Felix v. Richards

Annotate this Case

Guerline Felix’s vehicle collided with Brian Richards’ vehicle in New Jersey. Richards was insured under a New Jersey automobile insurance policy issued by AAA Mid-Atlantic Insurance Company (AAA). The policy provided bodily injury (BI) liability coverage, as well as uninsured and underinsured motorist (UM/UIM) coverage. Felix was insured by the Government Employee Insurance Company (GEICO) under a policy written in Florida. That policy provided up to $10,000 in property liability and personal injury protection (PIP) benefits, but it did not provide any BI liability. Felix sued Richards for personal injuries, and, in a separate action, Richards sued Felix and AAA for personal injuries. AAA then filed a third-party complaint against GEICO, claiming that GEICO’s policy was automatically deemed to include $15,000/$30,000 in BI coverage and that payment would eliminate the claim for UM/UIM coverage by AAA. The motion court determined that the New Jersey "deemer" statute applied to GEICO’s policy, rejecting the argument that the statute created a carve-out for BI coverage based upon the basic policy, as well as GEICO’s constitutional challenge. The Appellate Division affirmed, and the New Jersey Supreme Court granted the petition for certification filed by GEICO. The Supreme Court concluded after review that the deemer statute did not incorporate by reference the basic policy’s BI level for insurers, like GEICO, to which the second sentence of N.J.S.A. 17:28-1.4 applied. From the perspective of the insurers’ obligation, the required compulsory insurance liability limits remained $15,000/$30,000. As to the equal protection claim, New Jersey insureds were the ones who had a choice to purchase less than the presumptive minimum BI amount. The obligation of in-state insurers to offer and provide that minimum was the same as the obligation imposed under the deemer statute’s second sentence on authorized insurers writing an out-of-state policy. "The equal protection claim therefore falls flat," and the Appellate Division's judgment was affirmed.

SYLLABUS

This syllabus is not part of the Court’s opinion. 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
Court. In the interest of brevity, portions of an opinion may not have been summarized.

Guerline Felix v. Brian V. Richards (A-27-18) (081799)

Argued September 24, 2019 -- Decided February 26, 2020

LaVECCHIA, J., writing for the Court.

Under New Jersey’s so-called “deemer” statute, N.J.S.A. 17:28-1.4, out-of-state
motor vehicle insurance policies have been deemed to guarantee the same $15,000 per
person/$30,000 per accident bodily injury (BI) liability insurance coverage required
under New Jersey’s standard policy. Since the enactment of the deemer statute, the
Legislature has created two alternate forms of lesser insurance coverage -- coverage that
does not automatically include BI: the basic policy and the special policy, both of which
satisfy New Jersey’s compulsory insurance requirements. In this case, the Court
considers whether the later enactment of the basic policy has fundamentally altered the
requirements of the deemer statute, such that the amount deemed to be covered by out-of-
state policies has been reduced from previously required amounts -- namely
$15,000/$30,000 in compulsory minimum BI liability -- to the level of the basic policy,
which would mean that BI coverage would no longer be required. The Court also
considers the argument that a contrary reading would create an equal protection violation.

Felix sued Richards for personal injuries, and, in a separate action, Richards sued
Felix and AAA for personal injuries. AAA then filed a third-party complaint against
GEICO, claiming that GEICO’s policy was automatically deemed to include
$15,000/$30,000 in BI coverage and that payment would eliminate the claim for
UM/UIM coverage by AAA. The motion court determined that the deemer statute
applied to GEICO’s policy, rejecting the argument that the statute creates a carve-out for
BI coverage based upon the basic policy, as well as GEICO’s constitutional challenge.
The Appellate Division affirmed, and the Court granted the petition for certification filed
by GEICO. 236 N.J. 117 (2018).
1
HELD: The deemer statute does not incorporate by reference the basic policy’s BI level
for insurers, like GEICO, to which the second sentence of N.J.S.A. 17:28-1.4 applies.
From the perspective of the insurers’ obligation, the required compulsory insurance
liability limits remain $15,000/$30,000. As to the equal protection claim, New Jersey
insureds are the ones who have a choice to purchase less than the presumptive minimum
BI amount. The obligation of in-state insurers to offer and provide that minimum is the
same as the obligation imposed under the deemer statute’s second sentence on authorized
insurers writing an out-of-state policy. The equal protection claim therefore falls flat.

1. The deemer statute, N.J.S.A. 17:28-1.4, achieved its present form in 1998, when the
Legislature added in the first sentence an express reference to N.J.S.A. 39:6A-3.1, which
sets forth requirements for a basic policy. In the second sentence of the deemer statute,
the Legislature inserted the words “subsection a” before the citation to N.J.S.A. 39:6B-1;
N.J.S.A. 39:6B-1(a) contains the compulsory requirements for BI liability for motor
vehicles. The Legislature did not add any mention of the basic policy or its lack of any
BI required coverage to the second sentence, which GEICO agrees covers the category of
insurer into which it falls. Context is important. The second sentence of the deemer
statute employs words that convey a presumed requirement of some minimum BI liability
coverage: “shall . . . satisfy at least.” Moreover, the legislative insertion of “subsection
a.” must be regarded as intentional and meaningful to the Legislature. The plain
language leads to one clear conclusion. The basic policy was added as a standard for
insurers covered by the deemer statute’s first sentence, but the basic policy’s BI limits do
not apply to insurers governed by the deemer statute’s second sentence. (pp. 13-17)

