Edward Zabilowicz v. Roslyne Kelsey

Annotate this Case

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
interests of brevity, portions of any opinion may not have been summarized).

Edward Zabilowicz v. Roslyne Kelsey (A-87-08)

Argued October 14, 2009 -- Decided December 17, 2009

ALBIN, J., writing for a unanimous Court.

The Court considers whether plaintiff Edward Zabilowicz, a Pennsylvania resident whose automobile insurance
carrier was authorized to do business in New Jersey, is bound by the limitation-on-lawsuit threshold and barred from
suing for noneconomic injuries caused by another Pennsylvania resident, defendant Roslyne Kelsey, who was not
insured by a carrier doing business in New Jersey and therefore was not entitled to New Jersey PIP benefits.

Zabilowicz filed a lawsuit in Atlantic County alleging that on October 18, 2005, Kelsey's automobile struck his
Chevy truck from behind while he was stopped in traffic at an intersection in Pleasantville, New Jersey. Zabilowicz
alleged that he suffered severe, permanent, and painful bodily injuries. Both Zabilowicz and Kelsey are residents of
Pennsylvania and are covered by automobile insurance policies written in that state. Plaintiff is insured by State
Farm Mutual Automobile Insurance Company, which is authorized to do business in New Jersey. Kelsey's
insurance carrier, Infinity, is not authorized to do business in New Jersey.

Kelsey moved for summary judgment, asserting that Zabilowicz's injuries did not satisfy the limitation-on-
lawsuit threshold and therefore he could not collect damages for pain and suffering. Zabilowicz conceded that his
injuries would not permit him to sue for noneconomic damages if the threshold applied. However, he argued that
the threshold can only be invoked by defendants who have been issued insurance policies by companies doing
business in New Jersey and are thus entitled to receive PIP benefits. The trial court determined that the limitation-
on-lawsuit threshold applied to Zabilowicz by reason of the Deemer Statute, N.J.S.A. 17:28-1.4. Because he did not
have a qualifying injury under N.J.S.A. 39:6A-8(a)(identifying six categories of injuries that vault the threshold), the
court granted the motion for summary judgment and dismissed Zabilowicz's personal injury action.

The Appellate Division affirmed in an unpublished decision. The Supreme Court granted Zabilowicz's petition
for certification.
198 N.J. 474 (2009).

HELD: In this automobile insurance case, under the plain language of N.J.S.A. 39:6A-8(a), the limitation-on-
lawsuit threshold can be invoked only by a defendant who is eligible to receive New Jersey PIP benefits. Because
the defendant's out-of-state insurance policy does not provide her with this State's PIP benefits, she is subject to suit
for noneconomic damages without restriction under that statute.

1. Under New Jersey's no-fault insurance system, owners of motor vehicles registered or principally garaged in
New Jersey have certain legal obligations. First, they must purchase standard, basic or special insurance coverage
for their automobile. Second, every policy must provide personal injury protection (PIP) benefits--the payment of
medical expenses to the insured and family household members who suffer bodily injury in an automobile accident.
Those medical benefits are paid without regard to who caused the accident ("no-fault insurance"). Third, New
Jersey policyholders, in exchange for lower premium payments, have the option of selecting the limitation-on-
lawsuit threshold, which restricts their right to sue for "noneconomic loss" if they are injured in an accident. Those
covered by the threshold may not sue a tortfeasor for noneconomic damages unless they suffer a serious or
permanent bodily injury, as defined in N.J.S.A. 39:6A-8(a). Under the same provision, a New Jersey policyholder
who chooses the threshold may sue for noneconomic damages if the tortfeasor is not a participant in this State's no-
fault system and therefore is not insured for PIP benefits. (Pp. 1-3)

