KATHLEEN LEGGETTE VS. GOVERNMENT EMPLOYEES INSURANCECOMPANY (GEICO)(L-1585-14, MERCER COUNTY AND STATEWIDE)

161 A.3d 769, 450 N.J. Super. 261

• Court: New Jersey Superior Court Appellate Division
• Decided: May 30, 2017
• Docket: A-1911-15T3
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1911-15T3

KATHLEEN LEGGETTE,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

May 30, 2017 v. APPELLATE DIVISION GOVERNMENT EMPLOYEES INSURANCE COMPANY ("GEICO"),

Defendant-Respondent,

and

DERICK HARRIS,

Defendant. _______________________________

Argued March 23, 2017 – Decided May 30, 2017

Before Judges Lihotz, O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L- 1585-14.

Mitchell J. Makowicz, Jr., argued the cause for appellant (Blume, Forte, Fried, Zerres & Molinari, P.C., attorneys; Mr. Makowicz, on the brief).

Elizabeth C. Chierici argued the cause for respondent (Chierici, Chierici & Smith, P.C., attorneys; Ms. Chierici, on the brief). The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

Plaintiff Kathleen Leggette, a Virginia resident, was

struck by a New Jersey licensed driver as she walked across a

street in Princeton. Plaintiff appeals from the December 4,

2015 summary judgment dismissal of her declaratory judgment

complaint against her insurer, defendant Government Employees

Insurance Company (GEICO). In her complaint, plaintiff sought

personal injury protection (PIP) benefits, pursuant to N.J.S.A.

17:28-1.4, commonly known as the "Deemer Statute," which

generally requires an insurer, authorized to do business in New

Jersey, must provide PIP coverage for policies sold outside New

Jersey, whenever the insured automobile is "used or operated" in

this state.1 Plaintiff maintained her Virginia policy was deemed

to provide standard PIP coverage while her vehicle was in this

state. The trial judge concluded the Deemer Statute was

inapplicable to the circumstances presented. We affirm.

For purposes of the summary judgment motion, the parties

did not dispute any material facts. Plaintiff drove her

1 "N.J.S.A. 17:28-1.4 apparently acquired its name as the Deemer Statute because it 'deems' New Jersey insurance coverage and tort limitations to apply to out-of-state policies." Zabilowicz v. Kelsey, 200 N.J. 507, 510 n.2 (2009); see also Lusby v. Hitchner, 273 N.J. Super. 578, 583-84 (App. Div. 1994) ("[T]he statute eponymously 'deems' that the policy includes the required coverage.").

2 A-1911-15T3 Virginia registered 2005 Toyota Sequoia, insured by GEICO, to

Princeton University to visit her daughter, a student.

Plaintiff parked her vehicle in a Princeton University parking

lot and began walking toward her daughter’s dormitory. While in

a crosswalk on Edwards Place, plaintiff was struck by an

automobile. Consequently, plaintiff suffered injuries and

incurred approximately $113,825.47 in medical bills.

Plaintiff filed a complaint and thereafter settled her

claims against the driver of the automobile. She initiated this

declaratory judgment action against defendant GEICO for PIP

coverage to satisfy resultant medical expenses. Plaintiff

alleged defendant, which is authorized to conduct business in

New Jersey, was legally obligated, by the Deemer Statute, to

provide minimum standard automobile insurance policy PIP

benefits, covering injuries suffered when her out-of-state-

insured vehicle was used in New Jersey. Defendant refuted this

interpretation, maintaining plaintiff, as a pedestrian, was not

using or operating her vehicle at the time of the accident, so

coverage required by the Deemer Statute was not triggered.

The parties filed competing motions for summary judgment.

The trial judge accepted plaintiff's position, concluding the

comprehensive insurance scheme provided PIP coverage to

plaintiff, despite being a pedestrian. The judge denied

3 A-1911-15T3 defendant's motion for summary judgment and granted plaintiff's

motion in an October 23, 2015 order.

Defendant moved to vacate this order and sought dismissal

of the complaint. Following oral argument, the Law Division

judge reviewed the legislative history accompanying the adoption

of the Deemer Statute and reconsidered his prior order. The

judge vacated the October 23, 2015 order and concluded a party

must be using or operating his or her vehicle at the time of the

accident to trigger Deemer coverage. Plaintiff's appeal from

the December 4, 2015 order followed.