2. The legislative history of the deemer statute aligns with the result compelled by its
plain language. That history reveals an intent to lessen the regulatory burden only on
insurers who have the most attenuated connection to motor vehicle insurance business in
New Jersey -- those governed by the first sentence of the deemer statute. For insurers
governed by the statute’s second sentence, like GEICO, the Legislature has never
lessened their obligation to provide, or be deemed as providing, compulsory minimum
liability coverage. The Legislature reaffirmed its commitment to BI coverage in the
second sentence by its additional reference to subsection a. of N.J.S.A. 39:6B-1. And the
second sentence’s reference to N.J.S.A. 39:6A-3 does not establish that the Legislature
implicitly intended to convert the entire second sentence’s BI requirements to the
equivalent of a basic policy. First, that reference was meant to ensure that the statute
encompasses both automobiles and motor vehicles. Further, it defies logic and sensibility
that by retaining the reference to N.J.S.A. 39:6A-3, the Legislature intended to make so
large scale a change to the deemer statute’s second sentence when, at the same time, the
Legislature knew how to and did incorporate an explicit reference to the basic policy in
the first sentence. And, last, if the compulsory insurance obligations of insurers has
dropped to the basic policy’s BI floor, it would render the “shall . . . satisfy at least”
language of the deemer statute’s second sentence nonsensical. The fact that the
Legislature now permits New Jersey insureds to accept zero BI coverage does not alter
2
what remains the compulsory minimum BI liability coverage amounts that insurers
writing in New Jersey must provide. That principle was recognized shortly after the 1998
changes, and the Legislature has never corrected that interpretation. (pp. 17-23)

3. The Court applies the rational basis test to GEICO’s equal protection challenge to this
economic legislation. Comparing a New Jersey authorized insurer that writes in New
Jersey to another New Jersey authorized insurer that writes in New Jersey and also writes
in other states, the equal protection claim falls flat. The insurers are treated the same with
respect to the duty to provide minimum compulsory insurance coverage limits. There is
no discriminatory classification. New Jersey insureds are the ones who have a choice to
purchase less than the presumptive minimum amount that must be offered by all insurers
authorized to transact automobile insurance business in this State. The obligation of in-
state insurers to offer and provide that minimum is the same as the obligation imposed
under the deemer statute’s second sentence on authorized insurers writing an out-of-state
policy. For those out-of-state policies, the Legislature has made the policy choice to stick
with the compulsory minimum limits. That choice -- to be more protective of the
Unsatisfied Claim and Judgment Fund from claims caused by out-of-state insured
tortfeasors who may have no access to BI insurance coverage than from a claim caused
by a New Jersey tortfeasor having only a basic policy -- is not an irrational policy choice.
(pp. 24-28)

4. Any argument that relies on a claimed disparity for the out-of-state insured is
misplaced in this appeal because there is no insured to advance such a claim and because
a proper record has not been presented. The Court notes, however, that in the past, the
legislative decision to treat in-state and out-of-state insureds differently in terms of the
scope of their choice of coverage has not been deemed irrational. (pp. 28-30)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE FERNANDEZ-VINA, dissenting, expresses the view that, under the
deemer statute, an insurer’s out-of-state policies must include 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 and that,
because both statutes can be satisfied by policies that carry no BI coverage, GEICO
fulfilled its duty. Requiring GEICO to reform its policy would constitute a violation of
the Equal Protection Clause of the Fourteenth Amendment, Justice Fernandez-Vina notes,
because New Jersey insureds are not required to have BI coverage themselves and
requiring out-of-state insurers to provide more coverage when their insureds enter the
state distinguishes unconstitutionally between in-state and out-of-state drivers.

CHIEF JUSTICE RABNER and JUSTICE ALBIN join in JUSTICE
LaVECCHIA’s opinion. JUSTICE FERNANDEZ-VINA filed a dissent, in which
JUSTICE SOLOMON joins. JUSTICES PATTERSON and TIMPONE did not
participate.
3
SUPREME COURT OF NEW JERSEY
A-
27 September Term 2018
081799

Guerline Felix,

Plaintiff,

Brian V. Richards,

Defendant.

Brian V. Richards and Kassandria Richards,
His Wife Per Quod,

Plaintiffs,

Guerline Felix, Mid-Atlantic
Insurance Company of New Jersey,

Defendants,

and

AAA Mid-Atlantic Insurance Company,

Third-Party Plaintiff-Respondent,

GEICO Indemnity Company,

Third-Party Defendant-Appellant.

1
On certification to the Superior Court,
Appellate Division.

Argued Decided
September 24, 2019 February 26, 2020

Eric G. Siegel argued the cause for appellant (McElroy,
Deutsch, Mulvaney & Carpenter, attorneys; Michael J.
Marone and Richard J. Williams, Jr., of counsel and on
the briefs, and Eric G. Siegel, on the briefs).

Sanford D. Kaplan argued the cause for respondent
(Muscio, Kaplan & Helfrich, attorneys; Sanford D.
Kaplan, on the brief).

Eric S. Poe argued the cause for amicus curiae Citizens
United Reciprocal Exchange (Eric S. Poe, attorneys; Eric
S. Poe, of counsel and on the brief, and Abbey True
Harris, on the brief).

