DON WASHINGTON VS. PROGRESSIVE INSURANCE COMPANY (L-3843-19, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2422-19T1
DON WASHINGTON,
Plaintiff-Appellant,
v.
PROGRESSIVE INSURANCE
COMPANY,
Defendant-Respondent.
_____________________________
Submitted September 21, 2020 - Decided October 7, 2020
Before Judges Messano and Hoffman.
On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-3843-19.
Law Office of Karim Arzardi, attorneys for appellant
(David M. Fried, on the briefs).
Cooper Maren Nitsberg Voss & DeCoursey, attorneys
for respondent (Andrea L. Greene, on the brief).
PER CURIAM
Plaintiff appeals from the Law Division's February 5, 2020 order
dismissing his complaint against his automobile insurer, defendant Progressive
Casualty Insurance Company, improperly pled as Progressive Insurance
Company. The facts are undisputed.
On January 30, 2019, plaintiff drove his car from his home in New York
state to North Bergen. After shopping and exiting a store, plaintiff walked in a
crosswalk toward his parked car when he was struck by another driver and
injured. Plaintiff applied for personal injury protection (PIP) benefits under his
New York policy, which contained a $50,000 limit on PIP benefits. Defendant
paid PIP benefits on plaintiff's behalf, ultimately exhausting the policy limits.
Plaintiff filed this complaint. Noting defendant was authorized to conduct
business and issue automobile insurance policies in New Jersey, plaintiff
asserted that N.J.S.A. 17:28-1.4 (the Deemer Statute) applied and required
reformation of his policy to provide coverage up to New Jersey's mandatory PIP
policy limits, i.e., $250,000. See N.J.S.A. 39:6A-4(a).
Defendant moved to dismiss the complaint in lieu of filing an answer. It
argued that the Deemer Statute did not apply because plaintiff was a pedestrian
at the time of the accident. Defendant cited our decision in Leggette v.
Government Employees Insurance Co., in which, on similar facts, we held that
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"an out-of-state automobile policy is [not] 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." 450 N.J. Super. 261, 267 (App. Div. 2017). Because
plaintiff had exhausted the benefits under his New York policy, defendant
argued dismissal was appropriate.
Plaintiff argued that Leggette rested on erroneous interpretations of both
the Deemer Statute and N.J.S.A. 39:6A-4 and, therefore, was wrongly decided.
He also asserted that the case was factually different from the facts in Leggette.
Judge Kimberly Espinales-Maloney heard oral argument on defendant's
motion. In a concise written opinion that accompanied her order, Judge
Espinales-Maloney concluded that the facts essentially mirrored those presented
in Leggette, and our opinion controlled. She entered the order under review,
and this appeal followed.
Plaintiff reprises the arguments he made before the Law Division. We
conclude any factual differences between this case and Leggette are
insignificant and find Leggette's reasoning to be persuasive. We affirm and add
only these brief comments.
As in Leggette, the issue requires us to construe two statutes. In relevant
part, the Deemer Statute provides:
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[a]ny insurer authorized to transact . . . automobile . . .
insurance business in this State . . . which sells a policy
providing automobile . . . liability insurance coverage,
or any similar coverage, in any other state . . . shall
include in each policy coverage to satisfy at least the
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 (emphasis added).]
"The legislation was in response to a growing number of 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 was
intended "to reduce the demands on the Unsatisfied Claim and Judgment Fund."
Leggette, 450 N.J. Super. at 265 (emphasis added) (quoting Gov't Emps. Ins.
Co. v. Allstate Ins. Co., 358 N.J. Super. 555, 560 (App. Div. 2003)).
N.J.S.A. 39:6A-4 requires
every standard automobile liability insurance policy
. . . shall contain personal injury protection benefits for
the payment of benefits without regard to negligence,
liability or fault of any kind, to the named insured . . .
who sustain[s] bodily injury as a result of an accident
while occupying . . . or using an automobile, or as a
pedestrian, caused by an automobile or by an object
propelled by or from an automobile[.]
[(Emphasis added).]
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Every policy must provide for the payment of PIP benefits "in an amount not to
exceed $250,000 per person per accident." N.J.S.A. 39:6A-4(a).
As did the plaintiff in Leggette, plaintiff in this case argues that the
Deemer Statute's specific reference to N.J.S.A. 39:6A-4, and, in turn, that
statute's specific reference to mandatory PIP coverage for injuries to "a
pedestrian[] caused by an automobile[,]" means he was entitled to PIP benefits
in an amount greater than the policy limits of his New York policy. We rejected
that syllogism in Leggette, and we reaffirm that rejection here.
The plaintiff in Leggette was a Virginia resident who drove to New Jersey
to visit her daughter at Princeton University. 450 N.J. Super. at 263. Plaintiff
parked her car, walked away, and was crossing the street when she was struck
by another vehicle. Ibid. We concluded that the greater PIP benefits applied
only if the Deemer Statute was "triggered." Id. at 265. In other words, only
when "the automobile . . . insured under the policy is used or operated in this
State." Ibid. (quoting N.J.S.A. 17:28-1.4). We then noted by analogy that
"courts have examined 'the statutory words "occupying . . . or using" an
automobile in the context of eligibility for PIP benefits[,]' per N.J.S.A. 39:6A-
4." Id. at 268 (quoting Negron v. Colonial Penn Ins., 358 N.J. Super. 59, 62
(App. Div. 2003)). Ultimately,
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[w]e [could not] reconcile the Legislature's intent in
enacting the Deemer Statute to cover a pedestrian
accident, which is not a consequence of [the] plaintiff's
use of her automobile. Rather, we conclude[d]
coverage under the Deemer Statute demands
"substantial nexus" between the out-of-state vehicle
and the accident for which benefits are sought.
[Id. at 270 (citing Negron, 358 N.J. Super. at 62).]
We agree with this analysis. Requiring defendant to provide greater PIP
coverage than was purchased by plaintiff — its New York insured — simply
because plaintiff used his car to cross the state line into New Jersey runs counter
to the various legislative goals of the Deemer Statute. See, e.g., Whitaker v.
DeVilla, 147 N.J. 341, 348 (1997) (noting "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" (emphasis added)); Martin v. Home Ins. Co., 141 N.J. 279, 282 (1995)
(to provide "the occupants of an out-of-state car traveling in New Jersey [with]
the same financial protections as occupants of in-state cars traveling the same
roadways") (emphasis added); Gov't Emps. Ins. Co., 358 N.J. Super. at 560
(purpose was to provide protection to New Jersey's residents involved in
accidents with out-of-state vehicles). None of these cases, or any other
published case, suggest that the Legislature intended to provide out-of-state
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residents with increased PIP benefits when injured as a pedestrian simply
because they had driven their cars into New Jersey.
Plaintiff also asserts that this case was factually different from Leggette
because he was walking back to his car to drive away, whereas the plaintiff in
Leggette was struck by the other driver after she had locked her car and walked
away, without any indication of her imminent return to use the vehicle.
Plaintiff's future unrealized intention to enter his car does not establish a
"substantial nexus" to the vehicle at the time he was injured for purposes of the
Deemer Statute. The argument requires no further discussion. R. 2:11-
3(e)(1)(E).
Affirmed.
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