1 Civil Litigation Track Automobile Insurance Update 2012 Co-Sponsored by the Automobile Reparations Committee A review of the cases and statutes over the last year that deal with automobile insurance issues and trends. Speaker: Gerald H. Baker, Esq. Javerbaum Wurgaft PC Daniel Rosner, Esq. Rosner Law Offices
6 By Gerald H. Baker The State of New Jersey adopted the Automobile Insurance Reparation Reform Act (known as the No Fault Act) in The act provides that every standard automobile liability insurance policy shall contain personal injury protection (PIP) benefits, without regard to fault, including medical expenses up to $250,000; income continuation up to $5,200; essential services up to $4,380; death benefits up to $9,580; and funeral expenses up to $1,000. N.J.S.A. 39:6A-4. As initially enacted, the No Fault Act barred civil suits for soft-tissue injuries unless the claimant s medical expenses exceeded a monetary threshold (originally $200 and later increased to $1,500). The act was amended in 1988 to replace the monetary threshold with a verbal threshold : a description in words of the type of injury that would permit an accident victim to recover damages for noneconomic loss (defined as pain and suffering ). In 1998, the Automobile Insurance Cost Reduction Act (AICRA) replaced the old verbal threshold with a new verbal threshold (called the limitation on lawsuit option ). The type of injuries that meet the old and new verbal threshold are discussed in the article in this supplement entitled History of the Verbal Threshold. Since 1988, there have been over 120 published opinions that discuss some aspect of the verbal threshold. Each of these cases is listed by subject in the Verbal Threshold Citator included in this supplement. Each year since 1992, I have prepared a special Automobile Injury supplement to the New Jersey Law Journal which is entitled A Look at No Fault. The supplement reviews all of the published verbal threshold cases from the prior year. This year, I will review three new Supreme Court cases that were published
7 in 2011 and deal with the loss limitation provisions of the No Fault Act. In Perrelli, the Court held that the owner of an uninsured automobile who was injured while a passenger in her own vehicle was barred from bringing suit for economic or noneconomic loss. Likewise, in Aronberg, the Court found that the mother of an intoxicated driver was not entitled to bring a wrongful death claim for pecuniary loss. However, in Voss, the Court ruled that an intoxicated driver was permitted to bring a dram shop claim against the tavern that served him alcohol while he was visibly intoxicated. Loss Limitations The New Jersey No Fault Act requires the owner of every automobile registered in this state to maintain liability insurance coverage, personal injury protection (PIP) benefits and uninsured motorist coverage. One of the purposes of the act (the reparation objective ) is to ensure that there are financially responsible persons available to meet the claims of persons wrongfully injured in automobile accidents. Selected Risks v. Zullo, 48 N.J. 362 (1966). Nonetheless, the legal rights of accident victims to recover damages for economic and noneconomic loss are not unlimited. The act was amended in 1985 to limit the rights of three classes of acci Dram Shop Claims: Loss Limitations Do Not Apply But loss limitations do apply to owner-passenger of uninsured vehicle and to wrongful death actions New Jersey Law Journal VOL NO 7 MONDAY, FEBRUARY 13, 2012 ESTABLISHED 1878 & Automobile Injury 2012 NJAJ Pines Manor Seminar Guide A Look at No Fault in 2011
8 Reprinted with permission from the FEBRUARY 13, 2012 edition of New Jersey Law Journal ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
9 dent victims, N.J.S.A. 39:6A-4.5: Any person who owns an uninsured 1. automobile who is injured while operating an uninsured automobile ; Any person who is convicted or pleads 2. guilty to driving while intoxicated who is injured as a result of the accident ; and Any person who acts with specific 3. intent to cause injury to himself or others who is injured as a result of an accident arising from such conduct. As initially enacted, these statutory provisions (called loss limitations ) provided that any person within the three classes would be required to meet the old monetary threshold before bringing a claim for economic or noneconomic loss. The statute was amended in 1988 to replace the monetary threshold with the new verbal threshold. Finally, the No Fault Act was amended in 1997 to eliminate all reference to a