John E. Molinari argued the cause for amicus curiae New
Jersey Association for Justice (Blume Forte Fried Zerres
& Molinari, attorneys; John E. Molinari, on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

Automobile insurance is compulsory in New Jersey. All owners of

automobiles registered or principally garaged in New Jersey are required to

insure their vehicles for minimum amounts of liability insurance coverage and

personal injury protection. See Caviglia v. Royal Tours of Am., 178 N.J. 460

(2004) (generally discussing New Jersey’s compulsory insurance framework).

2
Insurers authorized to do business in New Jersey and writing policies for

such vehicles must comply with compulsory insurance coverage limits. See

N.J.S.A. 39:6A-3, -4. The Legislature established a standard policy setting the

minimal compulsory coverages that an insurer must offer and provide to

insureds in New Jersey. Under the standard policy, the insurer must provide

the insured with, in pertinent part, at least $15,000 per person/$30,000 per

accident in bodily injury liability insurance coverage (BI).

No insurer is forced to write in New Jersey, but for the privilege of

doing so, an insurer is bound by the laws in this state. One demand placed on

insurers that choose to do insurance business in New Jersey concerns the

policies written by such insurers for insureds in other states. That demand is

effectuated through New Jersey’s so-called “deemer” statute, N.J.S.A. 17:28-

1.4, which lies at the heart of this appeal. The deemer statute’s purpose,

generally stated, is to ensure that New Jersey residents injured as a result of an

accident with an out-of-state vehicle will have recourse to policies of insurance

that are at least as broad as the presumptive minimal limits of a New Jersey

insurance policy. See generally Craig & Pomeroy, N.J. Auto Insurance Law

§ 3.3 (2019). In other words, regardless of the actual terms of out-of-state

policies, those policies have been deemed to guarantee the same $15,000 per

person/$30,000 per accident BI that New Jersey policies have had to offer.

3
Since the enactment of the deemer statute, the Legislature has created

two alternate forms of lesser insurance coverage -- coverage that does not

automatically include BI. One is the basic policy, created in 1998 as part of

the Automobile Insurance Cost Reduction Act (AICRA), L. 1998, cc. 21 and

22, which carries no BI unless an optional $10,000 amount is selected. See

N.J.S.A. 39:6A-3.1. The other is the special policy, created in 2003, which has

an income eligibility requirement for participation and no optional BI. See

N.J.S.A. 39:6A-3.3. Eligible insureds may satisfy New Jersey’s insurance law

requirements by purchasing basic or special policies.

In this case, an insurer argues that the later enactment of the basic policy

has fundamentally altered the requirements of the deemer statute. Because the

basic policy carries no BI requirement, the argument goes, the amount deemed

to be covered by out-of-state policies has been reduced from previously

required amounts -- namely $15,000/$30,000 in compulsory minimum BI

liability -- to the level of the basic policy. If correct in its argument, the

insurer would have no obligation to provide any BI because the basic policy

does not contain any minimally required BI.

The trial court rejected that argument and the Appellate Division

affirmed. We agree with those determinations and affirm the Appellate

Division judgment in all respects.

4
The plain language of the deemer statute does not support the

interpretation being advanced; in fact, amendments to the deemer statute

reveal a distinct legislative effort to avoid that result. The Legislature knew

how to, and did elsewhere, make an explicit reference to basic policy

standards. It did not do so here for BI, and importing the basic policy’s

requirement into the deemer statute would subvert the Legislature’s carefully

crafted insurance scheme.

The insurer’s fallback claim of an equal protection violation is equally

unavailing. Every insurer that writes in New Jersey accepts the law of New

Jersey. And all such insurers are treated equally under our law’s obligation to

provide the minimal amount of BI coverage that our compulsory insurance law

requires. Through the deemer statute, in-state insurers writing policies in New

Jersey and insurers that write in New Jersey and in other states must both offer

insureds the minimum compulsory level of BI liability coverage of

$15,000/$30,000 per person/per accident.

The fact that the Legislature now gives New Jersey resident insureds a

choice to purchase a lesser amount of liability coverage to drive lawfully on

the roadways of this state does not alter the compulsory obligation of both

categories of insurers to offer and provide the same default minimum level of

coverage. The insurers are treated uniformly. From the perspective of an

5
insurer, this appeal presents no viable equal protection violation caused by the

deemer statute.

We also reject any attempt by the insurer to assert an equal protection

claim from the perspective of the insured. That said, we do note that, as a

result of application of our deemer statute in this case, the out-of-state insured

is receiving a benefit: with respect to this accident that took place in New

Jersey, the insured is receiving more liability protection than she would have if

the accident occurred in Florida where her policy was written.

But there is no insured advancing a claim here. Hence, any discussion

about the statute’s impact on an insured is misplaced and speculative. Not

only do we not have a proper party advancing an equal protection claim from

an insured’s position, we have no record for an insured’s claim. We could

only speculate about what insureds are told in other states about their options

regarding BI liability coverage and whether there is any rating impact that

would be discernible and significant as a result of the operation of the deemer

statute as construed. We do not decide cases based on speculation.

In short, there is no actionable equal protection claim here, and there is

thus no constitutional basis to depart from the result reached by a plain-

language interpretation of the statutory scheme in question.

6
I.

This appeal involves a pure question of law. The facts aid primarily in

understanding the relationship of the parties. The individuals involved in the

accident that led to the underlying lawsuit have settled. The party in interest in

this appeal is the Government Employee Insurance Company (GEICO) -- an

insurer that writes automobile insurance policies in New Jersey and in other

states -- which seeks to avoid operation of the deemer statute to a policy it

wrote for an insured in Florida.

