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Delgiorno v. Moss

October 16, 2009

VIDA DELGIORNO, PLAINTIFF-RESPONDENT,
v.
EDDIE L. MOSS, J.B. HUNT TRANSPORT, INC., EXTRA LEASE CO., DEFENDANTS-APPELLANTS, AND RAYMOND DELGIORNO, DEFENDANT.
RAYMOND G. DELGIORNO, PLAINTIFF-RESPONDENT,
v.
EDDIE L. MOSS, J.B. HUNT TRANSPORT, INC., EXTRA LEASE CO., DEFENDANTS-APPELLANTS.
RUTGERS CASUALTY INSURANCE CO., A/S/O RAYMOND G. DELGIORNO, PLAINTIFF-RESPONDENT,
v.
EDDIE MOSS, J.B. HUNT TRANSPORT, INC., DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket Nos. L-2951-05, L-2981-05 and L-486-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: September 16, 2009

Before Judges Axelrad, Fisher and Sapp-Peterson.

Plaintiffs Raymond and Vida DelGiorno*fn1 filed personal injury complaints against defendants, Eddie L. Moss, J.B. Hunt Transport, Inc., and Extra Lease Co. (the Hunt defendants)*fn2 as the result of an October 2003 automobile accident. Rutgers Casualty Insurance Co., the DelGiornos' insurer, filed suit "a/s/o Raymond DelGiorno" against the Hunt defendants, seeking to be reimbursed for the personal injury protection (PIP) benefits it paid only on Raymond's behalf. Rutgers never brought a claim for PIP payments paid on behalf of Vida. All the complaints were consolidated.

On July l8, 2008, Vida's personal injury attorney supplemented her discovery responses, producing Rutgers' PIP ledger for the payments it made on Vida's behalf as a result of the accident, reflecting, among other items, that the first payment was made on December l7, 2003. Vida had produced no evidence of any out-of-pocket costs. She took the position that the claim for medical benefits in her complaint included the PIP payments Rutgers made on her behalf. She also claimed Rutgers had assigned its right to reimbursement to her, although the assignment was never produced.

A mediation produced a settlement of the underlying personal injury actions, requiring payment by the Hunt defendants to Vida for her bodily injuries and dismissal with prejudice of her and Raymond's lawsuits against them, but left unresolved Rutgers' claim for PIP benefits paid on Raymond's behalf that was the subject of the consolidated lawsuit. Based upon correspondence it appears Vida and Rutgers continued to take the position there was a viable claim for PIP benefits paid on her behalf. A release was executed by the parties, which is not contained in the appellate record.*fn3 By order of September 29, 2008, the court entered an order dismissing Vida's complaint without prejudice through settlement.

The Rutgers-Raymond PIP reimbursement case was scheduled for trial on December l5, 2008. Vida and Rutgers moved to have the PIP reimbursement claims for both DelGiornos submitted to arbitration pursuant to N.J.S.A. 39:6A-9.1. The Hunt defendants objected and cross-moved to preclude evidence of Vida's PIP payments and medical expenses. The Hunt defendants argued that under N.J.S.A. 39:6A-9.1, because Vida is not an insurer, she cannot unilaterally request and receive a directive that her lawsuit be arbitrated. Nor could she pursue any claim for medical expenses, as all of her medical bills were paid by Rutgers and pursuant to N.J.S.A. 39:6A-9.1, the insurer and not the insured maintains the right to recover PIP benefits.

Following argument on November 21, 2008, the court ordered both Raymond and Vida's PIP claims to arbitration under N.J.S.A. 39:6A-9.1, reasoning:

Rutgers paid PIP benefits on behalf of both of these parties. Rutgers seeks payment for these from commercial tortfeasors and that's exactly the type of case that's called for under 39:6A-9.1.

The court memorialized its decision in orders of the same date remanding "the claims for PIP reimbursement by Vida DelGiorno and Rutgers Casualty Insurance Company a/s/o Raymond G. DelGiorno" from Superior Court to arbitration pursuant to N.J.S.A. 39:6A-9.1, and declaring moot the Hunt defendants' motion to preclude the introduction of PIP payments and medical expenses as to Vida. The Hunt defendants appealed.*fn4 We reverse.

The statute regarding enforcement of PIP benefits unambiguously sets forth who may recover and against whom they may recover, stating in relevant part:

An insurer, health maintenance organization or governmental agency paying... personal injury protection benefits... shall, within two years of the filing of the claim, have the right to recover the amount of payments from any tortfeasor who was not, at the time of the accident, required to maintain personal injury protection or medical expense benefits coverage, other than for pedestrians, under the laws of this State, including personal injury protection coverage,... or although required did not maintain personal injury protection or medical expense benefits coverage at the time of the accident. In the case of an accident occurring in this State involving an insured tortfeasor, the determination as to whether an insurer, health maintenance organization or governmental agency is legally entitled to recover the amount of payments and the amount of recovery, including the costs of processing benefit claims and enforcing rights granted under this section, shall be made against the insurer of the tortfeasor, and shall be by agreement of the involved parties or, upon failing to agree, by arbitration. [N.J.S.A. 39:6A-9.1 (emphasis added).]

If a statute is clear on its face, there is no need to look beyond its plain meaning. New Jersey Auto. Full Ins. Underwriting Ass'n v. Liberty Mut. Ins. Co., 270 N.J. Super. 49, 52 (App. Div. l994). Our "sole function is to enforce the statute ...


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