On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1059-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Wefing and Parker.
The Atlantic County Municipal Joint Insurance Fund (JIF), as subrogee of Peter Romanelli and the Township of Galloway, appeal from an order entered on January 2, 2008 granting summary judgment in favor of defendant Harry Green.
Peter Romanelli was a Galloway Township Police Officer injured in an automobile accident on May 19, 2004, while he was a passenger in a township-owned vehicle operated by Galloway Township Police Chief, Keith Spencer. Both Romanelli and the Chief were acting within the scope of their duties at the time of the accident. Defendant was the driver of the other vehicle involved in the accident. Romanelli received workers' compensation benefits paid through JIF in the amount of $9,295.97.
JIF, as Romanelli's subrogee, filed suit against defendant for reimbursement of the workers' compensation benefits paid to Romanelli. Defendant's insurance was subject to the verbal threshold. N.J.S.A. 39:6A-8(a).
Defendant moved for summary judgment, relying on our decision in Continental Ins. Co. v. McClelland, 288 N.J. Super. 185 (App. Div. 1996), in which we held that a workers' compensation carrier could not recover non-economic damages unless the verbal threshold criteria were met. Id. at 190. There, we said that if the plaintiff had "not had a work-related accident, he could have received medical payments and income continuation benefits under his [own] automobile insurance policy." Ibid. We further noted that the plaintiff "could not have recovered any medical payments from defendant" because he did not meet the verbal threshold criteria. Ibid. The trial court found Continental controlling and granted defendant's motion for summary judgment.
In this appeal, JIF argues that there are substantial differences between Continental and this case and that the trial court erred in (1) granting defendant's motion for summary judgment "since the economic damages which were sought by [JIF] were not subject to the bar of the verbal threshold;" (2) "since [JIF] as subrogee of Peter Romanelli and the Township of Galloway . . . is a municipal joint insurance fund whose recovery of medical and wage benefits by way of subrogation is not barred by the New Jersey Automobile Insurance Cost Reduction Act (AICRA)," N.J.S.A. 39:6A-1 to -35; and (3) the trial court erred in granting summary judgment on the claim for wage benefits.
JIF's principal argument is that Continental does not apply in this case because AICRA "only exempts tort liability for '[n]on-[e]conomic [l]oss'" and JIF is not making claims for non-economic loss. Rather, JIF is claiming "'[e]conomic [l]osses' namely, wage benefits and medical expenses."
JIF also argues that it is not an insurance company or an insurer under the laws of New Jersey. Rather, JIF maintains that it is a statutory entity funded with public monies to essentially self-insure the member municipalities for the purpose of saving substantial monies in insurance premiums. In this case, JIF paid medical providers directly for Romanelli's treatment. JIF argues that defendant's negligence renders him liable for reimbursing JIF for those payments. JIF further argues that
[w]hile the entire thrust of AICRA and its predecessors has been to insulate a tortfeasor from a claim for medical expenses and wage benefits that were to be covered by PIP, it was not contemplated by the legislature that this bar would require public funds to be expended when the provider of the Workers' Compensation Coverage is a Municipal Joint Insurance Fund. The legislature's intent and purpose in enacting AICRA was to reduce the exposure of the automobile insurance carriers for [t]hird-[p]arty [c]laims; however, it could not have been their intent or purpose to instead place the burden of bearing these expenses upon the public.
In rendering his decision on the record of January 2, 2008, Judge William Nugent addressed each of the issues raised by JIF and made a well-reasoned conclusion of law in granting defendant's motion for summary judgment. Relying on Continental, Judge Nugent held that "allowing workers' compensation carriers through the statutory subrogation provisions of N.J.S.A. 34:15-40 to bring claims that could not be maintained by the injured driver would significantly undercut the entire rationale of the automobile insurance system" under AICRA.
Judge Nugent further found that "there is no law . . . that suggests that because [JIF] is a taxpayer-funded statutory entity, that its subrogation rights are greater ...