In September 2013, Guerline Felix’s vehicle collided with Brian

Richards’ vehicle in Newark, New Jersey. At the time, Richards was insured

under a New Jersey automobile insurance policy issued by AAA Mid -Atlantic

Insurance Company (AAA). The policy provided BI liability coverage, as well

as uninsured and underinsured motorist (UM/UIM) coverage in the amount of

$15,000 per person and $30,000 per accident. Felix was insured by GEICO

under a policy written in Florida. That policy provided up to $10,000 in

property liability and personal injury protection (PIP) benefits, but it did not

provide any BI liability.

Felix sued Richards for personal injuries, and, in a separate action,

Richards sued Felix and AAA for personal injuries. GEICO declined to defend

Felix in the suit filed by Richards because its policy did not provide BI

7
coverage. AAA then filed a third-party complaint against GEICO. AAA

claimed that it had no obligation to provide UM or UIM coverage to Richards

because, pursuant to the deemer statute, GEICO’s policy was automatically

deemed to include $15,000/$30,000 in BI coverage and that payment would

eliminate the claim for UM/UIM coverage by AAA.

In the Law Division, the matter proceeded on motions for summary

judgment filed by AAA and GEICO. The motion court determined that the

deemer statute applied to GEICO’s policy, rejecting the argument that the

statute creates a carve-out for BI coverage in this circumstance based upon the

BI standard for the basic policy in New Jersey. The court held that GEICO

was “required to conform to the statutorily mandated minimum of $15,000 per

person, $30,000 per accident in [BI] coverage” and, further, granted AAA’s

summary judgment motion, concluding that because the deemer statute

applied, AAA’s “UM/UIM coverage . . . is equal to the [BI] liability coverage

under the reformed GEICO policy and, accordingly, plaintiff is not entitled to

receive the UM/UIM [coverage] from AAA.” The motion court also rejected

GEICO’s constitutional challenge, citing prior law.

The Appellate Division affirmed. It rejected GEICO’s argument that, by

enacting AICRA and, among other things, creating for New Jersey insureds the

option to select a basic policy option with no BI coverage, the Legislature

8
intended to modify the deemer statute “to require no BI coverage for

automobiles to which the statute would otherwise apply.” After examination

of the statute’s plain language, as well as a historical review of legislative

revisions to the deemer statute, the appellate court concluded that “[s]hould the

Legislature have intended a change in the [d]eemer statute, as argued by

GEICO, it could have said so expressly.” The court held that “the plain

language of the [d]eemer statute requires GECIO’s policy here to be reformed

to include BI coverage in the amount of $15,000/$30,000.” The court also

found meritless GEICO’s equal protection challenge, explaining that “all

insurers writing policies in New Jersey are treated uniformly; it’s the consumer

who has the option to purchase more affordable coverage.”

We granted the petition for certification filed by GEICO. 236 N.J. 117

(2018). We also granted amicus curiae status to the New Jersey Association

for Justice (NJAJ) and to Citizens United Reciprocal Exchange (CURE).

II.

According to GEICO, the deemer statute’s second sentence, which

GEICO agrees covers the category of insurer into which it falls, incorporates

by reference the BI requirement, or more accurately the lack of any BI

coverage, applicable in the basic policy. GEICO relies on the sentence’s

language that requires such insurers to include in the out-of-state policy

9
“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].” GEICO then points to N.J.S.A. 39:6A-3,

which now states that, “[e]xcept as provided by [N.J.S.A. 39:6A-3.1],” (the

statute authorizing creation of a basic policy), the compulsory

$15,000/$30,000 liability limits apply. According to GEICO, the excepting

language of N.J.S.A. 39:6A-3 has been incorporated by reference into the

deemer statute’s requirements, and, thus, the basic policy now eliminates BI

requirements from the deemer statute’s list of required coverages. GEICO

concludes that its out-of-state policy, which like the basic policy has no BI

coverage, satisfies the liability insurance requirement of N.J.S.A. 39:6A-3 and

therefore satisfies the deemer statute.

CURE aligns itself with GEICO’s position that the Florida policy should

not be deemed to require BI coverage of $15,000/$30,000. CURE urges us to

view the basic policy as the new general standard for compulsory liability

insurance.

AAA disputes that the deemer statute incorporates by reference the basic

policy. It notes that the second sentence of the deemer statute does not refer to

the basic policy; rather, it identifies the two statutes that establish the

compulsory minimum BI coverage required to be provided by insurers to

insureds under New Jersey’s standard policy of insurance: N.J.S.A. 39:6B-

10
1(a) and 39:6A-3. Thus, AAA maintains that, when the deemer statute applies,

the default coverage required of out-of-state policies includes BI coverage of

$15,000/$30,000.

NJAJ offers two arguments in support of AAA’s position. First, it points

to the first sentence, where “the legislature demonstrates a clear understanding

of the existence of the 'basic’ policy” and expressly included it, while “[i]n the

second sentence dealing with liability . . . it did not.” Second, with respect to

the second sentence pertinent here, NJAJ observes that the deemer statute

requires insurers “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].” NJAJ notes that N.J.S.A.

39:6B-1(a) refers to “motor vehicles” and N.J.S.A. 39:6A-3 refers to

automobiles. It explains that the Legislature has always cited both statutes to

clearly establish that the deemer statute reaches both passenger automobiles

and other types of motor vehicles and argues that the reference to the two

statutes does not suggest that there are two different and conflicting standards.

