Nowell James v. New Jersey Manufacturers Insurance Company (071344)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Nowell James and Maryann James v. New Jersey Manufacturers Insurance Company (A-26-12) (071344)
Argued October 7, 2013 -- Decided February 3, 2014
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court considers the retroactivity of N.J.S.A. 17:28-1.1(f), which prohibits the use of
step-down provisions in an employer’s commercial motor vehicle liability policy to provide less uninsured or
underinsured motorist coverage (UM/UIM coverage) for employees than that which is provided to the “named
insureds” on the policy.
On July 5, 2007, plaintiff Nowell James was driving a vehicle owned by his employer, Metric Plumbing
and Heating, Inc. (Metric), and was significantly injured when another car struck the Metric vehicle. James settled
with the owners of the other car for $100,000, the policy limit of their insurance. The Metric vehicle was insured
under a policy issued on March 18, 2007, by defendant New Jersey Manufacturers Insurance Company (NJM). The
policy included a $500,000 limit for UM/UIM coverage. Since the $100,000 James received in the settlement did
not defray his medical costs, he sought UIM coverage at the $500,000 limit as an “insured” person under Metric’s
policy. However, the NJM policy contained a step-down provision capping the recovery of UIM benefits for
unnamed insureds at the limit contained in James’s own personal policy, or a policy by which he was covered as a
family member. Since James was covered under his wife’s policy, which had a UIM limit of $50,000, his maximum
UIM recovery under the NJM policy was capped at $50,000. Because James had already received an amount in
excess of $50,000 from his settlement, NJM denied his UIM claim.
On July 9, 2009, James filed suit against NJM, seeking UIM benefits under the policy issued to Metric.
James partially relied upon N.J.S.A. 17:28-1.1(f), which provides that policies naming a corporate or business entity
as the named insured, “shall be deemed to provide the maximum [UM/UIM] coverage available under the policy to
an [employee] regardless of whether the [employee] is an additional named insured under that policy” or is covered
under any other policy providing UI/UIM coverage. N.J.S.A. 17:28-1.1(f) was enacted into law, and made
immediately effective, on September 10, 2007, five months after NJM issued its policy to Metric, and two months
after James’s motor vehicle accident.
NJM moved for summary judgment, arguing that N.J.S.A. 17:28-1.1(f) does not apply retroactively and
that the policy’s step-down provision remained applicable. The trial court granted summary judgment to NJM,
finding that N.J.S.A. 17:28-1.1(f) did not retroactively bar the application of step-down provisions in employer
motor vehicle liability policies in existence at the time of the law’s enactment. James appealed, and the Appellate
Division reversed in an unpublished opinion. The panel concluded that N.J.S.A. 17:28-1.1(f) reformed the NJM
policy that was in existence when the amendment took effect, reasoning that the step-down provision was rendered
unenforceable regardless of when during the life of the policy an accident involving an employee actually occurred.
The Court granted NJM’s petition for certification. 212 N.J. 460 (2012).
HELD: As of its effective date of September 10, 2007, N.J.S.A. 17:28-1.1(f) applied to and prospectively reformed,
for employees, a corporation’s or business entity’s motor vehicle liability policy containing UM/UIM step-down
provisions, including policies that were in force at that time. No exceptions to the rule favoring prospective
application of new legislation pertain to N.J.S.A. 17:28-1.1(f) . Because James’s accident preceded N.J.S.A. 17:28-
1.1(f)’s effective date, his claims are governed by the provisions of the NJM policy that were in existence as of the
date of his accident.
1. The Court’s decision in Pinto v. New Jersey Manufacturers Insurance Co., 183 N.J. 405 (2005), upheld the
validity of a step-down provision in an employer’s motor vehicle liability policy with respect to UM/UIM benefits
provided to an employee. On September 10, 2007, about two years after Pinto was decided, N.J.S.A. 17:28-1.1(f)
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was enacted, reversing the effect of Pinto by prohibiting step-down provisions which limit UM/UIM coverage for
employees in employer business motor vehicle insurance policies. In pertinent part, it provides that policies issued
to corporate or business entities shall not provide less UM/UIM covered for an employee than the coverage provided
to the named insured. Where a corporate or business entity is the named insured, the policy “shall be deemed to
provide the maximum [UM/UIM] coverage available under the policy to an [employee] regardless of whether the
[employee] is an additional named insured under that policy” or is covered under any other policy providing
UI/UIM coverage. N.J.S.A. 17:28-1.1(f) took effect immediately upon enactment. (pp. 10-13)
2. In accordance with notions of fairness and due process, statutes should generally be given prospective
application. In determining whether a statute could be applied retroactively, a court must first ask whether the
Legislature intended to provide for retroactive application and then ask whether such application will result in
manifest injustice or unconstitutional interference with vested rights. Three circumstances justify giving a statute
retroactive effect: (1) when there is express or implicit legislative intent that it apply retroactively; (2) when it is
curative, merely clarifying the legislative intent of a previous act without altering it in any substantial way; and (3)
when warranted by the parties’ expectations. Once it is determined that a statute is subject to retroactive application,
an inquiry must be made as to the potential for manifest injustice to the adversely-affected party. (pp. 13-17)
3. The plain language of N.J.S.A. 17:28-1.1(f) is the Court’s starting point in its retroactivity analysis. The clear
language of the amendment’s two operative sentences shows that step-down provisions are not entirely prohibited.