2. N.J.S.A. 17:28-1.4, the Deemer Statute, and N.J.S.A. 39:6A-8(a) define when the limitation-on-lawsuit threshold
shall apply to an out-of-state plaintiff bringing a personal injury action arising from an automobile accident. To
interpret these enactments, the Court reads them in context with each other and with the overall legislative scheme

governing automobile insurance. The Court presumes that the Legislature intended the outcome dictated by the
statutes' clear language. (Pp. 6-8)

3. The Deemer Statute requires that insurers authorized to transact automobile insurance business in New Jersey
provide coverage to out-of-state residents consistent with New Jersey law whenever the automobile insured under
the policy is used or operated in this State. The required coverage includes liability insurance, uninsured motorist
insurance, and personal injury protection benefits. In addition, the Deemer Statute provides that the named insured
and the immediate family members "shall be subject to the tort option specified in subsection a. of [N.J.S.A. 39:6A-
8]." 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). Here, Zabilowicz is insured by a carrier transacting automobile insurance in New Jersey and therefore
is bound by the Deemer Statute. Because Kelsey is not insured by a carrier doing business in this State, she does not
fall within the sweep of the Deemer Statute and is not covered by the no-fault PIP provisions. The question before
the Court in this case is whether an out-of-state defendant not eligible for New Jersey PIP benefits can invoke the
limitation-on-lawsuit threshold against a plaintiff covered by the Deemer Statute. (Pp. 8-11)

4. N.J.S.A. 39:6A-8(a) states that a defendant who wishes to invoke the limitation-on-lawsuit threshold against a
plaintiff must demonstrate eligibility for no-fault PIP benefits under N.J.S.A. 39:6A-3.1, -3.3, or -3.4. Unless the
defendant meets this burden, the remainder of the statute does not apply, including the requirement that a plaintiff
prove that he or she sustained one of the six qualifying injuries. One of the rationales for the limitation-on-lawsuit
threshold is to offset the costs to insurers of a system that mandates the prompt payment of medical expenses
resulting from automobile accidents. An insurer of a defendant not participating in New Jersey's no-fault system is
not subject to the monetary quid pro quo that justifies making the threshold available to a PIP defendant. For that
reason, a defendant ineligible for PIP benefits cannot assert the threshold as a defense. (Pp. 11-13)

5. The plain language of the statutes makes clear that an out-of-state defendant who is not eligible to receive New
Jersey PIP benefits may be sued for pain and suffering damages without regard to the threshold. If the Legislature,
through the Deemer Statute, intended to restrict Zabilowicz's right to sue for pain and suffering caused by the
negligence of an out-of-state driver who is not part of New Jersey's PIP system, it could have drafted the statute to
achieve that result. Nothing in the legislative history conflicts with this finding. The quid pro quo presented to New
Jersey drivers under our no-fault system is no different for out-of-state residents insured by carriers doing business
in this State. Under the Deemer Statute, in exchange for prompt payment of medical bills, the out-of-state insured
gives up the unlimited right to sue for pain and suffering, provided that the defendant is eligible to receive New
Jersey PIP benefits. A defendant--such as the one here--who is not participating in New Jersey's no-fault system
does not receive the benefit of invoking the N.J.S.A. 39:6A-8(a) limitation-on-lawsuit as a defense. (Pp. 13-16)

6. A defendant who causes an automobile accident and is not eligible for PIP benefits cannot bind a plaintiff to the
limitation-on-lawsuit threshold set forth in N.J.S.A. 39:6A-8(a). Under the Deemer Statute, Zabilowicz could have
been subject to the limitation-on-lawsuit threshold because he had no qualifying injury under N.J.S.A. 39:6A-8(a).
In this case, however, he is not statutorily barred from recovering pain and suffering damages because Kelsey is
ineligible to collect New Jersey PIP benefits. (Pp. 16-17)

The grant of summary judgment in Kelsey's favor is REVERSED, and the matter is REMANDED to the trial
court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS join
in JUSTICE ALBIN's opinion. JUSTICE LONG did not participate.