The narrow legal issue on appeal requires consideration of

the Legislative intent in enacting N.J.S.A. 17:28-1.4. These

principles guide our review.

A matter of statutory interpretation is a legal issue

requiring our de novo review. See, e.g., Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); In re

Declaratory Judgment Actions Filed by Various Muns., 446 N.J.

Super. 259, 281 (App. Div. 2016), aff’d as modified on other

grounds, 227 N.J. 508 (2017). Accordingly, "we accord no

deference to the trial judge's interpretive conclusions." Brick

Twp. PBA Local 230 v. Twp. of Brick, 446 N.J. Super. 61, 65

(App. Div. 2016).

4 A-1911-15T3 Our paramount goal in interpreting a statute is to

ascertain the Legislature's intent, requiring we start with the

statutory language. See, e.g., Maeker v. Ross, 219 N.J. 565,

575 (2014) ("The goal of all statutory interpretation 'is to

give effect to the intent of the Legislature.'" (quoting

Aronberg v. Tolbert, 207 N.J. 587, 597 (2011))); DiProspero v.

Penn, 183 N.J. 477, 492 (2005) ("[G]enerally, the best indicator

of that intent is the statutory language."). When interpreting

a statute, we give words "their ordinary meaning and

significance." Tumpson v. Farina, 218 N.J. 450, 467 (2014)

(quoting DiProspero, supra, 183 N.J. at 492). Further, "we must

construe the statute sensibly and consistent[ly] with the

objectives that the Legislature sought to achieve." Nicholas v.

Mynster, 213 N.J. 463, 480 (2013). "We will not adopt an

interpretation of the statutory language that leads to an absurd

result or one that is distinctly at odds with the public-policy

objectives of a statutory scheme." State v. Morrison, 227 N.J.

295, 308 (2016) (citing Murray v. Plainfield Rescue Squad, 210

N.J. 581, 592 (2012)).

Enacted in 1985, the Deemer Statute "is part of this

State's no fault automobile insurance plan." Gov't Emps. Ins.

Co. v. Allstate Ins. Co., 358 N.J. Super. 555, 560 (App. Div.

2003). "The legislation was in response to a growing number of

5 A-1911-15T3 cases where New Jersey residents were injured in accidents

caused by out-of-state drivers whose insurance coverage was less

than New Jersey's statutory requirements" and the law was

intended "to reduce the demands on the Unsatisfied Claim and

Judgment Fund." Ibid. (quoting Craig and Pomeroy, N.J. Auto

Ins. Law, cmt. § 1:2-6 (2003)). The Deemer Statute provides, in

pertinent part:

Any insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State . . . shall include in each policy coverage to satisfy at least the liability insurance requirements of . . . personal injury protection benefits coverage pursuant to . . . [N.J.S.A. 39:6A-4] . . . whenever the automobile or motor vehicle insured under the policy is used or operated in this State. . . .

[N.J.S.A. 17:28-1.4.]

"In short, the Deemer Statute furnishes the covered out-of-state

driver with New Jersey's statutory no-fault PIP and other

benefits and, in exchange, deems that driver to have selected

the limitation-on-lawsuit option of N.J.S.A. 39:6A-8(a)."

Zabilowicz, supra, 200 N.J. at 514.

Plaintiff focuses on the statutory phrase "whenever the

automobile or motor vehicle insured under the policy is used or

operated in this State," maintaining defendant was required to

provide PIP coverage because her vehicle entered New Jersey.

6 A-1911-15T3 She contends "[p]recluding [her] from receiving PIP benefits

because she is an out-of-state resident would be contrary to the

plain language of the Deemer Statute and would be inconsistent

with well-established case law." Plaintiff argues the statute's

provisions extend to any vehicles "that enter into and travel

around New Jersey, irrespective of th[e] automobile's direct

involvement in the accident." Citing Indem. Ins. Co. v. Metro.

Cas. Ins. Co., 33 N.J. 507 (1960), plaintiff urges "[o]ne who

operates a car uses it, but one can use a car without operating

it." Id. at 513 (citation omitted). Accordingly, plaintiff

maintains the fact she was not in her vehicle at the time she

was injured is irrelevant.

Plaintiff also argues this interpretation aligns with

N.J.S.A. 39:6A-4's requirements, which mandate every standard

automobile insurance policy shall contain PIP benefits to the

named insured "who sustain[s] bodily injury as a result of an

accident while occupying, entering into, alighting from or using

an automobile," as well "as a pedestrian, caused by an

automobile . . . ."