N.J.S.A. 17:28-1.1(f) directs how employees must be treated in the presence of such provisions, but does not render
them ultra vires in other settings, such as when a non-employee user of a corporate vehicle is injured by an
uninsured or underinsured motorist. The statutory language is similarly explicit in identifying its effective date of
September 10, 2007. Nothing in the plain language of the statute indicates an intended retroactive effect. When
considered in conjunction with the operative sentences of the legislation, the natural and most straightforward
application of the immediate effective date means that N.J.S.A. 17:28-1.1(f) reformed policies as of that date. Thus,
only employees seeking coverage for accidents occurring after the effective date would be covered under reformed
policies. This conclusion does not result in manifest injustice to insurers because they have no contractual
expectation that the insurance regulatory scheme will remain unalterably fixed. (pp. 17-23)
4. The Court disagrees with the Appellate Division’s conclusion in Hand v. Philadelphia Insurance Co., 408 N.J.
Super. 124 (App. Div), certif. denied, 200 N.J. 506 (2009), in which it determined that the language of N.J.S.A.
17:28-1.1(f) evinced an implicit legislative intent to retroactively reform all commercial liability policies by
eliminating step-down provisions in existence on the effective date of the new legislation and providing an
immediate remedy for any claims pending as of that date. The Court reiterates that the plain language of N.J.S.A.
17:28-1.1(f) does not eliminate step-down provisions, instead simply thwarting implementation of such provisions
for a certain class of insureds. As of the amendment’s effective date, it began blocking the application of step-down
provisions to those insureds and altered contract terms to provide a remedy. (pp. 23-25)
5. The Court has previously held that UM/UIM claims specifically arise at the time of the accident. As of the date
of James’s accident, Metric’s policy with NJM had not yet been affected by N.J.S.A. 17:28-1.1(f), and the plain
language of that amendment evinces no legislative intent for retroactive application. Additionally, the curative
exception to the general rule favoring prospective application of statutes is inapplicable because N.J.S.A. 17:28-
1.1(f) neither cured a judicial misinterpretation of the law nor clarified or expanded a preexisting statutory
provision. Finally, since N.J.S.A. 17:28-1.1(f) was neither adopted nor effective at the time Metric’s policy was
issued or when James’s accident occurred, NJM had a reasonable basis to believe its step-down provision was
enforceable. Although employee UM/UIM claims involving accidents that occurred on or after the effective date of
N.J.S.A. 17:28-1.1(f) are governed by that new law, James’s UM/UIM claim is governed by the provisions of the
NJM policy that were lawfully in existences as of the date of his accident. The Appellate Division erred in
retroactively applying N.J.S.A. 17:28-1.1(f) to James’s claim and reversing the trial court’s award of summary
judgment to NJM. (pp. 25-32)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE RABNER, JUSTICES ALBIN and PATTERSON, and JUDGE CUFF
(temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUDGE RODRÍGUEZ (temporarily
assigned) did not participate.
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SUPREME COURT OF NEW JERSEY
A-26 September Term 2012
071344
NOWELL JAMES and MARYANN
JAMES, his wife,
Plaintiffs-Respondents,
v.
NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,
Defendant-Appellant.
Argued October 7, 2013 – Decided February 3, 2014
On certification to the Superior Court,
Appellate Division.
Daniel J. Pomeroy argued the cause for
appellant (Pomeroy, Heller & Ley, attorneys;
Mr. Pomeroy and Karen E. Heller, on the
briefs).
Alexander J. Rinaldi argued the cause for
respondents (Salny Redbord and Rinaldi,
attorneys).
JUSTICE LaVECCHIA delivered the opinion of the Court.
In Pinto v. New Jersey Manufacturers Insurance Co., 183
N.J. 405, 407 (2005), this Court enforced a commercial motor
vehicle liability policy’s “step-down” provision, which had the
effect of capping uninsured or underinsured motorist coverage
(UM/UIM coverage) provided through an employer’s commercial
policy to employees and other qualifying “insureds” at the
1
limits available to such individuals through their personal
automobile insurance coverage. The Pinto holding relied on
prior recognition of the legitimacy of such contractual capping
provisions, id. at 412 (citing Magnifico v. Rutgers Cas. Ins.
Co., 153 N.J. 406, 418 (1998)), when construing the policy
language before the Court.
Two years later, a new statute was enacted that prohibits,
in motor vehicle liability policies issued to corporate or
business entities, the use of step-down provisions to provide
less UM/UIM coverage for employees than that which is provided
to the “named insureds” on the policy; and further, if the
policy lists only the business entity as the “named insured”
then employees are “deemed” eligible for maximum available
coverage. L. 2007, c. 163, codified at N.J.S.A. 17:28-1.1(f).
The new legislation, which was signed into law on September 10,
2007, specified that it was effective immediately. L. 2007, c.
163, § 2.
This appeal involves the application of the new legislation
to a policy that was in effect at the time that the legislation
became effective. The policy contained a step-down provision
that but for the new legislation would govern the limits of
UM/UIM coverage for the injured employee involved in this
matter. Specifically, we are called on to address whether the
step-down provision is enforceable for a UIM claim by the
2
employee concerning an accident that occurred prior to the
adoption of N.J.S.A. 17:28-1.1(f). Thus, we must consider the
retroactivity of the statute.
The law favors prospective application of a new statute.
To conclude otherwise requires a finding that one of the
recognized exceptions to that rule applies. We conclude that
there is no evidence that the Legislature explicitly or
implicitly directed retroactive application and no other
exception pertains here. The legislation, by its very terms,
reformed commercial motor vehicle liability policies as of the
date it became effective. While that brought about the
amendment of existing policies from that date forward for the
life of that policy and for any new or renewal policies that
were issued subsequent to the new law’s effective date, the new
law did not retroactively alter otherwise lawful policy terms
applicable to claims that arose before the legislation took
effect. A UM/UIM claim under an occurrence-based motor vehicle
liability policy is governed by the policy terms in effect on
the date of the occurrence, here the accident. The timing of
the instant accident preceded the effective date when N.J.S.A.
17:28-1.1(f) reformed the employer’s motor vehicle liability
policy.
Applying established rules of statutory construction and
the retroactivity of new legislation, we hold that N.J.S.A.
3
17:28-1.1(f) does not retroactively apply to an accident that
preceded the new legislation’s effective date.
I.
A.