SUPREME COURT OF NEW JERSEY
A-
87 September Term 2008

EDWARD ZABILOWICZ,

Plaintiff-Appellant,

ROSLYNE KELSEY,

Defendant-Respondent.

Argued October 14, 2009 Decided December 17, 2009

On certification to the Superior Court,
Appellate Division.

Frank N. DiMeo, Jr., argued the cause for
appellant (Rosen, Schafer & DiMeo,
attorneys).

Sanford D. Kaplan argued the cause for
respondent (Muscio & Kaplan, attorneys).

JUSTICE ALBIN delivered the opinion of the Court.

Under New Jersey's system of no-fault automobile insurance,

owners of motor vehicles registered or principally garaged in

New Jersey have certain legal obligations. First, they must

purchase standard, basic, or special insurance coverage for

N.J.S.A. 39:6B-1; see also Caviglia v. Royal
their automobiles.

Tours of Am.,
178 N.J. 460, 466 (2004). Second, every

automobile insurance policy must provide "personal injury

protection [(PIP)] benefits" -- the payment of medical expenses

to the insured and his family household members who suffer

bodily injury in an automobile accident. See N.J.S.A. 39:6A-4,

-3.1(a), -3.3(b)(1); see also Caviglia, supra,
178 N.J. at 466.

Those medical benefits are paid without regard to who caused the

accident, giving rise to the moniker "no-fault" insurance.

Caviglia, supra,
178 N.J. at 466; see also N.J.S.A. 39:6A-4.

Third, New Jersey policyholders -- in exchange for lower premium

payments -- have the option of selecting the limitation-on-

lawsuit threshold, which restricts their right to sue for

"noneconomic loss" if injured in an accident.1 DiProspero v.

Penn,
183 N.J. 477, 480-81 & n.1 (2005); see also N.J.S.A.

39:6A-8(a).

Those covered by the limitation-on-lawsuit threshold may

not sue a tortfeasor for noneconomic damages unless they suffer

a serious or permanent bodily injury, as defined in N.J.S.A.

39:6A-8(a) (identifying six categories of injuries that vault

DiProspero, supra, 183 N.J.
limitation-on-lawsuit threshold).

at 481, 497-98. Significantly, a New Jersey policyholder who

chooses the lawsuit threshold may nonetheless sue for

noneconomic damages if the tortfeasor is not a participant in

1
The lawsuit threshold applies to "the named insured and any
immediate family member residing in the named insured's
household." N.J.S.A. 39:6A-8.1(a). "`Noneconomic loss' means
pain, suffering and inconvenience." N.J.S.A. 39:6A-2(i).

this State's no-fault system and therefore is not insured for

PIP benefits. See N.J.S.A. 39:6A-8(a).

In this case, plaintiff, a Pennsylvania resident, while

driving a vehicle in New Jersey, was allegedly rear-ended by a

car operated by defendant, also a Pennsylvania resident.

Although both had automobile insurance, only plaintiff was

insured by a carrier authorized to do business in New Jersey.

N.J.S.A. 17:28-1.4 -- known as the "Deemer Statute" -- provides

benefits and burdens to out-of-state drivers insured by

companies authorized to do business in New Jersey.2 On the one

hand, such out-of-state drivers, like New Jersey policyholders,

receive PIP benefits on a no-fault basis under N.J.S.A. 39:6A-4;

on the other hand, they are subject to the limitation-on-lawsuit

threshold, as defined in N.J.S.A. 39:6A-8(a).

The issue before us is whether, pursuant to N.J.S.A. 17:28-

1.4, plaintiff is bound by the limitation-on-lawsuit threshold

when an out-of-state tortfeasor, such as defendant, is not

insured by a carrier doing business in New Jersey and therefore

2 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. Cf.
Whitaker v. DeVilla,
147 N.J. 341, 344 (1997); see also Gov't
Employees Ins. Co. v. Allstate Ins. Co.,
358 N.J. Super. 555,
560 (App. Div. 2003) ("[F]rom this consequence, the law acquired
the name by which it is commonly known, the [D]eemer
[S]tatute."); 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.").

is not entitled to New Jersey PIP benefits. The trial court

dismissed plaintiff's personal injury suit because he could not

prove a qualifying injury under N.J.S.A. 39:6A-8(a). The

Appellate Division affirmed.