According to NJAJ, that is so because the Legislature particularly underscored

the BI requirement by adding the reference to subsection a. for the motor

vehicle statute citation, which contains no reference to the basic policy, unlike

section b. of that statute.

11
In addition to textual arguments, GEICO, AAA, and the amici include

arguments on why their interpretation advances their perception of the

legislative intent underlying the deemer statute.

III.

With a question of statutory construction, we begin with the language of

the statute as the surest indicator of legislative intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005) (“The Legislature’s intent is the paramount goal when

interpreting a statute and, generally, the best indicator of that intent is the

statutory language.”). If the language admits of only one clear interpretation,

the interpretative task can come to an end and we enforce that meaning. State

v. Reiner, 180 N.J. 307, 311 (2004).

The parties agree it is the second sentence of the first paragraph of the

deemer statute that applies in this matter because GEICO, an insurer that

writes automobile policies in New Jersey, wrote the policy at issue for its out -

of-state insured in Florida. What the parties dispute is whether an insurer has

met its duty under that sentence when the out-of-state policy has no BI

coverage. We apply traditional principles of statutory construction to that key

text.

12
A.

Here, a plain language construction points compellingly in favor of

concluding that the basic policy’s BI level was not incorporated by reference

into the second sentence of the deemer statute.

First enacted in 1985, the deemer statute achieved its present form when

it was amended in 1998 through the enactment of AICRA. L. 1998, cc. 21, 22.

Two key changes accomplished by that amendment warrant particular

attention. In the first sentence, the Legislature added the express reference to

N.J.S.A. 39:6A-3.1 and its requirements for a basic policy. That first sentence

now reads:

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 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 or in any province of Canada, shall include
in each policy coverage to satisfy at least the personal
injury protection benefits coverage pursuant to section
4 of L. 1972, c. 70 ([ N.J.S.A.] 39:6A-4) or section 19
of L. 1983, c. 362 ([ N.J.S.A.] 17:28-1.3) for any New
Jersey resident who is not required to maintain personal
injury protection coverage pursuant to section 4 of L.
1972, c. 70 ([ N.J.S.A.] 39:6A-4) or section 4 of L.
1998, c. 21 ([ N.J.S.A.] 39:6A-3.1) and who is not
otherwise eligible for such benefits, whenever the

13
automobile or motor vehicle insured under the policy is
used or operated in this State.

[N.J.S.A. 17:28-1.4.]

In the second sentence of the deemer statute, the Legislature inserted the

words “subsection a” before “section 1 of L. 1972, c. 197 ([ N.J.S.A.] 39:6B-

1),” which contains the compulsory requirements for BI liability for motor

vehicles. That sentence now states:

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
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 subsection a. of
section 1 of L. 1972, c. 197 ([ N.J.S.A.] 39:6B-1) or
section 3 of L. 1972, c. 70 ([ N.J.S.A.] 39:6A-3), the
uninsured motorist insurance requirements of
subsection a. of section 2 of L. 1968, c. 385 ([N.J.S.A.]
17:28-1.1), and personal injury protection benefits
coverage pursuant to section 4 of L. 1972, c. 70
([ N.J.S.A.]39:6A-4) or of section 19 of L. 1983, c. 362
([ 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.

[N.J.S.A. 17:28-1.4.]

14
The AICRA amendment to the first sentence -- added at the same time as

the creation of the basic policy -- made express reference to the basic policy

and thus clearly made that category of out-of-state insurers subject to the basic

policy requirements for PIP coverage. That legislative change to the first

sentence also implicitly acknowledged that there was no BI liability obligation

imposed on those insurers; there is no mention of any liability requirement.

Thus, in clear directory language, the first sentence further reduced the

obligation imposed on that category of insurer by setting it to the basic

policy’s PIP coverage. Where the Legislature meant to incorporate a basic

policy level of required coverage, it knew how to do so and did it.

The amendments to the second sentence did nothing similar for the

category of insurer it covers. In the second sentence, the Legislature did not

add any mention of the basic policy with its lack of any BI required coverage.

Context is important. The second sentence of the deemer statute

employs words that convey a presumed requirement of some minimum BI

liability coverage. In addressing insurers that write automobile insurance in

New Jersey and that also write automobile insurance policies in other states or

Canada, the legislation states that such insurers’ out-of-state policies must

“satisfy at least the liability requirements of subsection a. of section 1 of L.

1972, c. 197 ([ N.J.S.A.] 39:6B-1) [(concerning motor vehicles)] or section 3 of

15 L. 1972, c. 70 ([ N.J.S.A.] 39:6A-3) [(concerning automobiles)].” N.J.S.A.

17:28-1.4. Read plainly, the Legislature is imposing a required amount of

liability insurance by using the words, “shall . . . satisfy at least.”

As we said in Jersey Central Power & Light Co. v. Melcar Utility Co.,

we apply “the bedrock assumption that the Legislature did not use 'any

unnecessary or meaningless language,’ so a court 'should try to give effect to

every word of [a] statute . . . . [rather than] construe [a] statute to render part

of it superfluous.’” 212 N.J. 576, 587 (2013) (first quoting Patel v. Motor

Vehicle Comm’n, 200 N.J. 413, 418-19 (2009), then quoting Med. Soc’y of

N.J. v. Dep’t of Law & Pub. Safety, 120 N.J. 18, 26-27 (1990)). We thus

presume that “every word” in the deemer statute, including its words requiring

the minimal amount of liability coverage, “has meaning and is not mere

surplusage.” Cast Art Indus., LLC v. KPMG LLP, 209 N.J. 208, 222 (2012)

(quoting In re Attorney Gen.’s Directive on Exit Polling: Media & Non-

Partisan Pub. Interest Grps., 200 N.J. 283, 297-98 (2009)).