On July 5, 2007, plaintiff Nowell James was injured in an
automobile accident while driving a vehicle owned by his
employer, Metric Plumbing and Heating, Inc. (Metric). James’s
car was struck by another vehicle, operated by Ria T. Demeo and
owned by Jon J. Demeo. James suffered serious injuries as a
result of the collision. He subsequently settled with the
Demeos for $100,000, the policy limit of their insurance. This
appeal focuses on his UIM claim under his employer’s commercial
motor vehicle liability policy.
James was operating a vehicle that Metric insured under a
policy issued by New Jersey Manufacturers Insurance Company
(Defendant or NJM). The NJM policy was issued on March 18,
2007, and included a $500,000 limit for uninsured/underinsured
(UM/UIM) coverage. Because the $100,000 received from the
Demeos was insufficient to defray the costs of James’s injuries,
James sought UIM coverage at the $500,000 limit as an “insured”
person under Metric’s policy with NJM. However, as was the case
in Pinto, the policy issued by NJM contained a step-down
provision limiting the recovery of UIM benefits for certain
categories of insureds. For individuals who were not “named
4
insureds” on the policy, which James was not, eligibility for
UIM benefits was capped at the limit contained in the insured’s
own personal policy, or a policy by which the insured was
covered as a family member. The specific policy language states
as follows:
Limit of Insurance
1. Regardless of the number of covered autos,
insureds, premiums paid, claims made or
vehicles involved in the accident, the
LIMIT OF INSURANCE shown in the
Declarations Supplement I for [UM/UIM]
Coverage is the most we will pay for all
damages resulting from any one accident
with an uninsured motor vehicle or an
underinsured motor vehicle.
a. However, subject to our maximum Limit
of Insurance for this coverage, if:
(1) An insured is not the individual
named insured under this policy;
(2) That insured is an individual named
insured under one or more other
policies providing similar coverage;
and
(3) All such other policies have a
limit of insurance for similar coverage
which is less than the Limit of
Insurance for this coverage; then the
most we will pay for all damages
resulting from any one accident with
[a UM/UIM] motor vehicle shall not
exceed the highest applicable limit of
insurance under any coverage form or
policy providing coverage to that
insured as an individual named insured.
b. However, subject to our maximum Limit
of Insurance for this coverage, if:
(1) An insured is not the individual
named insured under this policy or any
other policy;
5
(2) That insured is insured as a family
member under one or more other policies
providing similar coverage; and
(3) All such other policies have a
limit of insurance for similar coverage
which is less than the Limit of
Insurance for this coverage;
then the most we will pay for all
damages resulting from any one accident
with [a UM/UIM] motor vehicle shall not
exceed the highest applicable limit of
insurance under any coverage form or
policy providing coverage to that
insured as a family member.
James was insured under his wife’s personal automobile
policy, which had a UIM limit of $50,000. Thus, under Metric’s
NJM policy, with its applicable step-down provision, James’s
maximum UIM recovery under the NJM policy was capped at $50,000.
Accordingly, NJM denied James’s UIM claim because James already
had received an amount in excess of $50,000 from his settlement
with the Demeos.
B.
On July 9, 2009, James filed this action against NJM
seeking UIM benefits under the NJM motor vehicle liability
policy issued to his employer to compensate him for injuries
sustained in the July 5, 2007, accident. In support of his
claim, James primarily relied upon N.J.S.A. 17:28-1.1(f), which
provides in pertinent part as follows:
Notwithstanding the provisions of this
section or any other law to the contrary, a
motor vehicle liability policy or renewal of
such policy of insurance, . . . issued in
6
this State to a corporate or business entity
. . . , shall not provide less uninsured or
underinsured motorist coverage for an
individual employed by the corporate or
business entity than the coverage provided
to the named insured under the policy. A
policy that names a corporate or business
entity as a named insured shall be deemed to
provide the maximum uninsured or
underinsured motorist coverage available
under the policy to an individual employed
by the corporate or business entity,
regardless of whether the individual is an
additional named insured under that policy
or is a named insured or is covered under
any other policy providing uninsured or
underinsured motorist coverage.
[N.J.S.A. 17:28-1.1(f).]
N.J.S.A. 17:28-1.1(f) was enacted into law, and made immediately
effective, on September 10, 2007 -- five months after NJM issued
its policy to Metric, and two months after the motor vehicle
accident for which James seeks UIM compensation. Thus, James’s
claim is premised on the amendment to N.J.S.A. 17:28-1.1 that
was adopted during the effective period of NJM’s policy with
Metric, but after the accident injuring James.
NJM filed a motion for summary judgment arguing that
N.J.S.A. 17:28-1.1(f) does not apply retroactively to the facts
of James’s claim and that the policy’s step-down provision was
applicable to the claim. In response, James argued that the
Legislature intended to reform all motor vehicle liability
policies issued to corporate or business entities that were in
existence on September 10, 2007, when N.J.S.A. 17:28-1.1(f)
7
became effective. Therefore, James maintained that the step-
down clause in NJM’s policy, issued to Metric and in effect on
September 10, 2007, had been abrogated by law on that date and
for the entirety of the policy’s life.
The trial court determined that the step-down provision
included in Metric’s policy was implicated on these facts
because: (1) James was covered as an insured under his wife’s
policy, which contained a UIM coverage limit of $50,000; and (2)
James had received in excess of that amount from his settlement
with the Demeos. Accordingly, under the terms of the NJM step-
down provision, NJM was required to pay “no more” than the
$50,000 coverage limit contained in James’s wife’s policy.
Rejecting James’s claim that N.J.S.A. 17:28-1.1(f)
retroactively barred application to employees of step-down
provisions in employer motor vehicle liability policies in
existence at the time of the law’s enactment, the court granted
summary judgment to NJM. The court explained that because the
step-down provision was valid at the time the policy was issued
by NJM to Metric, it would be unfair to increase NJM’s potential
liability by retroactively reforming the policy in light of the
subsequent passage of N.J.S.A. 17:28-1.1(f). The court
explained that NJM permissibly “relied on the law which
permitted step down provisions” when negotiating its motor
vehicle liability policy with Metric and that James “d[id] not
8
have the same reasonable expectations” because N.J.S.A. 17:28-
1.1(f) was not adopted until after Metric had already entered
into its insurance contract with NJM.