We now reverse. Plaintiff is subject to all of the

provisions of N.J.S.A. 39:6A-8(a) pursuant to the Deemer

Statute. Under the plain language of N.J.S.A. 39:6A-8(a), the

limitation-on-lawsuit threshold can be invoked only by a

defendant who is eligible to receive New Jersey PIP benefits.

Because defendant's out-of-state insurance policy does not

provide her with this State's PIP benefits, she is subject to

suit for noneconomic damages without restriction under N.J.S.A.

39:6A-8(a).

Plaintiff Edward Zabilowicz filed a lawsuit in the Atlantic

County Superior Court, Law Division, alleging that on October

18, 2005, defendant Roslyne Kelsey's automobile struck his Chevy

truck from behind while he was stopped in traffic at an

intersection in Pleasantville, New Jersey. Plaintiff claims

that, as a result of defendant's negligence, he has "suffered

severe, permanent and painful bodily injuries."

Both plaintiff and defendant are residents of Pennsylvania

and are covered by automobile insurance policies written in that

state. Plaintiff is insured by State Farm Mutual Automobile

Insurance Company, which is authorized to do business in New

Jersey. Defendant's insurance carrier, Infinity, is not

authorized to do business in this State.

Defendant moved for summary judgment, asserting that

plaintiff's injuries did not satisfy the limitation-on-lawsuit

threshold and therefore plaintiff could not collect damages for

pain and suffering. Plaintiff responded that under the plain

terms of N.J.S.A. 39:6A-8(a), the limitation-on-lawsuit

threshold did not apply. He argued that the threshold can only

be invoked by defendants who have been issued insurance policies

by companies doing business in New Jersey and are thus entitled

to receive PIP benefits. Plaintiff conceded that his injuries

did not fall into any of the six categories in N.J.S.A. 39:6A-

8(a). Accordingly, plaintiff could not sue for noneconomic

damages if the threshold applied.

For purposes of the summary judgment motion, the parties

did not dispute any material facts. On the contested issue of

law, the court determined that the limitation-on-lawsuit

threshold applied to plaintiff by reason of the Deemer Statute.

Because plaintiff did not have a qualifying injury under

N.J.S.A. 39:6A-8(a) that allowed him to sue for pain and

suffering, the court granted summary judgment in favor of

defendant and dismissed plaintiff's personal injury action.3

In an unpublished per curiam opinion, the Appellate

Division affirmed the dismissal of the action. The panel also

concluded that "an out-of-state plaintiff insured by an

insurance company authorized to transact business in New Jersey

is subject to the New Jersey verbal threshold limitation under

the [D]eemer [S]tatute."4

We granted plaintiff's petition for certification.

Zabilowicz v. Kelsey,
198 N.J. 474 (2009).

II.

Plaintiff and defendant contest the interpretation of our

laws, not the facts of the case. We review the law de novo and

owe no deference to the trial court and Appellate Division if

they have wrongly interpreted a statute. M.S. v. Millburn

3
The payment of plaintiff's recoverable medical expenses is not
at issue. Those expenses, apparently, were paid by plaintiff's
insurance company.
4
We note that "verbal" threshold is used as a shorthand term to
describe the limitation-on-lawsuit threshold. The modern
"limitation on lawsuit" threshold was adopted as part of the
1998 Automobile Insurance Cost Reduction Act (AICRA). L. 1998,
c. 21, § 11. It replaced the older "verbal" threshold, which
required a plaintiff to show that her injuries met one of nine
statutory categories and that she had suffered a serious life
impact. See generally DiProspero, supra,
183 N.J. at 485-89
(discussing development of tort limitations in New Jersey
automobile insurance law).

