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

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1911-15T3
KATHLEEN LEGGETTE,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
May 30, 2017
v.
APPELLATE DIVISION
GOVERNMENT EMPLOYEES
INSURANCE COMPANY ("GEICO"),
Defendant-Respondent,
and
DERICK HARRIS,
Defendant.
_______________________________
Argued March 23, 2017 – Decided May 30, 2017
Before Judges Lihotz, O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No. L-
1585-14.
Mitchell J. Makowicz, Jr., argued the cause
for appellant (Blume, Forte, Fried, Zerres &
Molinari, P.C., attorneys; Mr. Makowicz, on
the brief).
Elizabeth C. Chierici argued the cause for
respondent (Chierici, Chierici & Smith,
P.C., attorneys; Ms. Chierici, on the
brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
Plaintiff Kathleen Leggette, a Virginia resident, was
struck by a New Jersey licensed driver as she walked across a
street in Princeton. Plaintiff appeals from the December 4,
2015 summary judgment dismissal of her declaratory judgment
complaint against her insurer, defendant Government Employees
Insurance Company (GEICO). In her complaint, plaintiff sought
personal injury protection (PIP) benefits, pursuant to N.J.S.A.
17:28-1.4, commonly known as the "Deemer Statute," which
generally requires an insurer, authorized to do business in New
Jersey, must provide PIP coverage for policies sold outside New
Jersey, whenever the insured automobile is "used or operated" in
this state.1 Plaintiff maintained her Virginia policy was deemed
to provide standard PIP coverage while her vehicle was in this
state. The trial judge concluded the Deemer Statute was
inapplicable to the circumstances presented. We affirm.
For purposes of the summary judgment motion, the parties
did not dispute any material facts. Plaintiff drove her
1
"N.J.S.A. 17:28-1.4 apparently acquired its name as the
Deemer Statute because it 'deems' New Jersey insurance coverage
and tort limitations to apply to out-of-state policies."
Zabilowicz v. Kelsey, 200 N.J. 507, 510 n.2 (2009); see also
Lusby v. Hitchner, 273 N.J. Super. 578, 583-84 (App. Div. 1994)
("[T]he statute eponymously 'deems' that the policy includes the
required coverage.").
2 A-1911-15T3
Virginia registered 2005 Toyota Sequoia, insured by GEICO, to
Princeton University to visit her daughter, a student.
Plaintiff parked her vehicle in a Princeton University parking
lot and began walking toward her daughter’s dormitory. While in
a crosswalk on Edwards Place, plaintiff was struck by an
automobile. Consequently, plaintiff suffered injuries and
incurred approximately $113,825.47 in medical bills.
Plaintiff filed a complaint and thereafter settled her
claims against the driver of the automobile. She initiated this
declaratory judgment action against defendant GEICO for PIP
coverage to satisfy resultant medical expenses. Plaintiff
alleged defendant, which is authorized to conduct business in
New Jersey, was legally obligated, by the Deemer Statute, to
provide minimum standard automobile insurance policy PIP
benefits, covering injuries suffered when her out-of-state-
insured vehicle was used in New Jersey. Defendant refuted this
interpretation, maintaining plaintiff, as a pedestrian, was not
using or operating her vehicle at the time of the accident, so
coverage required by the Deemer Statute was not triggered.
The parties filed competing motions for summary judgment.
The trial judge accepted plaintiff's position, concluding the
comprehensive insurance scheme provided PIP coverage to
plaintiff, despite being a pedestrian. The judge denied
3 A-1911-15T3
defendant's motion for summary judgment and granted plaintiff's
motion in an October 23, 2015 order.
Defendant moved to vacate this order and sought dismissal
of the complaint. Following oral argument, the Law Division
judge reviewed the legislative history accompanying the adoption
of the Deemer Statute and reconsidered his prior order. The
judge vacated the October 23, 2015 order and concluded a party
must be using or operating his or her vehicle at the time of the
accident to trigger Deemer coverage. Plaintiff's appeal from
the December 4, 2015 order followed.
The narrow legal issue on appeal requires consideration of
the Legislative intent in enacting N.J.S.A. 17:28-1.4. These
principles guide our review.
A matter of statutory interpretation is a legal issue
requiring our de novo review. See, e.g., Manalapan Realty, L.P.
v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); In re
Declaratory Judgment Actions Filed by Various Muns., 446 N.J.