James appealed and the Appellate Division reversed in an
unpublished opinion. The panel reviewed two prior Appellate
Division decisions that had considered the retroactive effect to
be given to N.J.S.A. 17:28-1.1(f): Olkusz v. Brown, 401 N.J.
Super. 496 (App. Div. 2008) (finding no legislative intent for
retroactive application of new law), and Hand v. Philadelphia
Insurance Co., 408 N.J. Super. 124 (App. Div.) (finding implicit
support for retroactivity but finding manifest injustice in
retroactive application under facts presented), certif. denied,
200 N.J. 506 (2009). The panel noted that although those
decisions had reached differing conclusions as to the
Legislature’s intent concerning the retroactive implementation
of the statute, neither had provided relief from an otherwise
valid step-down provision for accidents that had long preceded
the new law’s effective date of September 10, 2007. The panel
in the instant matter, confronting an accident that had occurred
during the life of a policy in effect at the time that N.J.S.A.
17:28-1.1(f) became law, but before the statute’s September 10,
2007, effective date, concluded that the amendatory provision
reformed the NJM policy that was in existence when the amendment
took effect. The panel reasoned that the step-down provision in
9
NJM’s policy with Metric “was eliminated” and, further, that
NJM’s step-down provision was unenforceable irrespective of when
during the life of that policy an accident involving an employee
of Metric actually occurred. The panel also rejected the
argument that its application of the amendatory legislation was
“manifestly unjust or otherwise impair[ed] defendant’s
contractual rights.”
We granted NJM’s petition for certification to consider
whether the amendatory legislation applies retroactively to an
accident that preceded the effective date of the legislation
and, if so, whether reforming a motor vehicle liability policy
in such a setting would be manifestly unjust. James v. N.J.
Mfrs. Ins. Co., 212 N.J. 460 (2012).
II.
A.
As previously stated, this Court’s decision in Pinto,
supra, issued on June 6, 2005, upheld the validity of and
enforced a step-down provision in respect of UM/UIM benefits
provided to an employee of a corporate entity through the
employer’s motor vehicle liability policy. 183 N.J. at 407-10.
The Pinto holding was premised on this Court’s prior recognition
of the legitimacy of such contractual capping provisions. Id.
at 412 (citing Magnifico v. Rutgers Cas. Ins. Co., 153 N.J. 406,
418 (1998)). And, in its construction of the language of the
10
insurance policy involved, the decision rested on common law
principles of contract interpretation. Id. at 412-13.
A little more than two years after Pinto was decided, the
Legislature passed Senate Bill No. 1666, which the Governor
signed into law on September 10, 2007, as chapter 163 of the
Laws of 2007. The new legislation amended N.J.S.A. 17:28-1.1 to
include the following additional subsection:
f. Notwithstanding the provisions of this
section or any other law to the contrary, a
motor vehicle liability policy or renewal of
such policy of insurance, insuring against
loss resulting from liability imposed by law
for bodily injury or death, sustained by any
person arising out of the ownership,
maintenance or use of a motor vehicle,
issued in this State to a corporate or
business entity with respect to any motor
vehicle registered or principally garaged in
this State, shall not provide less uninsured
or underinsured motorist coverage for an
individual employed by the corporate or
business entity than the coverage provided
to the named insured under the policy. A
policy that names a corporate or business
entity as a named insured shall be deemed to
provide the maximum uninsured or
underinsured motorist coverage available
under the policy to an individual employed
by the corporate or business entity,
regardless of whether the individual is an
additional named insured under that policy
or is a named insured or is covered under
any other policy providing uninsured or
underinsured motorist coverage.
The Statement accompanying S-1666 described the purpose of
the legislation.
11
This bill prohibits the use of step-
down provisions in motor vehicle liability
policies issued to corporate or business
entities to lower uninsured or underinsured
motorist coverage for employees to the
limits of coverage available to the
employees under their personal policies.
This bill is in response to the New
Jersey Supreme Court’s decision in [Pinto].
In Pinto, the court held that as to a motor
vehicle liability policy that names a
corporate or business entity as a named
insured, step-down provisions which limit
uninsured or underinsured motorist coverage
for employees of that entity that are not
individuals named on the policy are valid
and enforceable. Thus, the court’s ruling,
which upholds earlier case law on the
subject, allows an employee’s coverage under
an employer’s business motor vehicle
insurance policy to be limited to the lower
limits of uninsured or under insured
motorist coverage contained in the
employee’s individual motor vehicle
liability policy, even in situations in
which the employee is injured in a covered
vehicle in a work-related accident, if the
employer’s policy so provides.
This bill reverses the effect of the
Pinto decision by prohibiting step-down
provisions in these policies. Further, the
bill expressly provides that a policy that
names a corporate or business entity as a
named insured shall be deemed to provide the
maximum uninsured or underinsured motorist
coverage available under the policy to any
individual employed by the corporate or
business entity, regardless of whether the
individual is an additional named insured
under that policy, or is a named insured or
is covered under any other policy providing
uninsured or underinsured motorist coverage.
12
In respect of the new law’s effective date, S-1666 provided that
“[t]his act shall take effect immediately.” See L. 2007, c.
163, § 2.
The question presented here is whether the amendment to
N.J.S.A. 17:28-1.1 was intended to apply to an accident that
preceded its effective date, but which occurred during the life
of a policy that was in force at the time of the statute’s
enactment. Our analysis is informed by rules of statutory
construction that govern the retroactive application of
legislation.
B.