Defendant confronts plaintiff's argument as an attempt to

circumvent the legislative purpose in adopting the Deemer

Statute, which defendant urges aimed to protect New Jersey

residents injured in automobile accidents from out-of-state

7 A-1911-15T3 operators with insufficient coverage. Citing the same statutory

phrase relied upon by plaintiff, defendant insists a nexus

between the out-of-state automobile and the accident is

necessary. Thus, "the automobile . . . insured under the out-

of-state policy must be operated or used at the time of the New

Jersey accident before the Deemer Statute is triggered."

Defendant asserts N.J.S.A. 39:6A-4's PIP requirements apply only

if the Deemer Statute is triggered.

Various cases have examined challenges to the applicability

of the Deemer Statute when an out-of-state driver is involved in

an automobile accident in New Jersey. See, e.g., Whitaker v.

DeVilla, 147 N.J. 341, 349-55 (1997) (reviewing constitutional

and other challenges to the Deemer Statute); Cooper Hosp. v.

Prudential Ins. Co., 378 N.J. Super. 510, 515 (App. Div. 2005)

("Generally speaking, the [D]eemer [S]tatute effectively

mandates that out-of-state policies within its ambit are

automatically construed as New Jersey policies when the covered

vehicle is involved in a New Jersey accident."); Gov't Emps.

Ins. Co., supra, 358 N.J. Super. at 561 (enacting the Deemer

Statute, the Legislature "sought to ensure that New Jersey-

authorized insurance companies provide to their out-of-state

insureds travelling in New Jersey the same protections required

of in-state insured vehicles") (citing Martin v. Home Ins. Co.,

8 A-1911-15T3 141 N.J. 279, 282 (1995))). These authorities state the Deemer

Statute "guarantees that out-of-state insureds driving in New

Jersey and insured by companies authorized to transact insurance

business in New Jersey have available up to $250,000 in personal

injury protection (PIP) benefits, see N.J.S.A. 39:6A-4,

irrespective of the comparable benefits mandated by the

insured's home state." Whitaker, supra, 147 N.J. at 348

(emphasis added). However, we have located no case mirroring

the facts at hand.

We frame the issue of first impression as whether an out-

of-state automobile policy is deemed by N.J.S.A. 17:28-1.4 to

provide PIP benefits when the named insured is injured by a New

Jersey driver while a pedestrian. We conclude the answer is no.

The parties' divergent views in construing the plain

meaning of the Deemer Statute expose an ambiguity. "[I]f a

statute's plain language is ambiguous or subject to multiple

interpretations, this [c]ourt 'may consider extrinsic evidence

including legislative history and committee reports.'" Parsons

ex rel. Parsons v. Mullica Bd. of Educ., 226 N.J. 297, 308

(2016) (quoting State v. Marquez, 202 N.J. 485, 500 (2010)); see

also Brick Twp. PBA Local 230, supra, 446 N.J. Super. at 65

("[W]hen the statutory language is ambiguous and yields more

than one plausible interpretation . . . we turn to extrinsic

9 A-1911-15T3 sources, such as legislative history." (citing DiProspero,

supra, 183 N.J. at 492-93)). "In the absence of specific

guidance, our task is to discern the intent of the Legislature

not only from the terms of the Act, but also from its structure,

history and purpose." Martin, supra, 141 N.J. at 285 (quoting

Fiore v. Consol. Freightways, 140 N.J. 452, 471 (1995)). "The

inquiry [into statutory meaning] in the ultimate analysis is [to

determine] the true intention of the law; and, to this end, the

particular words are to be made responsive to the essential

principle of the law." Id. at 290 (quoting Roig v. Kelsey, 135

N.J. 500, 516 (1994)).

We are not persuaded by plaintiff's argument that her

injuries, suffered while a pedestrian, are covered by the Deemer

Statute's specific reference to N.J.S.A. 39:6A-4, which provides

PIP benefits to pedestrians injured caused by a motor vehicle.

This provision only applies if the Deemer Statute is triggered,

which turns on the meaning of "whenever the automobile or motor

vehicle insured under the policy is used or operated in this

State."

Focusing on this language, we note courts have examined

"the statutory words 'occupying . . . or using' an automobile in

the context of eligibility for PIP benefits[,]" per N.J.S.A.