Moreover, in connection with its discussion of BI requirements for this

category of insurers, the Legislature underscored the obligation in subsection

a. of N.J.S.A. 39:6B-1, which refers to the $15,000/$30,000 compulsory BI

coverage requirements. Subsection a. of N.J.S.A. 39:6B-1 contains no

reference to the basic policy. Subsection b. of N.J.S.A. 39:6B-1 does. It

16
contains the reference to a basic policy as being acceptable if an insured

chooses to go bare on BI coverage. The legislative insertion of the

emphasizing words of “subsection a.” -- not leaving the sentence as it was and

allowing it to simply reference any or all subsections of N.J.S.A. 39:6B-1 --

must be regarded as intentional and meaningful to the Legislature. We cannot

and will not assume that the Legislature meant something other than what it

said, when it added a specific reference to the liability requirements of

subsection a.

The plain language leads to one clear conclusion. The basic policy was

added as a standard for insurers covered by the deemer statute’s first sentence.

The second sentence makes no mention whatsoever of the basic policy. It

refers only to the standard policy’s compulsory minimum insurance coverage

requirements. The plain language controls, and it does not support the

argument that the basic policy’s BI limits apply to insurers governed by the

deemer statute’s second sentence.

To the extent that there is any doubt about the plain language conclusion

reached, the outcome here also aligns with the legislative history of the deemer

statute.

17
When originally enacted, the statute applied to insurers who sold

policies providing automobile or motor vehicle coverage and who were either

authorized to sell automobile or motor vehicle insurance in New Jersey or

were legally affiliated with insurers authorized to sell insurance -- of any kind,

whether automobile/motor vehicle insurance or not -- in New Jersey. See

Cooper Hosp. Univ. Med. Ctr. v. Prudential Ins. Co., 378 N.J. Super. 510, 515-

16 (App. Div. 2005). The law required those insurers to include in their out-

of-state policies “coverage to satisfy at least the liability insurance

requirements of [N.J.S.A. 39:6B-1] or [N.J.S.A. 39:6A-3].” N.J.S.A. 17:28-

1.4 (1985). And, both of those statutes required BI coverage of at least

$15,000/$30,000. See N.J.S.A. 39:6B-1 (1985); N.J.S.A. 39:6A-3 (1985).

If any one of those insurers did not provide for the BI coverage of

$15,000/$30,000 and an insured driver of that insurer was involved in an

accident in New Jersey, the driver’s policy would be deemed to have BI

coverage “of not less than $15,000 on account of injury to, or death of, one

person in any one accident” and “coverage of not less than $30,000 on account

of injury to or death of more than one person in any one accident.” Whitaker

v. DeVilla, 147 N.J. 341, 347-48 (1997) (describing pre-AICRA versions of

N.J.S.A. 39:6B-1 and N.J.S.A. 39:6A-3).

18
Through a 1998 amendment, L. 1997, c. 436, § 1 (eff. Jan. 1, 1998), the

Legislature lightened the regulatory burden on one category of insurer:

affiliates of insurers who sell only non-motor vehicle and non-automobile

insurance in New Jersey. See Cooper Hosp., 378 N.J. Super. at 517. The

Legislature added language (creating a new, and currently the first, sentence of

the deemer statute) establishing that this category of insurer must include in its

out-of-state policies “only PIP benefits coverage and then only for New Jersey

residents.” Id. at 516.

Although that amendment limited the coverage that affiliates of insurers

transacting only non-motor vehicle/automobile insurance needed to provide

under the deemer statute, it was understood as not “effect[ing] a change in the

coverage required of” the other two types of insurers to which the deemer

statute applied: New Jersey authorized automobile/motor vehicle insurers and

affiliates of such insurers. Cooper Hosp., 378 N.J. Super. at 516-17; see also

Craig & Pomeroy, § 3.1 (acknowledging statutory distinction between

categories of insurers). Those insurers continued to have a duty to include BI

coverage of at least $15,000/$30,000 in their out-of-state policies, and if they

failed to do so and one of their insured drivers was involved in an accident in

New Jersey, that driver’s policy would still be deemed to have BI coverage of

$15,000/$30,000. Cooper Hosp., 378 N.J. Super. at 517.

19
Thus, the history of amendments reveals an intent to lessen the

regulatory burden only on the first sentence’s category of insurers who have

the most attenuated connection to motor vehicle insurance business in New

Jersey. For insurers governed by the second sentence, the Legislature has

never lessened their obligation to provide, or be deemed as providing,

compulsory minimum liability coverage. Even with the AICRA amendments,

when the Legislature altered language to further relieve insurers under the first

sentence of some requirements by expressly referencing PIP requirements

under the basic policy’s statutory commands, there was no similar,

coincidental action by the Legislature with respect to the second sentence.

Instead, the Legislature reaffirmed its commitment to BI coverage by its

additional reference to subsection a. of N.J.S.A. 39:6B-1.

That the second sentence also includes its longstanding reference to

N.J.S.A. 39:6A-3 -- which contains a carve-out that allows a New Jersey

insured the option to purchase less BI coverage -- does not establish that the

Legislature implicitly intended to convert the entire second sentence’s BI

requirements to the equivalent of a basic policy.