threshold. Instead, the act provided that any injured person within the three classes (uninsured, intoxicated or intentional) shall have no cause of action for recovery of economic or noneconomic loss. The loss limitation provisions of the No Fault Act were held to be constitutional in Caviglia v. Royal Tours, 178 N.J. 460 (2004), a case involving a culpably uninsured driver. The Court emphasized that the statute advances two important objectives of New Jersey s automobile insurance laws: a very powerful incentive to force compliance with compulsory insurance and cost containment. Uninsured Automobiles In Perrelli v. Pastorelli, 206 N.J. 193 (2011), the Court considered whether a passenger in her own uninsured automobile was entitled to pursue a claim for economic and noneconomic loss. The plaintiff, Denise Perrelli, was the owner of a 1992 Oldsmobile Cutlass. Initially, the
10 vehicle was insured by NJM; however, the policy was cancelled for nonpayment of premiums. Perrelli was seriously injured while riding as a passenger in her own uninsured automobile. She filed a complaint against Bridget and Paul Pastorelli, the owner and driver of the other automobile. The defendants filed a motion for summary judgment alleging that the action was barred because the plaintiff was the owner of an uninsured automobile. The trial court denied the motion and the Supreme Court granted the defendants motion for leave to appeal. At the outset, the court recognized that the best indicator of the intent of the legislature is the plain language of the statute. However, if a literal interpretation of the language would create a manifestly absurd result that is contrary to public policy, then the spirit of the law should control. The Court noted that the statute refers to any person who owns any uninsured automobile and is injured while operating an uninsured automobile. While the statute does not define an operator, the Court conceded that a literal interpretation of the language would construe the provisions as applying only to the driver of the automobile, not a passenger, even if the passenger was the owner. Nonetheless, the Court reasoned that such an interpretation would lead to a manifestly absurd result that would be contrary to public policy. The Court explained that the purposes of the loss limitation provision are to reduce the cost of automobile insurance, to relieve congestion of court calendars and to increase compliance with compulsory insurance laws. Thus, it would be against public policy to permit someone who owns an uninsured vehicle to recover economic and noneconomic loss solely because someone else was driving the car. COMMENTARY: I do not agree with the reasoning of the Court. First, it is a basic axiom of statutory construction that
11 words should be given their ordinary meaning. While the No Fault Act (Section 6 of Title 39) does not define operator, the Motor Vehicle Act (Section 1 of Title 39) defines an operator as the person who has actual physical control of a vehicle. N.J.S.A. 39:1-1. Under the facts of this case, it is clear that the plaintiff was not the operator of the vehicle since she was only a passenger and had no physical control. Second, the Court suggested that the loss limitation provisions would provide a very powerful incentive and greater compliance with compulsory insurance laws. In reality, however, ordinary policyholders do not read an insurance policy or understand its complex terms. Likewise, Gerald H. Baker is the author of the articles in this special issue. He is a certified trial attorney who regularly conducts seminars on automobile insurance including the verbal threshold, UM/ UIM coverage and PIP benefits for the New Jersey Institute for Continuing Legal Education, the New Jersey Association for Justice (formerly ATLA-NJ), the New Jersey State Bar Foundation and the New Jersey Law Journal. He received his B.A. from Cornell University in 1964 and his J.D. from Yale Law School in He is a member of the bars of the states of New Jersey and New York. He is admitted to practice before the United States Supreme Court; the U. S. Circuit Courts of Appeal for the Second, Third and Fourth Circuits; and the U. S. District Courts for the District of New Jersey and the Southern and Eastern Districts of New York. Baker represents plaintiffs in personal injury and wrongful death cases and is a member of the Million Dollar Advocates Forum. He is a member of the New Jersey State Bar Association, the New York State Bar Association, the American Bar Association and the Hudson County Bar Association. He serves on the board of governors of NJAJ and the board of trustees of the Hudson County Bar Association and the Hudson County Bar Foundation. He is a member of the NJSBA Legislative Committee and the chairman of the Special Committee on Automobile Reparations. He has been honored with the ATLA-NJ Gold