Police Dep't,
197 N.J. 236, 246 n.10 (2008); Manalapan Realty,

L.P. v. Twp. Comm.,
140 N.J. 366, 378 (1995) ("A trial court's

interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special

deference.").

In deciding the issue before us, we must look to the

interrelationship between two statutes, N.J.S.A. 17:28-1.4, the

Deemer Statute, and N.J.S.A. 39:6A-8(a), which define when the

limitation-on-lawsuit threshold shall apply to an out-of-state

plaintiff bringing a personal injury action arising from an

automobile accident. Both statutes are part of New Jersey's

comprehensive scheme of no-fault automobile insurance.

We begin as we must with the plain language of the

statutes, mindful that the ordinary meaning and significance

given to the words chosen by the Legislature are generally the

best indicators of statutory intent. DiProspero, supra,
183 N.J. at 492. We must read the two applicable statutes in

context with each other and in context with the overall

legislative scheme governing automobile insurance. Ibid. It is

our purpose to give life to the statutory language, not to

"rewrite a plainly-written enactment of the Legislature." Ibid.

(citation omitted). Therefore, we will presume that the

Legislature intended the outcome dictated by the clear language

of the statute. Ibid. Only if the words of the enactment are

shrouded in ambiguity will we turn to other sources in search of

legislative intent. Id. at 492-93.

We first look to the specific language of the Deemer

N.J.S.A. 17:28-1.4 requires insurers authorized to
Statute.

transact automobile insurance business in New Jersey to provide

coverage to out-of-state residents consistent with New Jersey

law "whenever the automobile or motor vehicle insured under the

policy is used or operated in this State." Under the Deemer

Statute, those insurance companies must provide out-of-state

residents with liability insurance pursuant to N.J.S.A. 39:6B-1

or N.J.S.A. 39:6A-3, uninsured motorist insurance pursuant to

N.J.S.A. 17:28-1.1, and personal injury protection benefits

pursuant to N.J.S.A. 39:6A-4 or N.J.S.A. 17:28-1.3. In addition

to that mandated coverage, the Deemer Statute provides that the

named insured and his or her immediate family members "shall be

subject to the tort option specified in subsection a. of

[N.J.S.A. 39:6A-8]."
5 N.J.S.A. 17:28-1.4. In short, the Deemer

5
For purposes of our analysis, the relevant part of N.J.S.A.
17:28-1.4 reads:

In addition, any insurer authorized to
transact or transacting automobile or motor
vehicle insurance business in this State, or
controlling or controlled by, or under
common control by, or with, an insurer

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).6

authorized to transact or transacting
automobile or motor vehicle 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 or in any
province of Canada, shall include in each
policy coverage to satisfy at least the
liability insurance requirements of
[N.J.S.A. 39:6B-1(a)] or [N.J.S.A. 39:6A-3],
the uninsured motorist insurance
requirements of [N.J.S.A. 17:28-1.1(a)], and
personal injury protection benefits coverage
pursuant to [N.J.S.A. 39:6A-4] or of
[N.J.S.A. 17:28-1.3], whenever the
automobile or motor vehicle insured under
the policy is used or operated in this
State.

Any liability insurance policy subject to
this section shall be construed as providing
the coverage required herein, and any named
insured, and any immediate family member as
defined in [N.J.S.A. 39:6A-8.1], under that
policy, shall be subject to the tort option
specified in subsection a. of [N.J.S.A.
39:6A-8].
6
Extending this State's liability and no-fault insurance laws to
covered out-of-state drivers generates a real benefit to both
New Jersey residents injured by those drivers and medical
providers. Our injured residents can turn to an insurance
policy at least as generous as one that must be maintained by a
New Jersey driver. See Cynthia M. Craig & Daniel J. Pomeroy,
New Jersey Auto Insurance Law: No Fault (PIP), Uninsured &
Underinsured Motorists § 3:3 at 59 (2009). Additionally,
medical providers in this State tending to the injuries suffered
by the covered out-of-state driver are ensured that their