It is well established that “statutes generally should be
given prospective application.” In re D.C., 146 N.J. 31, 50
(1996). Settled rules of statutory construction favor
prospective rather than retroactive application of new
legislation. See Cruz v. Cent. Jersey Landscaping, Inc., 195
N.J. 33, 45 (2008); Nobrega v. Edison Glen Assocs., 167 N.J.
520, 536 (2001); see also Gibbons v. Gibbons, 86 N.J. 515, 522
(1981) (“It is a fundamental principle of jurisprudence that
retroactive application of new laws involves a high risk of
being unfair.” (quoting 2 Sutherland, Statutory Construction,
§ 41.02 at 247 (4th ed. 1973))). The preference for prospective
application of new legislation “is based on our long-held
notions of fairness and due process.” Cruz, supra, 195 N.J. at
13
45; accord Landgraf v. USI Film Prods., 511 U.S. 244, 266, 114
S. Ct. 1483, 1497, 128 L. Ed. 2d 229, 253 (1994) (stating that
“[t]he Due Process Clause . . . protects the interests in fair
notice and repose that may be compromised by retroactive
legislation”).
There is a two-part test for determining “‘whether a
statute could be applied retroactively.’” D.C., supra, 146 N.J.
at 50 (quoting Phillips v. Curiale, 128 N.J. 608, 617 (1992)).
The first part questions whether the
Legislature intended to give the statute
retroactive application. The second part
involves whether retroactive application of
that statute will result in either an
unconstitutional interference with vested
rights or a manifest injustice.
[Ibid. (internal citations and quotation
marks omitted).]
Consistent application of that test results in three
circumstances that will justify giving a statute retroactive
effect: (1) when the Legislature expresses its intent that the
law apply retroactively, either expressly or implicitly; (2)
when an amendment is curative; or (3) when the expectations of
the parties so warrant. See Cruz, supra, 195 N.J. at 46; D.C.,
supra, 146 N.J. at 50; Twiss v. State, 124 N.J. 461, 467 (1991);
Gibbons, supra, 86 N.J. at 522-23.
The Legislature may demonstrate its intent to apply a
statute retroactively either by stating so “in the language of
14
the statute or in the pertinent legislative history . . . or
[such intent may be] implied.” Gibbons, supra, 86 N.J. at 522
(citation omitted); see also Oberhand v. Dir., Div. of Taxation,
193 N.J. 558, 571 (2008) (noting legislative intent that statute
be given retroactive application may be express or implied).
Implied retroactivity may be found from the statute’s operation
when retroactive application is necessary to fulfill legislative
intent. See Gibbons, supra, 86 N.J. at 522 (noting that implied
retroactivity may be found where “necessary to make the statute
workable or to give it the most sensible interpretation”);
Twiss, supra, 124 N.J. at 467 (same). When the Legislature
addresses whether a statute should apply retroactively to the
law’s enactment, that expression of legislative intent should be
given effect absent a compelling reason not to do so. See
Nobrega, supra, 167 N.J. at 537.
A statutory provision also may be afforded retroactive
application if it is “curative,” that is, designed to “remedy a
perceived imperfection in or misapplication of a statute.”
Schiavo v. John F. Kennedy Hosp., 258 N.J. Super. 380, 386 (App.
Div. 1992), aff’d, 131 N.J. 400 (1993); see Cruz, supra, 195
N.J. at 46. “Generally, curative acts are made necessary by
inadvertence or error in the original enactment of a statute or
in its administration.” 2 Sutherland, Statutory Construction,
§ 41.11 at 417 (5th ed. 1991). We have explained that an
15
amendment is curative if it does “not alter the act in any
substantial way, but merely clarifie[s] the legislative intent
behind the [previous] act.” 2nd Roc-Jersey Assocs. v. Town of
Morristown, 158 N.J. 581, 605 (1999); accord Schiavo, supra, 258
N.J. Super. at 386 (stating similarly that “the new statute
[must be] intended simply to explain and to clarify the existing
law rather than to change the meaning of the original law”
(internal citations and quotation marks omitted)).
Finally, we have acknowledged that, absent a clearly
expressed intent by the Legislature to have a statute apply only
prospectively, “such considerations as the expectations of the
parties may warrant retroactive application of a statute.”
Gibbons, supra, 86 N.J. at 523.
Once it has been determined that a statute is subject to
retroactive application, a separate inquiry requires examination
for manifest injustice to the party adversely affected by
retroactive application of the changed law. See ibid. Thus,
notwithstanding a readily gleaned legislative intent to
retroactively apply new legislation, or the determination that a
statute is clearly curative, the impact on the affected party
must be considered. See D.C., supra, 146 N.J. at 58 (stating
that affected party’s reliance on prior law and “the unfairness
of changing that law” are important factors in retroactivity
analysis); Innes v. Innes, 117 N.J. 496, 511 (1990) (stating
16
that manifest injustice inquiry focuses on “whether the parties
relied on prior law to their detriment, such that retroactive
application would cause a ‘deleterious and irrevocable’ result”
(quoting Gibbons, supra, 86 N.J. at 523-24)).
III.
In analyzing the retroactivity question before us, we first
must examine the change in law that the new statute directs.
The plain language of N.J.S.A. 17:28-1.1(f), enacted in response
to the Pinto holding, is our starting point in discerning and
implementing the legislative intent underlying this new statute,
including the issue of retroactive effect. See Norfolk S. Ry.
Co. v. Intermodal Props., LLC, 215 N.J. 142, 166 (2013).
The opening operative language of the legislation is
detailed and precise in directing the effect that the new
legislation is to have:
Notwithstanding the provisions of this
section or any other law to the contrary, a
motor vehicle liability policy or renewal of
such policy of insurance, insuring against
loss resulting from liability imposed by law
for bodily injury or death, sustained by any
person arising out of the ownership,
maintenance or use of a motor vehicle,
issued in this State to a corporate or
business entity with respect to any motor
vehicle registered or principally garaged in
this State, shall not provide less uninsured
or underinsured motorist coverage for an
individual employed by the corporate or
business entity than the coverage provided
to the named insured under the policy.