12 Medal, the NJSBA Distinguished Legislative and Amicus awards, the Trial Attorneys of New Jersey Trial Bar Award and the ICLE Alfred C. Clapp Laureate. Baker was formerly a partner in the Hoboken law firm of Baker, Pedersen & Robbins and is currently counsel to Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins in Springfield, Newark, Freehold, Ridgewood, Elizabeth and Hoboken. 207 N.J.L.J. 486 NEW JERSEY LAW JOURNAL, FEBRUARY 13,
13 the ordinary owner of an automobile does not know that the failure to purchase insurance will bar all legal rights for personal injuries. In the absence of such knowledge, there is no evidence to support the Court s bold statement that the loss limitations would induce compliance with compulsory insurance laws. Third, the loss limitation provisions were held constitutional in Caviglia, as applied to a culpably uninsured plaintiff: a person who had knowledge that she was uninsured. In this case, the Court has disregarded the plaintiff s claim that she was not culpably uninsured. Perrelli claims that she moved eight months before the accident, that she does not recall if she notified her insurance company of the change in address but she believed her insurance was still in effect on the day of the accident. At the least, the plaintiff should have been entitled to a hearing on the issue of whether she knew or should have known that her automobile was uninsured. I note that the courts are reluctant to expand the scope of legislation beyond its plain language. That caution should be especially followed when the expansion of a statute is accompanied by a limitation of legal rights. The failure to insure an automobile is a serious motor vehicle violation that should be accompanied by fines, the loss of registration privileges and the loss of a driver s license. However, the equation of a motor vehicle violation with the loss of legal rights to compensation is a quantum leap, and one that is beyond the knowledge of the average policyholder. I was comfortable with the statute when it was amended in 1985 and 1988 to apply the monetary threshold and verbal thresholds to the three classes of persons who are specified in the loss limitation provisions. However, the 1997 amendment is more aggressive since it bars all claims for economic or noneconomic loss. As Justice Albin understates in Aronberg (digested in this issue), some may think that such a result in too draconian and not
14 necessary to enforce compliance with the No Fault Act. I am one of those who think that the statute is punitive, not instructive. It is my opinion that the loss limitation provision should be interpreted literally and should apply only to the owner of an uninsured automobile who is injured while operating (in actual physical control) of an uninsured automobile, not to a person who is a passenger in her own uninsured automobile. Dram Shop In Voss v. Tranquilino, 206 N.J. 93 (2011), the Supreme Court affirmed the judgment of the Appellate Division that the loss limitations provisions of the No Fault Act do not bar a dram shop claim against a liquor licensee. The plaintiff, Frederick Voss, was a patron at Tiffany s Restaurant and was served a sufficient amount of alcohol to reach a blood alcohol concentration more than twice the legal limit. After leaving the restaurant, his motorcycle was struck by an automobile owned and operated by the defendant, Kristoff Tranquilino. Voss pleaded guilty to driving while intoxicated. Nonetheless, he filed suit against the driver of the automobile that struck him and the restaurant that served him the alcohol while he was visibly intoxicated. The trial court dismissed the suit against the driver under the loss limitation provisions of the No Fault Act since Voss pleaded guilty to DWI. However, the court held that the statute does not bar the plaintiff s claim against the bar under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act (commonly known as the Dram Shop Act). The Appellate Division affirmed. 413 N.J. Super. 82 (App. Div. 2010). See digest, Gerald H. Baker, A Look at No Fault 2010, 203 N.J.L.J. 441, Feb. 14, The court recognized that a literal reading of the statute suggests that an intoxicated plaintiff is barred from making all claims, whether against a negligent driver or a negligent server.
