Muschette v. the Gateway Insurance Co.

388 A.2d 964, 76 N.J. 560, 1978 N.J. LEXIS 196

• Court: Supreme Court of New Jersey
• Decided: June 5, 1978
• Status: Published

Opinions

Per Curiam.

The Appellate Division affirmed a judgment of the Superior Court, Law Division, awarding plaintiff certain “survivor benefits” pursuant to section N. J. S. A. 39:6A-10 of the Automobile Reparation Reform (“no fault”) Act, N. J. S. A. 39 :6A-1 et seq., together with 10% interest, but without counsel fee. We granted certification on defendant’s petition challenging the substantive determination of the Appellate Division and the allowance of 10% interest on the judgment, 75 N. J. 27 (1977), but we denied plaintiff’s cross-petition complaining of the dis-allowance of counsel fee.

We affirm essentially on the opinion of the Appellate Division, but subject to the added comments which follow. See also General Accident Group v. Shimp, 147 N. J. Super. 404, 411 (Law Div. 1977).

Defendant has never flatly contended that the purchase by plaintiff of Option 5 of the Commissioner’s regulation concerning “additional personal injury protection” did not entitle plaintiff, as survivor of the decedent wife (also an additional named assured), to a potential recovery of the maximum benefits provided for under the Option 5 table both for income continuation benefits and essential service benefits. Its only argument in that regard has been that the plaintiff must “prove” his “actual” income continuation and essential service losses beyond the date of the death of the income producer (or essential service provider), and in excess of the basic máximums for those benefits of $5200 and $4380, respectively, up to the potential respective máximums under Option 5 of $36,400 and $10,220.¹ However, as pertinently pointed out by tbe Appellate Division, “in case of death it is difficult or impossible to predict the amount ¡of income and services which are lost to the surviving spouse or children or decedent’s .estate.” 149 N. J. Super. at 94. Defendant fails to provide an explanation or illustration of how, under its rationale of Section 10, a survivor would ever be able to “prove” his loss in respect of either income continuation or essential services, even where the decedent was at the time of death an income producer or a provider of essential services or both.

In effect, therefore, defendant’s argument entails the consequence that the “suitable additional first-party coverage for * * * survivor benefits * * *” (emphasis added) required under Section 10 to be made available by insurers to policyholders is illusory, as surviving insureds would never be entitled to recover more than the basic benefits provided for in N. J. S. A. 39:6A-4. We agree with the Appellate Division that this cannot have been the legislative intent, fairly reading Sections 4 and 10 together.

Fext we consider defendant’s contention, raised for the first time at the oral argument before this Court, that if plaintiff is to be awarded maximum scheduled survivor benefits of $36,400 and $10,220 under Option 5, he should not also be allowed the $10,000 death benefit also provided for under the Commissioner’s regulation (where death occurs within 90 days from the date of accident). The argument is that under the Appellate Division interpretation of Section 10 the additional survivor benefits for income continuation and essential services losses become, in effect, a death benefit or a form of life insurance. Since the $10,000 death benefit was intended to provide that kind of benefit, it becomes an unwarranted duplicate of the kind of benefit the Appellate Division has adjudicated in relation to Section 10.

We cannot accept the contention. The provision for the $10,000 death benefit in the Commissioner’s regulation is absolute and unconditional. Moreover, it was included in the insurance policy purchased by the insureds. They received a certificate of insurance expressly alluding to inclusion of Option 5 benefits which concededly included the death benefit. In addition, as noted, the death benefit is payable only if, as here, decedent died within 90 days of the accident. It is thus not true, that the death benefit is the same kind of benefit as the additional survivor benefits for income continuation and essential services loss.

We note, finally, that defendant has not argued that insureds are not entitled to survivor benefits in a lump sum but only in weekly installments. This may be because by the time judgment was entered in the trial court the two year period for payment of additional survivor benefits under Option 5 had elapsed. It is clear that income continuation and essential services benefits are payable weekly while the injured person is alive. N. J. S. A. 39:6A-4 b. and c. The point not having been argued, and the question being debatable, we need not and do not decide whether survivor benefits, either basic (Section 4d.) or additional (Section 10) are to be paid weekly or in a lump sum.

Judgment affirmed.

1 The departmental regulation for additional personal injury protection sets forth an “Appendix A” containing a schedule of the benefits. The explanatory note states that “only five weekly indemnity schedules are shown, with a two-year benefit duration.” Appendix A is as follows:

APPENDIX A

ADDITIONAL PERSONAL INJURY PROTECTION

Maximum Additional Weekly Loss of Income Benefit

During Period of Basic Benefits Payments (a)

After Period of Basic Benefits Payments (b)

Total Maximum Income Benefits

Maximum Essential During Basic Payments

Additional Services After Basic Payments

Total Max. E, Serv.

Death Benefits (c)

1. $0 $100 $5,200 $0 $12 $4,380 $10,000

2. 25 125 7,800 8 20 10,220 10,000

3. 75 175 13,000 8 20 10,220 10,000

4. 150 250 20,800 8 20 10,220 10,000

5. 300 400 36,400 8 20 10,220 10,000

Although plaintiff has never claimed more than a maximum of $36,400 for loss of income benefits or a maximum of $10,220 for essential service benefits, it would appear to us that Appendix A can logically he construed to afford a qualified claimant under Option 5 those amounts as “additional” benefits on top of the basic benefit máximums allowed by Section 4 of the act, i. e. $5200 for income benefits and $4380 for essential service benefits, or total máximums of $41,600 and $14,600 respectively. See General Accident Group v. Shimp, supra, 147 N. J. Super. at 406, 411.

We do not here resolve the matter definitively as plaintiff has never made the point and has not cross-appealed from the judgment in that regard. Nor has defendant been placed on notice that this issue might be raised. We reserve it for a ease which will present the question. Nevertheless, and without prejudice, to any- objection which defendant may wish to address thereto, plaintiff may, pursuant to R. 4:50-1, seek appropriate relief from the trial court as to the amount due. on the policy.