10 A-1911-15T3 39:6A-4. Negron v. Colonial Penn Ins., 358 N.J. Super. 59, 62

(App. Div. 2003) (alteration in original). This court stated:

The broad principle developed by case law has been summarized with disarming simplicity in Craig & Pomeroy, New Jersey Auto Insurance Law, § 6:2-3, pg. 119 (Gann 2003):

[I]t is not necessary that the injury be directly or proximately caused by the automobile or by its motion or operation, so long as there is a substantial nexus between the occupancy or use of the vehicle and the injury.

Cases considering the issue of substantial nexus in PIP matters were surveyed in Lindstrom v. Hanover Ins. Co., 138 N.J. 242, 247-53 (1994). More recent cases, like Ohio Cas[.] Gr[p.] v. Gray, 323 N.J. Super. 338 (App. Div. 1999); Svenson v. Nat['l] Consumer Ins. Co., 322 N.J. Super. 410, 413- 17 (App. Div. 1999); and Stevenson v. State Farm Indem[.] Co., 311 N.J. Super. 363, 372- 73 (App. Div. 1998), have addressed the issue with similar surveys.

[Ibid.]

In Negron, a passenger exited a vehicle to ask a bar patron

"who was pounding the hood" and blocking the car's path, to

move. Id. at 61. The passenger "was immediately assaulted and

knocked down by several people." Ibid. The driver then exited

the vehicle to aid the passenger; he too was seriously injured.

Ibid. The passenger-plaintiff argued "his actions were directly

linked to the use of the automobile in which he was traveling

11 A-1911-15T3 because he was acting to aid the driver of his car, to clear a

path of travel and to stop third parties from damaging the

vehicle." Id. at 62. We were not persuaded and affirmed the

trial judge's conclusion the passenger's actions to aid the

driver, although commendable, had a "purpose . . . not

sufficiently 'entwined with normal use' of a vehicle to bring

this case within the ambit of PIP coverage." Id. at 61.

In Vasil v. Zullo, 238 N.J. Super. 572 (App. Div. 1990), we

affirmed the denial of benefits to a passenger who exited the

vehicle blocked by another motorist during a "road rage"

incident. The other driver stabbed the passenger who, after

being injured, returned to the vehicle and died. Id. at 575.

We concluded the plaintiff could not "reasonably be said to have

been 'using' the [defendant's] vehicle simply because the

altercation with the occupants of the [other car] arose out of

the operation of the [defendant's] car or because the [other

car] was blocking the [defendant's] vehicle's path." Id. at

577.

Cases have held "[a] non-occupant of a vehicle may be found

to have been 'using' the vehicle in which he was riding or

driving while examining the damage sustained in an accident or

while pushing the vehicle from the roadway to the shoulder."

Ibid. (citing Clyburn v. Liberty Mut. Ins. Co., 214 N.J. Super.

12 A-1911-15T3 644, 648-49 (App. Div.), certif. denied, 107 N.J. 652 (1987));

see also Gray, supra, 323 N.J. Super. at 341 (finding continuing

use of vehicle by driver injured when leaving vehicle to remove

shopping carts blocking vehicle). However, when the break is

more than temporary, the vehicle becomes unrelated to events of

the accident.

Here, plaintiff parked her car, locked the doors, walked

away, exited the parking lot, and was crossing a street when she

was struck by a vehicle. At the time she sustained her

injuries, her use of her vehicle had ended. We are satisfied

plaintiff's interpretation of the phrase "whenever the

automobile . . . insured under the policy is used . . . in this

State" to include merely driving a vehicle into New Jersey is

overbroad. N.J.S.A. 17:28-1.4. We cannot reconcile the

Legislature's intent in enacting the Deemer Statute to cover a

pedestrian accident, which is not a consequence of plaintiff's

use of her automobile. Rather, we conclude coverage under the

Deemer Statute demands "substantial nexus" between the out-of-

state vehicle and the accident for which benefits are sought.

Negron, supra, 358 N.J. Super. at 62 (quoting Craig & Pomeroy,

New Jersey Auto Insurance Law, § 6:2-3, pg. 119 (Gann 2003)).

Here, the negligent act that caused plaintiff's injury was not

related to the use of her vehicle in New Jersey. The Deemer

13 A-1911-15T3 Statute is not applicable to extend PIP benefits to satisfy her

medical costs.

Affirmed.

14 A-1911-15T3