15 Nonetheless, the court explained that the two statutes serve different purposes. The No Fault Act restricts a person s civil remedy against a negligent driver, while the Dram Shop Act creates a civil remedy against a server of alcoholic beverages. Thus, the loss limitation provisions of the No Fault Act should be limited to actions against the negligent operators of automobiles and should not bar a claim against a licensed server. The Supreme Court affirmed in a per curiam opinion for the reasons expressed by the Appellate Division. In addition, the Court noted that the Dram Shop Act was enacted in 1987, while the No Fault Act was amended in There is nothing in the legislative history to suggest that the Legislature intended to override the Dram Shop Act, and there was no reason for the court to repeal the statute by implication. In fact, the two statutes could co-exist because they both deter drunk driving: the No Fault Act deters a person from driving while intoxicated, and the Dram Shop Act deters a liquor licensee from serving alcohol to a visibly intoxicated patron. In a strong dissent from unlikely allies, Justices Albin and Rivera-Soto argued that the plain language of the statute bars an intoxicated driver from bringing all claims and it makes no difference whether the tortfeasor is a person who ran a red light or a stop sign, or one who served him drinks at the bar he last visited. Instead, the dissenters suggest that the court has rewritten the statute by judicial decree based upon its own public-policy analysis to permit claims against licensed servers of alcohol. COMMENTARY: While the loss limitation provisions of the No Fault Act bar all civil actions for economic or noneconomic loss, there are two anomalies in the law. First, an intoxicated driver is not barred from receiving PIP benefits. In Walcott v. Allstate, 376 N.J. Super. 384 (App. Div. 2005), the court limited the exclusion to third-party liability claims and not to PIP claims.
16 Second, in Woodworth v. Joyce, 373 N.J. Super. 114 (App. Div. 2004), the court held that an intoxicated defendant is not barred from asserting the verbal threshold as a defense. Certainly, this decision conflicts with the assertions of the Supreme Court in Perrelli and Voss that the loss limitation provisions are a very powerful incentive to produce greater compliance with the compulsory insurance laws. There is simply no reason to bar an intoxicated plaintiff from bringing an affirmative cause of action for economic or noneconomic loss but permitting an intoxicated defendant to raise the verbal threshold as a defense. The incentive should be the same. Judicial Legislation These two cases, Perrelli and Voss, are good examples of judicial legislation. In both cases, the Supreme Court sets forth several basic rules of statutory instruction: The court must ascertain the intent of 1. 3 NEW JERSEY LAW JOURNAL, FEBRUARY 13, N.J.L.J. 486
17 the legislature. The best indicator of legislative intent 2. is the statutory language. The court should look at the plain lan3. guage of the statute. The court should ascribe ordinary 4. meaning to the words in the statute. If the language of the statute is clear 5. on its face, the court should enforce the statute as written. The court should not rewrite a stat6. ute based upon its own public policy analysis. If a literal interpretation of a statute 7. would be contrary to public policy or create a manifestly absurd result, the spirit of the law should control. What is the difference between plain language and the spirit of the law? In his dissent in Voss, Justice Albin warned that there is a fine line between interpreting statutory language and engrafting a judicial standard over that language. (Emphasis added.) Nonetheless, in both cases, the fine line has been blurred and the Supreme Court has elected to rewrite the loss limitation provisions of the No Fault Act. N.J.S.A. 39:6A-4.5. In Perrelli, the Court rewrote the statutory provisions with respect to uninsured drivers. In Voss, the Court rewrote the statutory provisions with respect to intoxicated drivers. As initially enacted in 1985, the loss limitation provisions refer to a person who is injured while operating an uninsured automobile. The statute was amended in 1988 and 1997 with no change in this language. Yet, in Perrelli, the Supreme Court has rewritten the statutory language to apply to a person while operating or causing to be operated an uninsured automobile. In Voss, the statute bars all claims for