First, we reject any suggestion that the Legislature meant to create two

standards with respect to the terms of “automobile” and “motor vehicle.” The

20
deemer statute’s reference to N.J.S.A. 39:6A-3 was meant to ensure that the

statute encompasses both automobiles and motor vehicles. 1

Further, we do not believe the Legislature would have adopted,

elliptically, two conflicting standards. That would be the case if we were to

agree with GEICO that the change made for New Jersey insureds in N.J.S.A.

39:6A-3 is enough to lessen the deemer statute’s BI liability requirements.

Indeed, we conclude otherwise with respect to the deemer statute’s

requirements. The Legislature did not incorporate into the deemer statute the

new clause added to N.J.S.A. 39:6A-3 -- “Except as provided in [N.J.S.A.

39:6A-3.1” -- which provided an exception to the mandatory BI coverage by

way of the basic policy. Without a new cross-reference or some other

amendment to the deemer statute in 1998, we read the deemer statute as

originally drafted: it referenced the mandatory BI coverage provided for in

N.J.S.A. 39:6A-3 at the time the deemer statute was enacted.

1
As NJAJ has argued, automobile is defined as “a private passenger
automobile of a private passenger or station wagon type that is owned . . . and
is neither used as a public or livery conveyance for passengers nor rented to
others with a driver.” N.J.S.A. 39:6A-2(a). Motor vehicle means “motor
vehicle as defined in [N.J.S.A. 39:1-1], exclusive of an automobile as defined
in subsection a. of this section.” N.J.S.A. 39:6A-2(j). Thus, the Legislature
recognized a distinction between automobiles and motor vehicles. For that
reason, the deemer statute contains an “or” provision that incorporates
N.J.S.A. 39:6B-1 (which covers motor vehicles) and N.J.S.A. 39:6A-3 (which
covers automobiles).
21
GEICO’s interpretation would inject ambiguity into the mandatory

standard. It defies logic and sensibility that by retaining the reference to

N.J.S.A. 39:6A-3, the Legislature intended to make so large scale a change to

the deemer statute’s second sentence when, at the same time, the Legislature

knew how to and did incorporate an explicit reference to the basic policy in the

first sentence.

And, last, if we were to accept that the compulsory insurance obligations

of insurers has dropped to the basic policy’s BI floor, it would render the

mandatory language of the deemer statute’s second sentence nonsensical. We

are directed by the Legislature to presume that it intended that its words be

given their ordinary and plain meaning. See N.J.S.A. 1:1-1. GEICO’s

interpretation conflicts with the must “satisfy at least” structure of the

sentence, as well as the Legislature’s added emphasis on the requirements of

subsection a. of N.J.S.A. 39:6B-1. Ultimately, the Legislature’s failure to

include any reference to a basic policy in the deemer statute’s second sentence

is fatal to the argument advanced by GEICO.

The deemer statute speaks to what an insurer must provide. It has

always been aligned to compulsory minimums that insurers must provide for

insureds in New Jersey. The fact that the Legislature now permits New Jersey

insureds to accept something less in BI coverage -- namely, zero BI coverage

22
-- does not alter what remains the compulsory minimum BI liability coverage

amounts that insurers writing in New Jersey must provide. See N.J. Mfrs. Ins.

Co. v. Varjabedian, 391 N.J. Super 253, 258 (App. Div. 2007) (“It is only the

insured, not the insurer, who can elect to purchase the reduced coverage

provided with the basic policy.”). “From the perspective of the insurers’

obligation, the required compulsory insurance liability limits remain

$15,000/$30,000.” Ibid. That principle was recognized shortly after the

AICRA changes, see Cooper Hosp., 378 N.J. Super. at 516, and the Legislature

has never corrected that interpretation of the import of its AICRA alterations

regarding minimum compulsory insurance to be offered by insurers in New

Jersey.

As the Appellate Division stated, “[w]e have no reason to conclude that

the Legislature meant to eliminate the $15,000/$30,000 BI coverage minimum

just because it referred to the basic policy in one part of the statute that

addresses affiliates where it did not include that reference in the second

sentence, the original portion of the statute.” We agree. The plain language of

the statute leads to that conclusion.

23
IV.

GEICO claims a federal equal protection violation as its fallback

argument in its challenge to the deemer statute.

Under the Equal Protection Clause of the Fourteenth Amendment, a state

may not “deny to any person within its jurisdiction the equal protections of

laws.” U.S. Const. amend. XIV, § 2. A state is required to generally treat

alike “all persons who are similarly situated.” State v. Bianco, 103 N.J. 383,

394 (1986); see Greenberg v. Kimmelman, 99 N.J. 552, 564 (1985) (explaining

how federal equal protection analysis employs different tiers of review when

reviewing classifications that differentiate among persons).

Here we deal not with any fundamental right nor must we differentiate

between a suspect or semi-suspect class, which require the stricter forms of

review. See Greenberg, 99 N.J. at 564. This is economic legislation being

challenged by an insurer subject to its requirements. In this circumstance, the

rational basis test applies, in which “legislation is presumed to be valid and

will be sustained if the classification drawn by the statute is rationally related

to a legitimate state interest.” Bianco, 103 N.J. at 394.

24
B.

At the outset, it bears noting that no insurer is forced to write in New

Jersey. For the privilege of doing that, an insurer is bound by the law of New

Jersey. Every automobile insurance company that writes in New Jersey

accepts the same law and, thus, is treated the same.