Super. 259, 281 (App. Div. 2016), aff’d as modified on other
grounds, 227 N.J. 508 (2017). Accordingly, "we accord no
deference to the trial judge's interpretive conclusions." Brick
Twp. PBA Local 230 v. Twp. of Brick, 446 N.J. Super. 61, 65
(App. Div. 2016).
4 A-1911-15T3
Our paramount goal in interpreting a statute is to
ascertain the Legislature's intent, requiring we start with the
statutory language. See, e.g., Maeker v. Ross, 219 N.J. 565,
575 (2014) ("The goal of all statutory interpretation 'is to
give effect to the intent of the Legislature.'" (quoting
Aronberg v. Tolbert, 207 N.J. 587, 597 (2011))); DiProspero v.
Penn, 183 N.J. 477, 492 (2005) ("[G]enerally, the best indicator
of that intent is the statutory language."). When interpreting
a statute, we give words "their ordinary meaning and
significance." Tumpson v. Farina, 218 N.J. 450, 467 (2014)
(quoting DiProspero, supra, 183 N.J. at 492). Further, "we must
construe the statute sensibly and consistent[ly] with the
objectives that the Legislature sought to achieve." Nicholas v.
Mynster, 213 N.J. 463, 480 (2013). "We will not adopt an
interpretation of the statutory language that leads to an absurd
result or one that is distinctly at odds with the public-policy
objectives of a statutory scheme." State v. Morrison, 227 N.J.
295, 308 (2016) (citing Murray v. Plainfield Rescue Squad, 210
N.J. 581, 592 (2012)).
Enacted in 1985, the Deemer Statute "is part of this
State's no fault automobile insurance plan." Gov't Emps. Ins.
Co. v. Allstate Ins. Co., 358 N.J. Super. 555, 560 (App. Div.
2003). "The legislation was in response to a growing number of
5 A-1911-15T3
cases where New Jersey residents were injured in accidents
caused by out-of-state drivers whose insurance coverage was less
than New Jersey's statutory requirements" and the law was
intended "to reduce the demands on the Unsatisfied Claim and
Judgment Fund." Ibid. (quoting Craig and Pomeroy, N.J. Auto
Ins. Law, cmt. § 1:2-6 (2003)). The Deemer Statute provides, in
pertinent part:
Any insurer authorized to transact or
transacting automobile or motor vehicle
insurance business in this State . . . shall
include in each policy coverage to satisfy
at least the liability insurance
requirements of . . . personal injury
protection benefits coverage pursuant to . .
. [N.J.S.A. 39:6A-4] . . . whenever the
automobile or motor vehicle insured under
the policy is used or operated in this
State. . . .
[N.J.S.A. 17:28-1.4.]
"In short, the Deemer Statute furnishes the covered out-of-state
driver with New Jersey's statutory no-fault PIP and other
benefits and, in exchange, deems that driver to have selected
the limitation-on-lawsuit option of N.J.S.A. 39:6A-8(a)."
Zabilowicz, supra, 200 N.J. at 514.
Plaintiff focuses on the statutory phrase "whenever the
automobile or motor vehicle insured under the policy is used or
operated in this State," maintaining defendant was required to
provide PIP coverage because her vehicle entered New Jersey.
6 A-1911-15T3
She contends "[p]recluding [her] from receiving PIP benefits
because she is an out-of-state resident would be contrary to the
plain language of the Deemer Statute and would be inconsistent
with well-established case law." Plaintiff argues the statute's
provisions extend to any vehicles "that enter into and travel
around New Jersey, irrespective of th[e] automobile's direct
involvement in the accident." Citing Indem. Ins. Co. v. Metro.
Cas. Ins. Co., 33 N.J. 507 (1960), plaintiff urges "[o]ne who
operates a car uses it, but one can use a car without operating
it." Id. at 513 (citation omitted). Accordingly, plaintiff
maintains the fact she was not in her vehicle at the time she
was injured is irrelevant.
Plaintiff also argues this interpretation aligns with
N.J.S.A. 39:6A-4's requirements, which mandate every standard
automobile insurance policy shall contain PIP benefits to the
named insured "who sustain[s] bodily injury as a result of an
accident while occupying, entering into, alighting from or using
an automobile," as well "as a pedestrian, caused by an
automobile . . . ."