18 economic or noneconomic loss sustained by a person who is convicted or pleads guilty to DWI. Yet, the Court has rewritten the statutory language to exempt claims arising under the Dram Shop Act. With all due respect to the Supreme Court, it is my opinion that such draftsmanship should be left to the Legislature. As Justice Albin says in Voss, judicial restraint commands that we not tinker with a clearly expressed, unambiguous statute that has a rational basis and purpose. If the Legislature has failed to express its true intent, it is for the Legislature, not the Court, to correct the statute. I understand that the Supreme Court has advanced sound reasons for enforcing the spirit of the law rather than its literal interpretation. Both cases are intended to deter drunk driving. In Perrelli, the Court intends to deter the owners of uninsured automobiles from allowing their vehicles to be operated while they are intoxicated. In Voss, the Court intends to deter taverns from serving alcohol to visibly intoxicated patrons who may operate motor vehicles after leaving the bar. Yet, the Legislature is presumed to have knowledge of the statutory and case law. The Legislature knew that the loss limitation provisions applied to the operators of automobiles. If they had wanted to bar all claims by persons who allow their uninsured vehicles to be operated by someone else, they could have said so. The Legislature knew that the Dram Shop Act permitted claims against licensed servers of alcohol. If they had wanted to bar all claims by intoxicated drivers, they could have said so. The real problem with interpreting legislative intent is that the spirit of the law will vary depending upon a court s public policy analysis. For example, I feel that the spirit of the law should permit an uninsured owner to make a claim even if they are a passenger in their own automobile. Likewise, I feel that the spirit of the law should permit an intoxicated driver to sue a licensed server.
19 Apparently, the Supreme Court agrees with me in Voss (with notable dissents by Justices Albin and Rivera-Soto) but disagrees with me in Perrelli. Whose public policy analysis is correct? Who has the right spirit? Wrongful Death In Aronberg v. Tolbert, 207 N.J. 587 (2011), the Court considered whether the loss limitation provisions bar claims under both the Survival Act and the Wrongful Death Act. The decedent, Lawrence Rosenberg, was killed in an accident while operating an uninsured automobile that was owned by him. His mother, the administratrix of his estate, brought an action against the negligent driver under both statutes. The trial court dismissed the survival claim since the decedent was the owner and operator of an uninsured automobile. However, the court refused to dismiss the wrongful death claim. The Appellate Division affirmed. 413 N.J. Super. 562 (App. Div. 2010). See digest, Gerald H. Baker, A Look at No Fault in 2010 ; 203 N.J.L.J. 443, Feb. 14, The court noted that the two statutes serve different purposes. The Survival Act protects the legal rights of the decedent (for his personal injuries) while the Wrongful Death Act protects the legal rights of his beneficiaries (for their pecuniary loss). Thus, the Appellate Division concluded that the loss limitation provisions of the No Fault Act clearly bar the survival claim of the uninsured decedent; however, the statutory bar is expressly limited to the claim of the uninsured driver. The decedent s beneficiaries, who are innocent of the decedent s culpable act of driving while uninsured, are not barred from bringing a claim under the Wrongful Death Act. The Supreme Court disagreed and reversed. The Court noted that the plain language of the No Fault Act bars any person
20 who fails to maintain insurance coverage from bringing a suit for economic or noneconomic loss. Likewise, the plain language of the Wrongful Death Act permits a decedent s beneficiaries to bring an action for pecuniary loss only if the decedent was entitled... to maintain an action for damages resulting from the injury. The Court read the language of the two statutes together and concluded that the decedent, the operator of an uninsured automobile owned by him, would not have been able to maintain an action for damages under the No Fault Act if death had not ensued. Thus, his beneficiaries were not entitled to bring an action under the Wrongful Death Act N.J.L.J. 486 NEW JERSEY LAW JOURNAL, FEBRUARY 13,
22 DANIEL E. ROSNER*+ EDWARD J. TUCKER PASQUALE PICARIELLO** TARIQ H. CHAUDHRI FRED R. BRAVERMAN* NEIL STACKHOUSE THERESA GALLO ROSNER STEPHANIE A. HARRIS SHANNA M. GEVERD IRINA SHAPOVALOVA MEMBER NJ BAR * MEMBER NJ & PA BAR ** MEMBER NJ, NY & PA BAR + CERTIFIED BY THE NJ SUPREME COURT AS A CIVIL TRIAL ATTORNEY OF COUNSEL PARALEGAL STAFF ROSNER LAW OFFICES A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 311 W. LANDIS AVENUE VINELAND, NJ TEL: (856) FAX: (856) PENNSYLVANIA OFFICE Law Office of Daniel E. Rosner, PC 2 Penn Center Plaza 1500 JFK Boulevard, Suite 900 Philadelphia, PA TEL: (215) FAX: (215) NJSBA and ICLE Presents: Auto Insurance Update 2012 Thresholds and PIP: All in the Family Written materials submitted by: Daniel E. Rosner, Esq. Certified Civil Trial Attorney Tariq Chaudhri, Esq. Friday, April 27, 2012 The below hypothetical fact pattern will help illustrate how important resident familial relationships are under NJ law to determine what PIP coverage is available and what tort threshold applies when one is injured in a NJ accident.