17
[N.J.S.A. 17:28-1.1(f) (emphasis added).]
That straightforward language prohibits providing an employee
with less coverage than the named insured on a corporate or
business entity’s commercial automobile liability policy. The
plain language of the second sentence of the amendment further
directs what should happen if the corporate or business entity’s
commercial automobile liability policy has not identified any
named insured -- other than the business entity itself -- which
was the same situation as existed in Pinto. That second
sentence of N.J.S.A. 17:28-1.1(f) states as follows:
A policy that names a corporate or business
entity as a named insured shall be deemed to
provide the maximum uninsured or under
insured motorist coverage available under
the policy to an individual employed by the
corporate or business entity, regardless of
whether the individual is an additional
named insured under that policy or is a
named insured or is covered under any other
policy providing uninsured or under insured
motorist coverage.
Giving that plain and direct language its normal meaning, it is
apparent that neither of the two operative sentences comprising
this legislative provision prohibits step-down provisions in
commercial motor vehicle liability policies for uninsured or
underinsured motorist coverage.
Stated simply, step-down provisions are not ultra vires as
a result of the statute’s plain language. The Court’s role in
undertaking statutory interpretation is to give “words their
18
ordinary meaning and significance.” Perez v. Professionally
Green, LLC, 215 N.J. 388, 399 (2013) (quoting DiProspero v.
Penn, 183 N.J. 477, 492 (2005)). A court may not “rewrite a
plainly-written enactment of the Legislature []or presume that
the Legislature intended something other than that expressed by
way of the plain language” of the statute. Ibid. (alteration in
original) (internal citation and quotation marks omitted). The
text of the instant statute does not “prohibit” use of step-down
provisions, notwithstanding that generalized description in the
sponsor’s statement. Rather, the two operative sentences of the
new law direct how employees must be treated in the presence of
such provisions. If the words are clear and unambiguous,
extrinsic aids may not be used to create ambiguity. See State
v. Shelley, 205 N.J. 320, 323 (2011). It is the text of the
statute that controls. Ibid.
The precise way in which the operative language of N.J.S.A.
17:28-1.1(f) is worded demonstrates that the amendment does not
render step-down provisions ultra vires in other settings in
which an “insured” under a motor vehicle liability policy issued
to a corporate or business entity might remain subject to a
step-down limit on coverage under a commercial policy. Examples
of such other settings in which a step-down would operate
permissibly include a family member of an employee riding in a
corporately registered car, or a non-employee permissive user of
19
the vehicle, who was injured by an uninsured or underinsured
motorist. As was pointed out correctly in argument by NJM
before this Court, such examples would meet the criteria of an
innocent “insured” eligible for coverage under a typical
liability policy of automobile insurance and, specific to the
case at hand, under the policy in issue in this matter. NJM
persuasively argues that one would expect that the Legislature
was aware that an “insured” subject to a commercial policy’s
step-down provision for UM/UIM applies more broadly than simply
to the employees of the business entity and, further, that the
Legislature, by not outright prohibiting all use of step-down
provisions in commercial motor vehicle liability policies,
recognized sound policy reasons for permitting such
contractually limiting provisions to be negotiated in the
setting of commercial liability insurance.
That said, although the Legislature did not proscribe the
use of step-down provisions in corporate or business motor
vehicle liability policies, the language of the two operative
sentences clearly altered how policies containing such
provisions would be permitted to operate in respect of
employees. Again, we follow the well-recognized principle that
a statute’s language must be given its ordinary meaning.
N.E.R.I. Corp. v. N.J. Highway Auth., 147 N.J. 223, 236 (1996).
The straightforward text of N.J.S.A. 17:28-1.1(f) is not
20
ambiguous as to how it alters commercial policies of automobile
insurance. We thus give those words their normally ascribed
meaning: The level of UM/UIM coverage for a “named insured” in
a policy shall be the same level that is provided to employees
of the corporation or business entity by operation of law, as
directed through the first sentence of the new legislation. If
the corporation or the business entity is the only named
insured, then employees of that entity must receive under the
commercial policy the maximum available amount of UM/UIM
coverage by operation of law, as directed through the second
sentence of the new legislation.
The language of the statute is also explicit in identifying
the effective date of the amendment. Pursuant to section 2 of
the bill that, when enacted, became N.J.S.A. 17:28-1.1(f), the
amendment was to take effect immediately. See L. 2007, c. 163,
§ 2. Because the bill was signed into law on September 10,
2007, the new law took effect immediately on September 10, 2007.
As the Olkusz panel aptly noted, had the Legislature intended an
earlier date for the law to take effect, that intention could
have been made plain in the very section directing when the law
would become effective. Olkusz, supra, 401 N.J. Super. at 502.
However, the Legislature did not do so. Neither the law nor the
bill sponsor’s statement expresses that the law was to have
operative effect before its stated effective date. Id. at 503.
21
In short, the plain language of the statute simply does not
specify an intended retroactive effect of the statute on
commercial motor vehicle liability policies prior to the law’s
effective date. Ibid. We are therefore in accord with the view
generally accepted in the Appellate Division that the
Legislature provided no express direction that the new
legislation be given a retroactive application. See ibid.;
Hand, supra, 408 N.J. Super. at 138.
