1984 (Cost Containment Act), L. 1983, c. 362, and again comprehensively amended by the Automobile Insurance Cost Reduction Act of 1998 (AICRA), L.. 1998, c. 21. N.J.S.A. 39:6A-3 requires every owner of a motor vehicle registered or principally garaged in this state to maintain automobile liability insurance. N.J.S.A. 39:6A-4 requires every automobile liability policy to include coverage for personal injury protection (PIP), including medical expenses, income continuation benefits, essential services benefits, survivor benefits, and funeral expenses. N.J.S.A. 39:6A- 12 makes clear that these economic benefits, if collectible by the insured from his own insurer, whether or not actually collected, are not also recoverable from the tortfeasor. See generally Roig v. Kelsey, 135 N.J. 500 (1994). Moreover, if a person is required to but does not have automobile insurance and hence has no PIP coverage to resort to, he has been held foreclosed from seeking recovery from the tortfeasor of those economic damages that would have been available under PIP coverage if he had had it. Monroe v. City of Paterson, 318 N.J. Super. 505 (App. Div. 1999).
With respect to recovery of non-economic damages from the tortfeasor by any victim of an automobile accident, insured or not, the scheme of the No Fault Act, N.J.S.A. 39:6A-8, as originally adopted, was simply the imposition of a $200 medical-expense limit on claims based on soft-tissue injuries. The monetary threshold *fn2 was replaced in 1988, L. 1988, c. 119, ' 6, by the provision requiring the insurer to offer the insured two options, the so-called verbal threshold or the so-called tort option. The verbal threshold, for which a smaller premium was charged, limited actions against the tortfeasor to those cases involving serious injuries as defined by the nine categories of injury therein described. See generally Oswin v. Shaw, 129 N.J. 290, 295-297 (1992). And see Craig & Pomeroy, New Jersey Auto Insurance Law, Chapter 15 (Gann 2002). We need not address the fundamental change made by AICRA in N.J.S.A. 39:6A-8, namely, the requirement of a medical certificate of defined injury.
The scope of the verbal threshold generated controversy respecting those, other than insureds opting for it, who were subject to its tort-suit limitation. See Craig & Pomeroy, supra, ' 15:3-2. The class of such persons that concerns us is that of the uninsured driver, a class directly addressed by the Legislature. N.J.S.A. 39:6A-4.5, in its original version, provided that:
Any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits coverage mandated by section 4 of P.L. 1972, c. 70 (C. 39:6A-4) shall: a) For the purposes of filing an action for the recovery of non-economic loss, as defined in section 2 of P.L. 1972, c. 70 (C. 39:6A-2), be subject to the tort option specified in subsection a. of section 8 of P.L. 1972, c. 70 (C-39:6A-8). Consequently, the situation of an uninsured injured driver was simply that he could not recover from the tortfeasor those economic damages that would have been available to him under PIP coverage. He could, however, sue the tortfeasor for non-economic damages provided his injury was sufficiently serious to meet the verbal threshold.
We now address the 1997 amendment of N.J.S.A. 39:6A-4.5. That amendment effected the dramatic change of precluding suit by an uninsured injured driver against the tortfeasor for any element of damage. *fn3 Paragraph a of that amendment provided that:
Any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits coverage mandated by section 4 of P.L. 1972, c. 70 (C 399-6A-4) shall have no cause of action for recovery of economic or non-economic loss sustained as a result of an accident while operating an uninsured automobile.
That provision was readopted by AICRA, which added to the failure to maintain medical expense benefits, a failure to maintain the insurance mandated by N.J.S.A. 39:6A-3.1. AICRA also added paragraphs b and c, precluding, respectively, a cause of action by a person driving while intoxicated and a cause ...