23 FACTS: Archie is driving his late model SUV with his wife Edith, his daughter Gloria and her husband Mike(Meathead) along with the next door neighbor George, and his son Lionel. For our hypothetical, they all live in Vineland, NJ. George s car is in the repair shop and Archie agreed to take George and his son to their dry cleaning shop. They are hit by a 2002 Toyota Prius driven by Maude in the middle of the intersection of and Landis Avenues in Vineland, NJ. As a result of the impact, Archie s SUV strikes a pedestrian, Ricky Ricardo, who was crossing in the crosswalk at the time of the accident. Everyone involved was injured and went to South Jersey Regional Medical center where they were all treated and released. INSURANCE COVERAGE: Archie was insured by NJM and has a standard PIP with a limitation on lawsuit threshold on his policy. He is the only named insured on the policy as his wife Edith does not drive. Mike and Gloria do not own a car as Mike is still a student. They both live with Archie and Edith. George owns a car that is insured with Allstate. He has no limitation on lawsuit on the policy with 15K in PIP benefits, with health insurance primary. Lionel does not live with his father and does own his own car, but does not have current insurance on the car, as he is rebuilding the engine since it needs to be replaced. The car is still registered in NJ. Maude has a special policy (dollar a day) since she has fallen on hard times and the acting business has not been doing well. She is insured with Praetorian Insurance Company. Ricky Ricardo was walking home from his day job at Pep Boys where he works as an auto mechanic. He is a singer at Eugene s nightclub in the evenings, a local Latin club. He lives with his girlfriend, Lucy, who does own a car that is insured with Geico with a 15k in PIP benefits and a Limitation of Lawsuit threshold. Ricky is listed on the policy as an additional driver only. QUESTIONS PRESENTED: What Tort threshold applies to each person? For tort threshold, the household policies combined with familial relationships will control, unless there is an exception. What PIP benefits are available to each person injured and who is responsible to pay the PIP benefits? Daniel E. Rosner, Esq. Certified Civil Trial
24 This answer is a little more complex and will be explained at the oral presentation. A good resource to find the answers to these questions and much more for anyone who handles these types of cases is: Craig & Pomeroy, New Jersey Auto Insurance Law (GANN, 2012). Here are the answers: 1. Archie: LOL, 250k pip with standard co-pay/ded (NJM) 1 2. Edith: LOL, 250k pip with standard co-pay/ded (NJM) 2 3. Gloria: LOL, 250k pip with standard co-pay/ded (NJM) 3 4. Meathead: No LOL, 250k pip with standard co-pay/ded (NJM) 4 1 Archie: Answer found in NJSA 39:6A-8.1: a. Election of a tort option pursuant to section 8 of P.L. 1972, c. 70 (C. 39:6A-8) shall be in writing and signed by the named insured on the coverage selection form required by section 17 of P.L. 1983, c. 362 (C. 39:6A-23). The form shall state the percentage difference in the premium rates or the dollar savings between the two tort options. The tort option elected shall apply to the named insured and any immediate family member residing in the named insured's household. "Immediate family member" means the spouse of the named insured and any child of the named insured or spouse residing in the named insured's household, who is not a named insured under another automobile insurance policy. 