Defendant confronts plaintiff's argument as an attempt to
circumvent the legislative purpose in adopting the Deemer
Statute, which defendant urges aimed to protect New Jersey
residents injured in automobile accidents from out-of-state
7 A-1911-15T3
operators with insufficient coverage. Citing the same statutory
phrase relied upon by plaintiff, defendant insists a nexus
between the out-of-state automobile and the accident is
necessary. Thus, "the automobile . . . insured under the out-
of-state policy must be operated or used at the time of the New
Jersey accident before the Deemer Statute is triggered."
Defendant asserts N.J.S.A. 39:6A-4's PIP requirements apply only
if the Deemer Statute is triggered.
Various cases have examined challenges to the applicability
of the Deemer Statute when an out-of-state driver is involved in
an automobile accident in New Jersey. See, e.g., Whitaker v.
DeVilla, 147 N.J. 341, 349-55 (1997) (reviewing constitutional
and other challenges to the Deemer Statute); Cooper Hosp. v.
Prudential Ins. Co., 378 N.J. Super. 510, 515 (App. Div. 2005)
("Generally speaking, the [D]eemer [S]tatute effectively
mandates that out-of-state policies within its ambit are
automatically construed as New Jersey policies when the covered
vehicle is involved in a New Jersey accident."); Gov't Emps.
Ins. Co., supra, 358 N.J. Super. at 561 (enacting the Deemer
Statute, the Legislature "sought to ensure that New Jersey-
authorized insurance companies provide to their out-of-state
insureds travelling in New Jersey the same protections required
of in-state insured vehicles") (citing Martin v. Home Ins. Co.,
8 A-1911-15T3
141 N.J. 279, 282 (1995))). These authorities state the Deemer
Statute "guarantees that out-of-state insureds driving in New
Jersey and insured by companies authorized to transact insurance
business in New Jersey have available up to $250,000 in personal
injury protection (PIP) benefits, see N.J.S.A. 39:6A-4,
irrespective of the comparable benefits mandated by the
insured's home state." Whitaker, supra, 147 N.J. at 348
(emphasis added). However, we have located no case mirroring
the facts at hand.
We frame the issue of first impression as whether an out-
of-state automobile policy is deemed by N.J.S.A. 17:28-1.4 to
provide PIP benefits when the named insured is injured by a New
Jersey driver while a pedestrian. We conclude the answer is no.
The parties' divergent views in construing the plain
meaning of the Deemer Statute expose an ambiguity. "[I]f a
statute's plain language is ambiguous or subject to multiple
interpretations, this [c]ourt 'may consider extrinsic evidence
including legislative history and committee reports.'" Parsons
ex rel. Parsons v. Mullica Bd. of Educ., 226 N.J. 297, 308
(2016) (quoting State v. Marquez, 202 N.J. 485, 500 (2010)); see
also Brick Twp. PBA Local 230, supra, 446 N.J. Super. at 65
("[W]hen the statutory language is ambiguous and yields more
than one plausible interpretation . . . we turn to extrinsic
9 A-1911-15T3
sources, such as legislative history." (citing DiProspero,
supra, 183 N.J. at 492-93)). "In the absence of specific
guidance, our task is to discern the intent of the Legislature
not only from the terms of the Act, but also from its structure,
history and purpose." Martin, supra, 141 N.J. at 285 (quoting
Fiore v. Consol. Freightways, 140 N.J. 452, 471 (1995)). "The
inquiry [into statutory meaning] in the ultimate analysis is [to
determine] the true intention of the law; and, to this end, the
particular words are to be made responsive to the essential
principle of the law." Id. at 290 (quoting Roig v. Kelsey, 135
N.J. 500, 516 (1994)).
We are not persuaded by plaintiff's argument that her
injuries, suffered while a pedestrian, are covered by the Deemer
Statute's specific reference to N.J.S.A. 39:6A-4, which provides
PIP benefits to pedestrians injured caused by a motor vehicle.
This provision only applies if the Deemer Statute is triggered,
which turns on the meaning of "whenever the automobile or motor
vehicle insured under the policy is used or operated in this
State."
Focusing on this language, we note courts have examined
"the statutory words 'occupying . . . or using' an automobile in
the context of eligibility for PIP benefits[,]" per N.J.S.A.
