The opinion of the court was delivered by: Simandle, District Judge
This accident arises out of an automobile accident in New Jersey, in which Plaintiff David Staub's vehicle was struck in the rear by a federal government-owned vehicle driven by a recruiter for the United States Army. The matter is presently before the Court on two cross-motions for summary judgment [Docket Items 14 and 16] that require the Court to determine whether the United States is entitled to the protection of New Jersey's "verbal threshold"*fn1 in N.J. Stat. Ann. § 39:6A-8(a), which bars tort liability for non-economic loss except in a few limited circumstances. In addition, the Court must address Plaintiff's constitutional challenges to New Jersey's "deemer" statute in N.J. Stat. Ann. § 17:28-1.4, which deems out-of-state motorists who choose to use insurance companies licensed in New Jersey to have selected New Jersey's tort threshold under Section 39:6A-8(a). For the reasons discussed below, the Court finds that New Jersey's verbal threshold applies to the United States, that New Jersey's deemer statute is valid under both the Commerce Clause and the Privileges and Immunities Clause, and therefore Plaintiff's non-economic claims must be dismissed.
On the afternoon of October 31, 2006, Sergeant Christopher White, a recruiter for the United States Army who was driving a government-owned automobile in Egg Harbor Township, New Jersey, struck Plaintiff's automobile in the rear. Sgt. White was on his way to an Army applicant's home and so was within the scope of his employment at the time. Plaintiff suffered some injuries as a consequence of the accident, but he concedes that none of those injuries meet the exceptions to New Jersey's verbal threshold.*fn2
(Pl. Response to Def. Statement of Fact ¶ 63.) At the time of the accident, Plaintiff was a licensed driver in the State of Maryland and his car was registered in Maryland. (Pascal Declaration, Exh. A (Police Report) & Exh. F (Insurance Policy).) Plaintiff's insurance company was Esurance and Plaintiff maintained a Maryland policy. (Id., Exh. F.) It is undisputed that Esurance is authorized to do business in New Jersey. See www.state.nj.us/dobi/division_consumers/insurance/ autoinscontacts.htm. The United States of America is self-insured, but provides federal employees no-fault benefits for work-related injuries under the Federal Employees Compensation Act ("FECA"), 5 U.S.C. §§ 8101-8152.
Plaintiff brought suit against the United States of America on April 23, 2008. On July 10, 2009, Plaintiff filed a motion for partial summary judgment, asking the Court to find New Jersey's verbal threshold inapplicable. On July 29, 2009, Defendant filed a cross-motion for partial summary judgment, asking the Court to apply New Jersey's verbal threshold and to dismiss Plaintiff's claims based on non-economic injuries (pain and suffering).
A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted). In these motions for partial summary judgment on the applicability of New Jersey's verbal threshold, none of the material facts -- Plaintiff's place of residency and insurance, the nature of Plaintiff's injuries, the nature of the United States' insurance -- is in dispute.
B. New Jersey's Verbal Threshold and the Federal Tort Claims Act
The central question in this case is the relationship between the Federal Tort Claims Act ("FTCA") and New Jersey's motor vehicle tort liability scheme. Plaintiff makes no reference to the FTCA in his arguments, and asks the Court to apply the literal terms of Section 39:6A-8(a) and find that the United States is unprotected by the tort threshold. Defendant argues that under the FTCA it must be considered in "like circumstances" to a private individual complying with New Jersey's insurance mandates and so entitled to the protection of New Jersey's verbal threshold. For the reasons the Court will discuss below, the Court agrees with Defendant and finds that the United States is entitled to the limitations of non-economic damages under the verbal threshold.
Plaintiff brought suit under the FTCA, which "subjects the United States to tort liability for negligence." Reo v. U.S. Postal Service, 98 F.3d 73, 75 (3d Cir. 1996). Under the FTCA, the United States is only liable "in the same manner and to the same extent as a private individual under like circumstances."
28 U.S.C. § 2674; see 28 U.S.C. § 1346(b) (providing exclusive jurisdiction to federal district courts over negligence claims against federal employees "acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.") Consequently, the Court must look to the law of New Jersey, as the place of the accident, to determine what law governs a private individual under like circumstances as the United States. See Roe, 98 F.3d at 75.
New Jersey's automobile insurance scheme provides two options for those purchasing insurance. The first type of coverage, outlined in Section 39:6A-8(a), is known as "verbal threshold" coverage, and precludes tort recovery for non-economic injuries except those that fall into six categories*fn3 (which Plaintiff concedes he did not suffer). The second type of coverage, outlined in 39:6A-8(b), allows for unlimited recovery for non-economic injuries in exchange for higher premiums. See Zabilowicz v. Kelsey, 984 A.2d 872, 873 (N.J. 2009).
The relevant language of Section 39:6A-8(a), the verbal threshold ...