FINEGAN v. DICKENSON et al
ORDER granting 7 Motion to Apply the Verbal Threshold Pursuant to the Deemer Statute. Signed by Magistrate Judge Joel Schneider on 8/10/17. (dd, )
[Doc. No. 7]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ANNE M. FINEGAN,
Civil No. 16-9516 (JS)
SUSAN M. DICKENSON, et al.,
This matter is before the Court on the “Motion to Apply the
defendant Susan M. Dickenson. [Doc. No. 7]. The Court received
plaintiff’s opposition [Doc. Nos. 11, 12] and Dickenson’s reply
[Doc. No. 16]. The Court exercises its discretion not to hold
oral argument. Fed. R. Civ. P. 78; L. Civ. R. 78.1. For the
reasons to be discussed, Dickenson’s motion is granted.
On August 6, 2016, plaintiff (Pennsylvania resident) was a
accident in New Jersey driven by defendant Susan M. Dickenson.
insured by Chubb (New Jersey authorized insurer). Plaintiff is a
named driver on her parents’ insurance policy from Cincinnati
(New Jersey authorized insurer) with limited tort option under
PA law. Defendant is a New Jersey resident insured by a New
Plaintiff alleges that defendant was distracted by the use
center line, resulting in a head-on collision with the Connor
vehicle. Following the accident, Chubb (Connor’s insurer) denied
PIP coverage to plaintiff stating: “Under an automobile policy
issued in the State of Pennsylvania, Priority of Coverage is the
injured person’s own automobile insurance policy, a household
exhausting her First Party Benefits under the Cincinnati policy.
Ex. G to Pl.’s Opp’n [Doc. No. 11-3].
Defendant filed her answer and the present motion on February
intervene filed by Chubb and Cincinnati on April 7, 2017. [Doc.
No. 18]. Pursuant to 28 U.S.C. § 636(c), the parties consented
to the jurisdiction of this Court to hear the case. [Doc. No.
addresses the situation when non-resident motorists are involved
in accidents in New Jersey. The statute requires that if a nonresident’s insurer is authorized to do business in New Jersey,
the insurer must provide personal insurance protection (“PIP”)
benefits to the non-resident. New Jersey’s automobile insurance
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 specific categories.” 1 Staub v. United States,
C.A. No. 08-2061(JBS/KMW), 2010 WL 743926, at *2 (D.N.J. Mar. 3,
2010). The second type of coverage (Section 39:6A-8(b)), allows
for unlimited recovery for non-economic injuries in exchange for
higher premiums. Id. As noted, the “Deemer” Statute requires New
Jersey authorized insurers (licensed in New Jersey) to provide
non-resident insureds, among other things, PIP coverage. Id. at
threshold provision of N.J.S.A. 39:6A-8(a) is deemed to apply.
Nortesano v. Torres-Romero, 2006 WL 3475201 (N.J. Super. App.
The statute provides limited exception where the “person
sustained a bodily injury which results in death; dismemberment;
significant disfigurement or significant scarring; displaced
fractures; loss of a fetus; or a permanent injury within a
reasonable degree of medical probability.” N.J.S.A. 39:6A-8(a).
Div. Dec. 4, 2006); Dyszel v. Marks, 6 F.3d 116, 120 (3d Cir.
1993). The parties dispute whether the verbal threshold applies
In determining whether the verbal threshold applies to nonresident drivers, New Jersey courts have created a two-prong
test. Staub, at *3. The first prong requires an examination of
“automobile” and is entitled to receive no-fault PIP benefits
under section 39:6A-4. The second prong focuses on whether the
plaintiff is a person subject to the verbal threshold statute
and is required to maintain PIP coverage, or has a right to
Beaugard v. Johnson, 281 N.J. Super. 162, 167 (App. Div. 1995)).
In the present matter the first part of the two-prong test is
easily satisfied. Defendant is the owner/operator of her car and
is entitled to receive PIP benefits as a New Jersey resident.
characteristics satisfy the second prong.
Plaintiff is Subject to the Verbal Threshold by
Operation of Law
“Deemer” Statute by being used in New Jersey and insured by a
(“Defendant argues and Plaintiff agrees that Deemer does apply
to the Connor vehicle.”). Plaintiff argues, however, that the
Deemer statute does not apply to her. Defendant disagrees. The
Court sides with defendant. Def.’s Reply at 1 [Doc. No. 16].