2 Edith: Answer found in NJSA 39:6A-8.1(d): d. The tort option elected by the named insured shall apply to all automobiles owned by the named insured and to any immediate family member who is not a named insured under another automobile insurance policy 3 Gloria: LOL, 250k pip with standard copay/ded(njm) Answer found in NJSA 39:6A-8.1(d), same analysis as Edith. 4 Meathead: Answer found in NJSA 39:6A-8.1(d): The verbal threshold is inapplicable to a person who is eligible for PIP benefits as a permissive user, passenger, or non-immediate family member of an insured who is not required to maintain PIP coverage is for accidents. Since Meathead is not a direct family member of the named insured Archie, then he is not bound by Archie s choice of threshold, but is an eligible passenger in the car entitled to PIP. Daniel E. Rosner, Esq. Certified Civil Trial Attorney
25 5. George: No LOL, Health insurance primary, 15k pip with standard copay/ded, unless no health insurance, then 750 ded. (Allstate) 5 6. Lionel: No LOL, 250k pip with standard co-pay/ded (NJM)(Assuming he can prove not culpably uninsured) Maude: LOL, E/R only PIP, Praetorian 7 8. Ricky: No LOL, 250 PIP with standard co-pay/ded (Uninsured pedestrian pip through PLIGA) 8 5 George: Answer found in NJSA 39:6A-8.1(d): d. The tort option elected by the named insured shall apply to all automobiles owned by the named insured 6 Lionel: NJSA 39:6A-7(b)(1), but in order for Lionel to collect PIP from host vehicle he must show he was not culpably insured. NJM, the host vehicle will cover for PIP as long as Lionel can prove not culpably insured. For Lionel, the benefit preclusion in N.J.S.A. 39:6A-7(b)(1) applies only to vehicles that were "being operated" at the time of the accident. The ultimate burden of persuasion on the issue of exclusion is on the insurer. The PIP claimant must then come forward and show that his automobile was not being operated in or around the time of the accident, based on a conscious determination to prevent such use of the uninsured vehicle. Gibson v. New Jersey Mfrs. Ins. Co., 261 N.J. Super 579 (App. Div. 1993). 7 Maude: Answer found in NJSA 39:6A-3.3(b)(1): " 'Emergency personal injury protection coverage' issued pursuant to this section means and includes only payment of treatment for emergency care in an amount not to exceed $250,000 per person per accident. 'Emergency care' means all medically necessary treatment of a traumatic injury or a medical condition manifesting itself by acute symptoms of sufficient severity such that absence of immediate attention could reasonably be expected to result in: death; serious impairment to bodily functions; or serious dysfunction of a bodily organ or part 8 Ricky: Answer found under Pedestrian PIP for uninsured pedestrians in 39: UCJF benefits. When any person qualified to receive payments under the provisions of the "Unsatisfied Claim and Judgment Fund Law" suffers bodily injury or death as a pedestrian for which personal injury protection benefits under the "New Jersey Automobile Reparation Reform Act," P.L.1972, c.70 (C.39:6A-1 et seq.), or when a pedestrian suffers bodily injury as provided by section 35 of P.L.2003, c.89 (C.39:6-86.7) then in such event the Unsatisfied Claim and Judgment Fund shall provide [the benefits enumerated in the statute]. Since Ricky is not a named insured on his girlfriend Lucy s policy, he becomes an uninsured pedestrian that does not own a car. Uninsured pedestrians are covered by UCJF/PLIGA pursuant to N.J.S.A. 39:6-86.1, which is not within the ambit of N.J.S.A. 39: 6A-8. Given the 1990 amendment, it seems clear that such persons are not subject to the verbal threshold. Source: Craig & Pomeroy, New Jersey Auto Insurance Law (GANN, 2012) at Daniel E. Rosner, Esq. Certified Civil Trial Attorney