In Whitaker v. DeVilla, we upheld the constitutionality of

the Deemer Statute, which imposed the limitation-on-lawsuit

threshold on an out-of-state plaintiff.
147 N.J. 341, 355-58

(1997). We found that the Legislature, in an effort to contain

the rising cost of automobile insurance premiums, made a

constitutionally permissible policy determination by imposing

the limitation-on-lawsuit threshold on non-residents who are

injured in New Jersey and insured by carriers authorized to

Id. at 356-57. We
transact insurance business in this State.

noted that the limitation-on-lawsuit option is deemed to apply

even if a plaintiff has selected, and paid for, full tort

coverage in his out-of-state insurance policy. Id. at 355-56.

In Whitaker, the defendant/tortfeasor presumably was insured for

PIP benefits under N.J.S.A. 39:6A-4.

The Pennsylvania plaintiff in this case is insured by a

carrier transacting automobile insurance in New Jersey and

therefore is bound by the Deemer Statute. Because defendant is

not insured by a carrier doing business in this State, she does

not fall within the sweep of the Deemer Statute and is not

covered by the no-fault PIP provisions of N.J.S.A. 39:6A-4. We

medical bills will be paid to the extent of the applicable PIP
coverage. See Adams v. Keystone Ins. Co.,
264 N.J. Super. 367,
377-78 (App. Div. 1993) ("New Jersey has an interest in ensuring
that persons injured in this state receive prompt and proper
medical care and in assuring that the medical care facilities
and practitioners who provide such care will be paid.").

must address the issue that was not before the Whitaker Court --

whether an out-of-state defendant not eligible for New Jersey

PIP benefits can invoke the limitation-on-lawsuit threshold

against a plaintiff covered by the Deemer Statute.

We now turn to "the tort option specified in subsection a.

of [N.J.S.A. 39:6A-8]" that is applicable to plaintiff under the

Deemer Statute.

N.J.S.A. 39:6A-8 reads in relevant part:

a. Limitation on lawsuit option. Every
owner, registrant, operator or occupant of
an automobile to which [N.J.S.A. 39:6A-4],
personal injury protection coverage,
[N.J.S.A. 39:6A-3.1], medical expense
benefits coverage, or [N.J.S.A. 39:6A-3.3]
regardless of fault, applies, . . . is
hereby exempted from tort liability for
noneconomic loss to a person who is subject
to this subsection and who is either a
person who is required to maintain personal
injury protection coverage pursuant to
[N.J.S.A. 39:6A-4], medical expense benefits
pursuant to [N.J.S.A. 39:6A-3.1] or benefits
pursuant to [N.J.S.A. 39:6A-3.3], or is a
person who has a right to receive benefits
under [N.J.S.A. 39:6A-4], [N.J.S.A. 39:6A-
3.1] or [N.J.S.A. 39:6A-3.3], as a result of
bodily injury, arising out of the ownership,
operation, maintenance or use of such
automobile in this State, unless that person
has sustained a bodily injury which results
in death; dismemberment; significant
disfigurement or significant scarring;
displaced fractures; loss of a fetus; or a
permanent injury within a reasonable degree

of medical probability, other than scarring
or disfigurement.

[N.J.S.A. 39:6A-8(a) (emphasis added).]7

By the clear language of the statute, a defendant who

wishes to invoke the limitation-on-lawsuit threshold against a

plaintiff must demonstrate that she is eligible for no-fault PIP

benefits under either N.J.S.A. 39:6A-3.1, -3.3, or -3.4. Unless

the defendant meets this initial burden, the remainder of the

statute does not apply. Therefore, a defendant without a

statutory entitlement to PIP benefits cannot insist that an

injured plaintiff prove a qualifying injury within one of the

six categories set forth in N.J.S.A. 39:6A-8(a), even though the

plaintiff is otherwise bound by the limitation-on-lawsuit

threshold.