10 A-1911-15T3
39:6A-4. Negron v. Colonial Penn Ins., 358 N.J. Super. 59, 62
(App. Div. 2003) (alteration in original). This court stated:
The broad principle developed by case law
has been summarized with disarming
simplicity in Craig & Pomeroy, New Jersey
Auto Insurance Law, § 6:2-3, pg. 119 (Gann
2003):
[I]t is not necessary that the
injury be directly or proximately
caused by the automobile or by its
motion or operation, so long as
there is a substantial nexus
between the occupancy or use of
the vehicle and the injury.
Cases considering the issue of substantial
nexus in PIP matters were surveyed in
Lindstrom v. Hanover Ins. Co., 138 N.J. 242,
247-53 (1994). More recent cases, like Ohio
Cas[.] Gr[p.] v. Gray, 323 N.J. Super. 338
(App. Div. 1999); Svenson v. Nat['l]
Consumer Ins. Co., 322 N.J. Super. 410, 413-
17 (App. Div. 1999); and Stevenson v. State
Farm Indem[.] Co., 311 N.J. Super. 363, 372-
73 (App. Div. 1998), have addressed the
issue with similar surveys.
[Ibid.]
In Negron, a passenger exited a vehicle to ask a bar patron
"who was pounding the hood" and blocking the car's path, to
move. Id. at 61. The passenger "was immediately assaulted and
knocked down by several people." Ibid. The driver then exited
the vehicle to aid the passenger; he too was seriously injured.
Ibid. The passenger-plaintiff argued "his actions were directly
linked to the use of the automobile in which he was traveling
11 A-1911-15T3
because he was acting to aid the driver of his car, to clear a
path of travel and to stop third parties from damaging the
vehicle." Id. at 62. We were not persuaded and affirmed the
trial judge's conclusion the passenger's actions to aid the
driver, although commendable, had a "purpose . . . not
sufficiently 'entwined with normal use' of a vehicle to bring
this case within the ambit of PIP coverage." Id. at 61.
In Vasil v. Zullo, 238 N.J. Super. 572 (App. Div. 1990), we
affirmed the denial of benefits to a passenger who exited the
vehicle blocked by another motorist during a "road rage"
incident. The other driver stabbed the passenger who, after
being injured, returned to the vehicle and died. Id. at 575.
We concluded the plaintiff could not "reasonably be said to have
been 'using' the [defendant's] vehicle simply because the
altercation with the occupants of the [other car] arose out of
the operation of the [defendant's] car or because the [other
car] was blocking the [defendant's] vehicle's path." Id. at
577.
Cases have held "[a] non-occupant of a vehicle may be found
to have been 'using' the vehicle in which he was riding or
driving while examining the damage sustained in an accident or
while pushing the vehicle from the roadway to the shoulder."
Ibid. (citing Clyburn v. Liberty Mut. Ins. Co., 214 N.J. Super.
12 A-1911-15T3
644, 648-49 (App. Div.), certif. denied, 107 N.J. 652 (1987));
see also Gray, supra, 323 N.J. Super. at 341 (finding continuing
use of vehicle by driver injured when leaving vehicle to remove
shopping carts blocking vehicle). However, when the break is
more than temporary, the vehicle becomes unrelated to events of
the accident.
Here, plaintiff parked her car, locked the doors, walked
away, exited the parking lot, and was crossing a street when she
was struck by a vehicle. At the time she sustained her
injuries, her use of her vehicle had ended. We are satisfied
plaintiff's interpretation of the phrase "whenever the
automobile . . . insured under the policy is used . . . in this
State" to include merely driving a vehicle into New Jersey is
overbroad. N.J.S.A. 17:28-1.4. We cannot reconcile the
Legislature's intent in enacting the Deemer Statute to cover a
pedestrian accident, which is not a consequence of plaintiff's
use of her automobile. Rather, we conclude coverage under the
Deemer Statute demands "substantial nexus" between the out-of-
state vehicle and the accident for which benefits are sought.
Negron, supra, 358 N.J. Super. at 62 (quoting Craig & Pomeroy,
New Jersey Auto Insurance Law, § 6:2-3, pg. 119 (Gann 2003)).
Here, the negligent act that caused plaintiff's injury was not
related to the use of her vehicle in New Jersey. The Deemer
13 A-1911-15T3
Statute is not applicable to extend PIP benefits to satisfy her
medical costs.
Affirmed.
14 A-1911-15T3