On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3091-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lisa and Lihotz.
On May 19, 1994, defendant, Carolyn Trenkamp, was involved in an automobile accident while in the course of her employment. Defendant maintained an automobile insurance policy issued by plaintiff, USAA Casualty Insurance (USAA), which provided income continuation benefits of $700 per week for unlimited weeks.
Claiming she was totally disabled as a result of the accident, defendant brought an action against USAA seeking payment of the income continuation benefits. After completion of discovery in that action, the parties settled and USAA began paying defendant $700 per week in income continuation benefits.
Defendant also initiated a workers' compensation claim against her employer, which ultimately resulted in a determination that she was totally permanently disabled, resulting in an award of $460 per week, beginning February 1, 2000, in total permanent disability benefits.
USAA initiated this action. It contended it is entitled to a setoff of $460 per week against its $700 per week obligation to defendant for income continuation benefits under the collateral source rule, N.J.S.A. 39:6A-6, in the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. USAA therefore sought reimbursement from defendant for $460 per week since February 1, 2000, and a declaration that it was entitled to a weekly setoff in that amount in the future.
No facts were in dispute, and the parties filed cross-motions for summary judgment. The trial judge decided the issue on October 10, 2006. The judge issued a written decision concluding that USAA was not entitled to the setoff.
Accordingly, summary judgment was entered in favor of defendant and against USAA. This appeal by USAA followed.
During the pendency of the appeal, on April 25, 2007, in a case in which the facts were identical in all material respects to those in the case now before us, this court was confronted with the same issue. Portnoff v. N.J. Mfrs. Ins. Co., 392 N.J. Super. 377 (App. Div.), certif. denied, 192 N.J. 477 (2007). We reached a conclusion opposite that reached by the trial judge in this case. We held that the automobile insurance carrier was entitled to a setoff against its income continuation benefits obligation for workers' compensation total permanent disability benefits. Id. at 391.
Of course, the trial judge in this case did not have the benefit of our decision in Portnoff when deciding the summary judgment motions. In defending this appeal, defendant advances the same arguments that we rejected in Portnoff. Based upon our holding in Portnoff, the summary judgment orders in favor of defendant and against USAA must be reversed.