That does not mean that the Legislature did not explicitly
intend for N.J.S.A. 17:28-1.1(f) to impact policies in existence
on the amendment’s effective date. To the contrary, we have no
doubt from the language of the new law that the Legislature
intended immediately to affect motor vehicle liability policies
of corporations or business entities in force as of the date
that the new law took effect. The natural and most
straightforward application of the immediate effective date in
tandem with the directory nature of the operative sentences of
the legislation leads us to conclude that the new legislation
reformed policies as of the law’s effective date by stating what
level of UM/UIM coverage must be provided to employees through
the commercial automobile policy held by their corporate or
business employer. Indeed, the “shall be deemed” language of
the second sentence pointedly specified that employees would
receive the maximum available level of UM/UIM coverage when only
22
the business was identified as the “named insured” under the
policy, plainly evidencing the Legislature’s intent to
immediately alter a policy in existence when the statute took
effect. In combination, we conclude that those explicit and
detailed statutory terms clearly demonstrate that employees
seeking coverage for accidents occurring after the legislation
took effect would be covered under reformed policies, as
directed by law pursuant to the legislation.
To the extent that such an interpretation interferes with
policies negotiated before the amendment’s passage but in
existence on September 10, 2007, we find explicit legislative
intent that the legislation should have that impact. Insurers
cannot cry foul for the legislative determination to implement a
mid-policy alteration for accidents occurring after the
effective date for, as we recently stated, “[i]n a highly
regulated industry, such as insurance, businesses have no
‘contractual expectation’ that a naturally fluid regulatory
scheme, ‘subject to change at any time,’ will remain in an
unalterably fixed state.” Farmers Mut. Fire Ins. Co. v. N.J.
Prop. Liab. Ins. Guar. Ass’n, 215 N.J. 522, 547 (2013) (citation
omitted).
IV.
In the facts of this appeal, we are asked whether Metric’s
policy with NJM, in existence when the new law came into effect,
23
should be regarded as changed prior to the date of the
amendment’s enactment so as to include the date on which James’s
accident occurred. To reach such a conclusion, there must be an
implicit intent by the Legislature for such retroactive
application of the new law’s textual directives or some other
exception to the rule of prospective application of a new law
because no explicit direction for retroactive application was
forthcoming from the legislation or its history. We turn first
to an examination for any implicit intent to have the law
applied as James argues.
A.
James and the panel below relied for support on the
analysis in Hand, supra, in which the Appellate Division
concluded that the language of N.J.S.A. 17:28-1.1(f) evinced an
implicit legislative intent to retroactively reform all
commercial liability policies containing a step-down provision
in existence on the effective date of the new legislation and to
provide an immediate remedy for all who had a claim pending as
of that date. 408 N.J. Super. at 141. The Hand panel reasoned
that a solely prospective application to policies issued after
the date of the law’s enactment would render much of N.J.S.A.
17:28-1.1(f) superfluous. Id. at 139-41. Thus, the panel
continued, the Legislature must have intended for N.J.S.A.
17:28-1.1(f) to eliminate step-down provisions and to bar their
24
enforcement in all policies for claims pending as of the
effective date of the legislation. Id. at 141 (concluding that
Legislature intended to provide remedy to plaintiff
notwithstanding that accident occurred two years prior to
amendment’s enactment, and claim was filed prior to amendment on
policy whose term apparently had expired before legislation took
effect). While it is correct that a retroactive intent may be
implied from a statute’s operation, we glean no such implicit
intent in this amendatory legislation.
First, as noted, a plain language construction of the
operative terms of the new legislation reveals that it does not
proscribe step-down provisions. It simply thwarts
implementation of such provisions for a certain class of
insureds who otherwise might be subject to them, namely
employees of a corporate or business entity whose policy
contains such a provision. The legislation does not prevent a
step-down provision from operating for other persons subject to
its terms. Thus, when the amendment became effective it
immediately began blocking the provision’s application to
employees and altered or filled in contract terms to provide a
remedy. In other words, on its effective date N.J.S.A. 17:28-
1.1(f) reformed the contract by operation of law. The timing of
the reformation of the contract is critical.
25
Like many motor vehicle insurance policies, the policy in
this case was an “occurrence policy,” whose benefits are
triggered on the date of the occurrence, generally the accident.
See Zuckerman v. Nat’l Union Fire Ins. Co., 100 N.J. 304, 312
(1985) (discussing “occurrence” policies in context of
automobile insurance). We previously have held that UM/UIM
claims specifically “arise at the time of the accident.” Green
v. Selective Ins. Co. of Am., 144 N.J. 344, 353 (1996). Under
this system, an insured’s right to UM/UIM coverage and the
benefits to be accorded arises at the time of the occurrence.
Thus, for accidents like the one that unfortunately occurred in
James’s case, the date of the accident controls the occurrence
date and the legal obligations under the contract. At the time
of James’s accident, the contract had not yet been affected by
the amendatory provision, even though that corporate entity’s
commercial motor vehicle liability policy was affected by the
legislative amendment later during the contract’s policy period.
As stated previously, N.J.S.A. 17:28-1.1(f) amended
policies when the law took effect, immediately reforming
existing policies of insurance prospectively from that date in
accordance with its precise and direct terms as to how
commercial motor vehicle liability policies must treat employees
under any step-down provision impacting UM/UIM coverage. Thus,
an accident to an employee occurring after the effective date of
26
the amendment but before the expiration of the policy period
would be treated differently by operation of law than would be
an accident that preceded that law’s effective date.
Our construction gives plain and direct meaning to the
straightforward language of the new law. See DiProspero, supra,
183 N.J. at 492. It gives immediate effect to the law’s
reference to policies, which we understand the Legislature to
have meant existing policies as of the time of the law’s
immediate implementation. Further, our interpretation of the
plain meaning of the law’s effective date provision and how that
applies to the operative provisions of the legislation does not
render superfluous any of the law’s references to the “renewal”
of policies. See McCann v. Clerk of Jersey City, 167 N.J. 311,
321 (2001) (“It is a cardinal rule of statutory construction
that full effect should be given, if possible, to every word of
a statute.” (internal quotation marks omitted)). The amendatory
legislation has continuing effect on any renewal policy for
existing customers, as well as for any subsequently issued
policy of insurance to a new commercial insured, that contains a
step-down provision governing UM/UIM benefits that must be
applied in accordance with the public policy that the
Legislature has decreed for business entities insuring corporate
vehicles registered or garaged in New Jersey.