One of the rationales for the limitation-on-lawsuit

threshold "[is] to offset the costs to insurers of a system that

mandates the prompt payment of medical expenses resulting from

See Cynthia M. Craig & Daniel J.
automobile accidents."

Pomeroy, New Jersey Auto Insurance Law: No Fault (PIP),

Uninsured & Underinsured Motorists § 15:3-3 at 278 (2009). An

insurer of a defendant not participating in New Jersey's no-

7
PIP benefits triggering the threshold include those provided by
the "standard," N.J.S.A. 39:6A-4, "basic," N.J.S.A. 39:6A-3.1,
and "special," N.J.S.A. 39:6A-3.3, automobile policies allowed
by statute.

fault system is not "subject to the monetary quid pro quo that

justifies making the [limitation-on-lawsuit] threshold available

to a PIP-eligible defendant." Ibid. It is for that reason that

a defendant ineligible for PIP benefits cannot assert the

limitation-on-lawsuit threshold as a defense. Ibid.

Defendant would have the Court read out of N.J.S.A. 39:6A-

8(a) the requirement that she must be eligible for New Jersey

PIP coverage to benefit from the limitation-on-lawsuit

threshold. The critical language of the Deemer Statute,

however, makes plaintiff, as a covered out-of-state driver,

"subject to the tort option specified in subsection a. of

[N.J.S.A. 39:6A-8]." This reference to N.J.S.A. 39:6A-8(a) does

not suggest that one part of the statute shall apply and another

not. We cannot read just half of N.J.S.A. 39:6A-8(a) when the

Deemer Statute pointedly references the entirety of subsection

(a). We must read the statute as a whole, giving meaning to

See DiProspero, supra,
183 N.J. at 492.
each of its parts.

Simply stated, an out-of-state defendant who is not eligible to

receive New Jersey PIP benefits cannot find shelter under

N.J.S.A. 39:6A-8(a) and may be sued for pain and suffering

damages without regard to the threshold. Loftus-Smith v. Henry,

286 N.J. Super. 477, 487 (App. Div. 1996).

As indicated earlier, we will not rewrite a plainly written

statute or remove a statutory qualification included within a

comprehensive legislative scheme. If the Legislature, through

the Deemer Statute, intended to restrict plaintiff's right to

sue for pain and suffering caused by the negligence of an out-

of-state driver who is not part of New Jersey's PIP system, then

the wording of N.J.S.A. 17:28-1.4 would simply read that

plaintiff is "subject to the requirement of proving an injury

falling into one of the six categories set forth in N.J.S.A.

39:6A-8(a)." The Legislature knows how to draft a statute to

achieve that result when it wishes to do so. For example, an

automobile accident victim seeking to recover noneconomic

damages from the Unsatisfied Claim and Judgment Fund must show

that the injured person "sustained an injury described in

[N.J.S.A. 39:6A-8(a)]." N.J.S.A. 39:6-70(n) (emphasis added);

see generally Jimenez v. Baglieri,
152 N.J. 337 (1998). Unlike

the Deemer Statute, which incorporates by reference all of

N.J.S.A. 39:6A-8(a), N.J.S.A. 39:6-70(n) instead directs the

inquiry specifically to an injury qualifying under N.J.S.A.

