LIBERTY MUTUAL INSURANCE COMPANY, a corporation, and EUGENE JERINSKY, Plaintiffs-Appellants,
PENSKE TRUCK LEASING, CO., a company, corporation and/or other business entity, Defendant, and CEVA FREIGHT, LLC, a company, corporation and/or other business entity, and ALBERT KIKA, Defendants-Respondents.
Submitted March 12, 2019
appeal from Superior Court of New Jersey, Law Division,
Monmouth County, Docket No. L-3377-17.
& Di Stefano, PC, attorneys for appellants (Robert P.
Clark, on the briefs).
O'Neill O'Brien Doherty & Kelly PC, attorneys for
respondents (Michael J. Notartomas, on the brief).
Judges Yannotti, Rothstadt and Gilson.
9.1 of the New Jersey Automobile Reparation Reform Act (the
No-Fault Act), N.J.S.A. 39:6A-1 to -35, provides insurers,
which have paid personal injury protection (PIP) benefits to
their insured, with the statutory right to seek reimbursement
against certain tortfeasors. N.J.S.A. 39:6A-9.1. If the
tortfeasor is insured, the determination whether the insurer
that paid the PIP benefits is entitled to recover those
payments and the amount of the recovery is by agreement of
the parties, and, if they are unable to agree, by
appeal, the non-PIP insurer disputes whether its insured was
a tortfeasor. Thus, the question presented is whether that
dispute must be arbitrated under Section 9.1 of the No-Fault
Act or resolved in a court proceeding. We hold that the issue
of whether a party is a tortfeasor is to be resolved at
arbitration when that issue involves factual questions as to
the fault or negligence of the insured.
on this appeal we reverse the Law Division order dated June
4, 2018, which denied the motion of plaintiff Liberty Mutual
Insurance Company (Liberty or plaintiff) to compel defendant
CEVA Freight, LLC (CEVA), a self-insured company, to
arbitrate Liberty's demand for reimbursement of PIP
benefits. We also reverse a July 20, 2018 order denying
Liberty's motion for reconsideration. We remand with the
direction that the Law Division enter an order compelling
CEVA and Liberty to arbitrate both whether Liberty is
entitled to the reimbursement and the amount of the
reimbursement. Thus, the arbitrator will determine whether
the driver of the truck, which was owned and self-insured by
CEVA, was a tortfeasor.
basic facts concerning the underlying automobile accident are
not in dispute. At approximately 4:45 a.m. on October 7,
2016, a tractor-trailer truck driven by Albert Kika and a
pickup truck driven by Eugene Jerinsky were involved in a
collision. Kika was attempting to back the truck he was
driving into a car dealership located off the southbound
lanes of Route 9 in Freehold. While backing into the entrance
to the dealership, Kika's truck blocked the southbound
lanes of Route 9. As Kika was maneuvering his truck into the
driveway, Jerinsky was driving his pickup truck in the right
southbound lane of Route 9 and his pickup truck struck the
trailer of Kika's truck.
police accident report stated that Kika "failed to yield
[the] right-of-way [to] traffic" while attempting to
back his tractor-trailer into the dealership driveway. A
witness gave a statement and reported that he was driving his
vehicle in the left southbound lane, saw the tractor-trailer
blocking the roadway, and was able to stop. The witness then
saw the pickup truck hit the trailer. The police report also
stated that there was visible damage to the side of the
trailer and the front end of the pickup truck.
had automobile liability insurance provided by Liberty. Kika
was employed by CEVA, and CEVA owned and self-insured the
truck driven by Kika. CEVA does not maintain and is not
required to maintain PIP coverage because the truck was a
commercial vehicle. See Empire Fire & Marine Ins. Co.
v. GSA Ins. Co., 354 N.J.Super. 415, 417 (App. Div.
2002) ("Commercial vehicles are not within the
definition of 'automobile' as used in N.J.S.A.
39:6A-4 and, therefore, are not statutorily required to
maintain PIP coverage."). Following the accident,
Jerinsky received medical treatment and applied to Liberty
for PIP benefits. Liberty opened a PIP claims file and began
paying Jerinsky's medical providers. Jerinsky also
applied for automobile property damage benefits. Liberty paid
both types of benefits on behalf of Jerinsky.
August 2017, Liberty requested reimbursement from CEVA for
the PIP benefits it had paid on behalf of Jerinsky. Liberty
also informed CEVA that if it would not agree to provide
reimbursement, Liberty demanded arbitration of its right to
reimbursement of the PIP benefits. CEVA, through its
third-party administrator, denied Liberty's ...