27
In sum, we see no explicit or implicit legislative intent
to apply the law in the “retroactive” way in which James seeks.
While the amendment applies to the corporate policy issued by
NJM to Metric, it amends the policy as of the date the amendment
took effect, September 10, 2007, and not before.
B.
We perceive no other basis of support for the retroactive
application sought by James.
The curative exception to the general rule favoring the
prospective application of statutes is not applicable here.
N.J.S.A. 17:28-1.1(f) did not cure a judicial misinterpretation
of the law. See 2nd Roc-Jersey Assocs., supra, 158 N.J. at 605.
Prior case law had recognized the use of step-down provisions,
see, e.g., Magnifico v. Rutgers Cas. Ins. Co., 153 N.J. 406, 418
(1998), and Pinto merely interpreted and enforced contractual
language consistent with that common law. Pinto, supra, 183
N.J. at 407. The new law disallows the “enforceability of a
contractual clause, which [this Court] in Pinto . . . found to
be an issue of ‘insurance contract interpretation.’” Olkusz,
supra, 401 N.J. Super. at 503. Based on public policy
considerations, the amendment now prohibits the application of
step-down provisions in business entities’ motor vehicle
insurance policies to limit the recovery of UM/UIM benefits by
employees. It does not “clarify or expand upon a preexisting
28
statutory provision.” Ibid. It is not curative under any
definition of the term. See 2nd Roc-Jersey Assocs., supra, 158
N.J. at 605.
There also is no basis for concluding that the expectations
of the parties justify retroactive application of N.J.S.A.
17:28-1.1(f). The insurance policy was issued on March 18,
2007, and the accident occurred on July 5, 2007. At neither
point was N.J.S.A. 17:28-1.1(f) adopted or effective. The
controlling law held that this type of step-down clause was
enforceable. See Pinto, supra, 183 N.J. at 412. Accordingly,
at the time of the issuance of the contract and of the accident,
NJM had a reasonable basis to believe that the provision was
enforceable.
The expectation of retroactive application should be
strongly apparent to the parties in order to override the lack
of any explicit or implicit expression of intent for retroactive
application. No case for such expectation has been made out
here. To the extent that James points to the existence of a
pending bill in the Legislature at the time of his accident, the
argument fails to establish an expectation that is recognizable
as requiring a retroactive application of the new law to his
case. The possibility that a bill might become law is an
expectation built on uncertainty until it happens. Moreover,
the bill that James points to never indicated in its language or
29
its accompanying statements that it would provide retroactive
relief. Therefore, we do not find that the “expectations of the
parties” exception to the general rule favoring the prospective
application of new legislation is present here.
We thus conclude that the amendment is not curative and
that the expectations of the parties do not warrant the
retroactive application of N.J.S.A. 17:28-1.1(f) to UM/UIM
claims arising from accidents that occurred before its effective
date, September 10, 2007.
C.
To summarize, with respect to the question of retroactivity
of new legislation that is before us, N.J.S.A. 17:28-1.1(f) by
its very language had an immediately reformative effect on
commercial motor vehicle liability policies in existence on the
date of its enactment, like the one whose policy life included
the date of James’s accident. The new law reformed policies
when it became effective; however, an employee’s claim made on a
motor vehicle liability policy must be judged based on the law
governing the policy at the time of the occurrence: the
accident. Thus, employee UM/UIM claims involving accidents that
occurred on or after the effective date of N.J.S.A. 17:28-1.1(f)
are governed by that new law. Cf. Sexton v. Boyz Farms, Inc.,
780 F. Supp. 2d 361, 366 (D.N.J. 2011) (concluding that N.J.S.A.
17:28-1.1(f) reformed policies extant on September 10, 2007,
30
such that claims arising after September 10, 2007, would no
longer be subject to step-down provisions).
We hold that, when it became effective, the new law applied
to and prospectively reformed, for employees, a corporation’s or
business entity’s motor vehicle liability policy containing
UM/UIM step-down provisions, including policies that were in
force as of the law’s effective date, September 10, 2007. Our
holding enforces the effective date plainly directed by the
Legislature and all operative language of the new provision.
The holding also incorporates our conclusion that none of the
exceptions to the general rule favoring prospective application
of new legislation pertain to N.J.S.A. 17:28-1.1(f).
James’s UM/UIM claim is governed by the provisions of the
NJM policy that were lawfully in existence as of the date of his
accident, which preceded the effective date of the new law. We
therefore conclude that the Appellate Division erred in
retroactively applying N.J.S.A. 17:28-1.1(f) to James’s claim
and reversing the trial court’s award of summary judgment to NJM
on that basis.1
1
This matter is before the Court on NJM’s petition for
certification. We therefore reject James’s contention before
this Court that, despite the non-applicability of N.J.S.A.
17:28-1.1(f), summary judgment was not appropriate because, he
claims, there was an issue of material fact as to whether James
was a “named insured” under Metric’s policy. We note that it
was undisputed that the only “named insured” in the policy was
Metric and that James was an “insured” under the policy.
31
V.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE RABNER, JUSTICES ALBIN and PATTERSON, and
JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s
opinion. JUDGE RODRÍGUEZ (temporarily assigned) did not
participate.
Although James argues that there is a genuine dispute over
whether he should be regarded as the equivalent of a named
insured, that argument was rejected in Pinto, supra, which
addressed essentially identical policy language and concluded
that a policy is unambiguous where it names the corporate entity
as the only “named insured” and includes employees as
“insureds.” 183 N.J. at 417.
32
SUPREME COURT OF NEW JERSEY
NO. A-26 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
NOWELL JAMES and MARYANN
JAMES, his wife,
Plaintiffs-Respondents,
v.
NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,
Defendant-Appellant.
DECIDED February 3, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST REVERSE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) ----------------------- ---------------------
JUDGE CUFF (t/a) X
TOTALS 5
1