39:6A-8(a).8

8
We decline defendant's invitation to pass judgment on Stamps v.
New Jersey Automobile Full Insurance Underwriting Ass'n,
279 N.J. Super. 485 (App. Div.), certif. denied,
141 N.J. 96 (1995).
That case involved a plaintiff's uninsured motorist coverage
claim against her carrier under N.J.S.A. 17:28-1.1(a) for
recovery of noneconomic damages resulting from a collision with

Nothing in the legislative history concerning the Deemer

Statute and N.J.S.A. 39:6A-8(a) conflicts with our plain reading

of those statutes. Moreover, the quid pro quo presented to New

Jersey drivers under our no-fault system is no different for

out-of-state residents insured by carriers doing business in

this State. Under the Deemer Statute, in exchange for prompt

payment of medical bills, the out-of-state insured gives up the

unlimited right to sue for pain and suffering, provided that the

defendant is eligible to receive New Jersey PIP benefits. A

defendant -- such as the one here -- who is not participating in

New Jersey's no-fault system does not receive the benefit of

invoking the N.J.S.A. 39:6A-8(a) limitation-on-lawsuit threshold

as a defense.

Defendant is not disadvantaged under this statutory scheme.

The Deemer Statute does not impose the limitation-on-lawsuit

threshold on non-residents who are "insured by carriers not

an uninsured truck. Id. at 486. The Appellate Division found
that the plaintiff, who had selected the threshold, had to show
a qualifying injury. Id. at 489. The Stamps court concluded
that "the application of the verbal threshold to an injured
party's claim against his or her own insurance carrier for
uninsured motorists benefits is significantly different from its
application to a negligence claim against an alleged
tortfeasor." Id. at 488. Stamps implicated a different statute
and other policy considerations. The present case is not the
appropriate vehicle for reviewing Stamps.

authorized to transact business in New Jersey." Whitaker,

supra,
147 N.J. at 356; see also Comitale v. Masters,
302 N.J.

Super. 291, 295 (App. Div. 1997) (holding that threshold did not

apply to out-of-state plaintiff not covered by Deemer Statute).

That is because those non-resident insureds, if injured in an

automobile accident in this State, "would not receive the

benefit of New Jersey's minimum mandatory liability coverage,

uninsured motorist coverage, or personal injury protection

coverage that the [D]eemer [S]tatute mandates for non-residents

insured through New Jersey authorized insurers." Whitaker,

supra,
147 N.J. at 356.

Defendant's problem is not the Deemer Statute, but the fact

that she is not participating in New Jersey's no-fault system.

Had a New Jersey resident, rather than plaintiff, selected the

insurance policy's limitation-on-lawsuit option, and were

defendant the tortfeasor, defendant would be in the same

position. She could not invoke the threshold as a defense

because she is not participating in New Jersey's no-fault system

of PIP benefits.

III.

A defendant who causes an automobile accident and is not

eligible for PIP benefits cannot bind a plaintiff to the

limitation-on-lawsuit threshold set forth in N.J.S.A 39:6A-8(a).

Under the Deemer Statute, plaintiff could have been subject to

the limitation-on-lawsuit threshold because he had no qualifying

injury under N.J.S.A 39:6A-8(a). In this case, however,

plaintiff is not statutorily barred from recovering pain and

suffering damages because defendant is ineligible to collect New

Jersey PIP benefits.9 We reverse the grant of summary judgment

in defendant's favor and remand to the trial court for

proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE,
HOENS, and RIVERA-SOTO join in JUSTICE ALBIN's opinion. JUSTICE
LONG did not participate.

9
We note that plaintiff selected the limited tort option under
his Pennsylvania policy. We express no opinion on the
application of that contractual provision in this case.

SUPREME COURT OF NEW JERSEY

NO. A-87 SEPTEMBER TERM 2008

ON CERTIFICATION TO Appellate Division, Superior Court

EDWARD ZABILOWICZ,

Plaintiff-Appellant,

ROSLYNE KELSEY,

Defendant-Respondent.

DECIDED December 17, 2009
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
------------------------ -----------------------
JUSTICE LONG
X
JUSTICE LaVECCHIA
X
JUSTICE ALBIN
X
JUSTICE WALLACE
X
JUSTICE RIVERA-SOTO
X
JUSTICE HOENS
TOTALS 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.