IFA INSURANCE COMPANY v. ROBERT E. HILL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5405-11T1

IFA INSURANCE COMPANY,

Plaintiff-Appellant,

v.

ROBERT E. HILL,

Defendant,

and

NATIONWIDE PROPERTY & CASUALTY

INSURANCE COMPANY,

Defendant-Respondent.

___________________________________________________

A

February 14, 2013

Before Judges Fisher and St. John.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-0682-12.

Gregory E. Peterson argued the cause for appellant (Dyer & Peterson, attorneys; Mr. Peterson, of counsel and on the brief).

George A. Prutting, Jr. argued the cause for respondent (Prutting & Lombardi, attorneys; Mr. Prutting of counsel; Mr. Prutting and Gregory J. Keresztury, on the brief).

PER CURIAM

On May 22, 2010, Howard Smith, a New Jersey resident, was injured in an auto accident in Lyndhurst allegedly caused by Robert Hill, a North Carolina resident. Smith's insurer, plaintiff IFA Insurance Company, paid personal injury protection (PIP) benefits to Smith and then sought, by way of this action, reimbursement from Hill and his insurer, Nationwide Property & Casualty Insurance Company. Even though Hill's Nationwide policy did not provide PIP coverage, Nationwide successfully obtained summary judgment in the trial court on the basis that it is a PIP carrier -- from which another PIP carrier may not seek reimbursement -- because Nationwide's out-of-state policy was reformed, by operation of the deemer statute, N.J.S.A. 17:28-1.4,1 to include PIP coverage in these circumstances. We affirm substantially for the reasons setforth inJudge KennethJ. Grispin's oral decision, adding only the following comments.

We start with the fact that New Jersey vehicle owners are required to maintain auto insurance, N.J.S.A. 39:6A-1(a), which must include coverage for the payment of PIP benefits to the named insured "without regard to . . . fault of any kind," N.J.S.A. 39:6A-4. An insurer that pays PIP benefits is also entitled to seek reimbursement from a tortfeasor, who was not required to maintain PIP coverage at the time of the accident, as well as that tortfeasor's insurer, but not from another PIP carrier. N.J.S.A. 39:6A-9.1. In short, N.J.S.A. 39:6A-9.1 "allows PIP carriers to recover not from other PIP carriers but from non-PIP carriers and uninsureds." Unsatisfied Claim & Judgment Fund Bd. v. N.J. Mfrs. Ins. Co., 183 N.J. 185, 191 (1994); see also Liberty Mut. Ins. Co. v. Thomson, 385 N.J. Super. 240, 246 (App. Div.), certif. denied, 188 N.J. 219 (2006).

Hill's Nationwide policy did not expressly provide PIP coverage. But Nationwide, as mentioned, falls within the parameters of the deemer statute, which "automatic[ally] reform[s] . . . out-of-state policies" to include PIP coverage when the out-of-state insured is involved in a New Jersey accident. Watkins v. Davis, 268 N.J. Super. 211, 212-13 (App. Div. 1993). Nationwide is, thus, properly viewed in this setting as a PIP carrier from whom IFA may not seek reimbursement. Unsatisfied Claim & Judgment Fund Bd., supra, 183 N.J. at 191; Liberty Mutual, supra, 385 N.J. Super. at 246.2

Notwithstanding these well-established consequences, IFA argues that Nationwide's offer of PIP coverage to Hill and Hill's passengers approximately two years after the accident somehow precludes application of the deemer statute. IFA contends that the second sentence of the deemer statute requires that an out-of-state insurer, such as Nationwide, offer PIP coverage to its insured "whenever the automobile or motor vehicle is used or operated in this State." N.J.S.A. 17:28-1.4. This is a misreading of the statute, which does not compel the "offering" of such coverage, but only declares that the policy "shall include" this State's statutory minimum insurance coverage. Moreover, the rights and liabilities of IFA and Nationwide in this instance were governed by the circumstances existing at the time of the accident. In that vein -- again by operation of law and not affected by subsequent conduct -- Nationwide must be viewed as a PIP carrier from which reimbursement may not be sought from another PIP carrier. We reject IFA's argument, which appears to be based on what IFA believes to be the inequitable application of the deemer statute as a shield. Such equitable principles have no application where purely legal rights are involved and legal questions are posed. See, e.g., Dunkin' Donuts of Am., Inc. v. Middletown Donut Corp., 100 N.J. 166, 183 (1985) (recognizing that "equity will generally conform to established rules and precedents, and will not change or unsettle rights that are created and defined by existing legal principles"); In re Estate of Shinn, 394 N.J. Super. 55, 68 (App. Div.) (observing that the "admonition that equity adhere to established legal principles applies most forcefully when the existing legal principle is in the form of either legislative regulation of the parties' rights or a legislative declaration of a public policy"), certif. denied, 192 N.J. 595 (2007). This argument, as well as any other arguments that might be discerned in IFA's brief, do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

1N.J.S.A. 17:28-1.4 states: "Any insurer . . . controlling or controlled by, or under common control by, or with, an insurer authorized to transact or transacting insurance business in this State, which sells a policy providing automobile or motor vehicle liability insurance coverage, or any similar coverage, in any other state . . ., shall include in each policy coverage to satisfy at least the [PIP] 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." Nationwide's organizational structure or relationship to other insurers has been recognized as meeting the attributes of an insurer within the meaning of the deemer statute. See Cupido v. Perez, 415 N.J. Super. 587, 589-93 (App. Div.), certif. denied, 205 N.J. 16 (2010); Phillips v. Phillips, 267 N.J. Super. 305, 308 n.4, 319 (App. Div. 1993); see also DiOrio v. Nationwide Mut. Ins. Co., 17 F.3d 657, 659 (3d Cir. 1994).

2Although factually different, our determination is guided by Liberty Mutual, supra, 385 N.J. Super. at 246. There, Liberty Mutual paid PIP benefits and sought reimbursement. The alleged tortfeasor was an Australian resident who had rented, in North Carolina, a vehicle from Hertz with the intent on driving it to New York; an accident in New Jersey with Liberty Mutual's insured intervened. 385 N.J. Super. at 242. In affirming the dismissal of Liberty Mutual's reimbursement action, we held that Hertz, as self-insured in this instance, was "in the same position as any PIP carrier and . . . not liable for reimbursement of PIP benefits paid by another carrier." Id. at 247.