Pursuant to N.J.S.A. 39:6A-8(a), plaintiff is subject to the
verbal threshold because she is entitled to receive PIP benefits
under N.J.S.A. 39:6A-4 by operation of law. The relevant portion
operator or occupant of an automobile to which [PIP coverage,
Section 39:6A-4] . . . regardless of fault, applies, and every
noneconomic loss to a person who . . . is a person who has a
right to receive benefits under [PIP coverage, Section 39:6A-4].
The decision in Koff v. Carrubba, 290 N.J. Super. 544, 547 (App.
Div. 1996) is instructive:
A person who is neither a named insured under a New
Jersey automobile liability policy nor a family member
residing with such a named insured is entitled to
receive PIP benefits only for an injury . . . which he
or she has suffered while occupying, entering into,
alighting from or using a named insured’s automobile
with the named insured’s permission . . . .
Id. at 185.
As noted, the parties concede that the Connor vehicle
plaintiff’s status as a passenger or occupant in the Connor
vehicle demonstrates that she was “occupying . . . a named
insured’s automobile with the named insured’s permission.”
vehicle, plaintiff is deemed to have the right to receive
Statute and N.J.S.A. 39:6A-4. Thus, plaintiff’s claim for
non-economic damages is subject to the verbal threshold.
This is consistent with the holding in Beaugard, 281 N.J.
Super. at 171, which held: “we are persuaded that in order
to justify depriving a claimant of a common-law cause of
action for negligence, . . . , a claimant must also be
eligible to receive PIP benefits.”
2. In the Alternative, Plaintiff is Subject to the
Verbal Threshold through the Cincinnati Policy
Additionally, the Appellate Division held in Koff that:
A person has the right to receive PIP benefits
pursuant to N.J.S.A. 39:6A-4 if (1) he or she is the
named insured under a policy providing PIP benefits,
or is a family member residing with such a named
insured, and (2) has suffered an injury as the result
of an accident which occurred . . . while he or she
was occupying, entering or leaving any automobile . .
Koff, 290 N.J. Super. at 546-47. For the purpose of N.J.S.A.
39:6A-4, plaintiff is considered an immediate family member of
Accordingly, plaintiff is entitled to PIP benefits because: (1)
she was a family member residing with a named insured; and (2)
plaintiff is subject to the verbal threshold.
The weakness in plaintiff’s argument is that she does not
address the interplay between N.J.S.A. 17:28-1.4, 39:6A-4 and
39:6A-8(a). In fact, plaintiff does not even discuss N.J.S.A.
39:6A-4 and N.J.S.A. 6A-8(a). Plaintiff is mistaken when she
only focuses on N.J.S.A. 17:28-14 while ignoring the limited
tort language in N.J.S.A. 39:6A-8(a). Since PIP coverage applies
occupying the vehicle, defendant is exempted from tort liability
to plaintiff. N.J.S.A. 39:6A-8(a).
For the reasons discussed above, defendants’ motion will be
The fact that plaintiff is entitled to receive PIP benefits
under N.J.S.A. 39:6A-4 is axiomatic since Cincinnati paid
plaintiff PIP benefits. The Court assumes plaintiff resided with
her parents (named insured) or else Cincinnati may not have paid
her PIP benefits. Plaintiff’s Exhibits (A, E and F) also
demonstrate plaintiff lived at the same address as her parents.
O R D E R
ORDERED this 10th day of August, 2017, that defendant’s motion is
GRANTED and it is the finding of this Court that plaintiff is
subject to the verbal threshold in the Deemer Statute. 3
United States Magistrate Judge
It is not insignificant that plaintiff elected the limited tort
option on her insurance policy. See Chavez v. Proformance Ins.
Co., 2008 WL 3412223, at *3 (N.J. Super. App. Div. Aug. 14,
2008)(“We agree with the motion judge that the intent of the
deemer statute is not to permit an insured to recover greater
benefits than that which the insured has purchased.”) It would
be incongruous to hold that plaintiff is entitled to more
benefits than her named insured parents because she was only
listed as a driver on Cincinnati’s policy rather than a named
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