In-state insurers that write auto policies in New Jersey and authorized

insurers that write in New Jersey and that also write for out-of-state insureds

must both offer their insureds the minimum compulsory level of BI liability

coverage of $15,000/$30,000 per person/per accident. The fact that legislation

now permits New Jersey resident insureds to choose to purchase a lesser

amount of liability coverage, and still be considered lawfully insured, does not

alter the obligation of either category of insurers to offer and provide the same

default statutory minimum level of compulsory coverage. See Varjabedian,

391 N.J. Super at 258 (noting that AICRA’s basic policy construct has not

altered the obligations of the insurer because, “[f]rom the perspective of the

insurers’ obligation, the required compulsory insurance liability limits rema in

$15,000/$30,000”). The choice to elect basic policy coverage belongs to the

New Jersey insured, not to the insurer; the insurer remains bound to offer and

must provide at least the minimum compulsory liability amounts

25
presumptively set by the Legislature, unless a New Jersey resident makes the

basic policy election.

As the Appellate Division correctly observed, “all insurers writing

policies in New Jersey are treated uniformly; it’s the consumer who has the

option to purchase more affordable coverage.” We agree with that assessment.

Comparing a New Jersey authorized insurer that writes in New Jersey to

another New Jersey authorized insurer that writes in New Jersey and also

writes in other states, the equal protection claim falls flat. The insurers are

treated the same with respect to the duty to provide minimum compulsory

insurance coverage limits -- whether to resident insureds or to out-of-state

insureds through policies written in other states. There is no discriminatory

classification.

New Jersey insureds are the ones who have a choice to purchase less

than the presumptive minimum amount that must be offered by all insurers

authorized to transact automobile insurance business in this State. The

obligation of in-state insurers to offer and provide that minimum is the same as

the obligation imposed under the deemer statute’s second sentence on

authorized insurers writing an out-of-state policy. For those out-of-state

policies, the Legislature has made the policy choice to stick with the

26
compulsory minimum limits. We do not view that legislative choice as failing

a rational basis test.

The deemer statute has long been recognized as having a rational

purpose that advanced legitimate state interests. The statute was enacted in

1985 “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.” Gov’t Emps.

Ins. Co. v. Allstate Ins. Co., 358 N.J. Super. 555, 560 (2003) (internal

quotation marks omitted) (quoting Craig & Pomeroy, § 1:2-6). In imposing on

the out-of-state insurance writer the same obligation to write insurance for its

out-of-state insureds that it must write for insureds in New Jersey, New Jersey

insureds’ interests were advanced as well as other policy goals. The statute

was also expressly “intended 'to reduce the demands on the Unsatisfied Claim

and Judgment Fund [(UCJF)].’” Ibid. (quoting Craig & Pomeroy, § 1:2-6).

The statute was intended to help “lower premiums, reduce litigation[,] and

make PIP benefits available to all.” Id. at 561.

The Legislature’s choice to exercise caution with respect to the assets of

the UCJF is also advanced here and lends support in this challenge to the

current version of the deemer statute. The legislative choice to be more

protective of the UCJF from claims caused by out-of-state insured tortfeasors

27
who may have no access to BI insurance coverage than from a claim caused by

a New Jersey tortfeasor having only a basic policy is not an irrational policy

choice. The allowance of a basic-policy choice for New Jersey residents does

not undermine the rationality of the deemer statute. In New Jersey, there is

still a presumption for the standard policy and its limits of coverage. The

Legislature has reinforced that presumption through the deemer statute , which

promotes the availability of insurance coverage for accidents that occur in

New Jersey, helps reduce litigation, and alleviates the upward pressure on

premiums in New Jersey.

Finally, we are compelled to note that any argument that relies on a

claimed disparity for the out-of-state insured -- for whom the Legislature has

made the choice to retain the presumptive standard policy BI coverage limits --

is misplaced in this appeal.

First of all, there is no insured to advance such a claim. GEICO cannot

advance the claim of an insured as if it were its own.2

2
The perspective of the insured is not only an improper viewpoint for the
insurer to adopt as its argument in this equal protection analysis, we are
constrained to note, moreover, that an out-of-state insured, unhappy with the
deemer statute’s impact on his or her rates with an insurer subject to New
Jersey’s statute, has other viable courses of action. Such an individual can
choose to purchase insurance from an out-of-state insurer that does not write in
New Jersey in order to avoid the deemer statute’s application.
28
The lack of an insured as a party is problematic also because a proper

record has not been presented. We do not know from this record what an

insured is told in another jurisdiction about his or her coverage choices. We

do not know whether the potential for the deemer statute’s triggering has any

impact on out-of-state insurance policy ratings. Not knowing whether there

would be any differential, we cannot assume or speculate on whether any

effect would be impactful or even discernible from an insured’s perspective.

In short, there is critical information missing from this record. We cannot

operate on assumptions and speculation about the impact that the deemer

statute has on an out-of-state insured.

That said, in the past, the legislative decision to treat in-state and out-of-

state insureds differently in terms of the scope of their choice of coverage has

not been deemed irrational. See Whitaker, 147 N.J. at 357-58. In Whitaker,

this Court rejected an equal protection challenge by an insured because in-state

insureds are afforded a verbal threshold/tort option choice but the deemer

statute imposed a verbal threshold on out-of-state policies. Ibid. (“Because

[out-of-state] carriers could be compelled to offer their non-resident insureds

the benefits of New Jersey’s minimum liability, uninsured motorist, and

personal injury protection benefit coverages, the Legislature determined that it

could appropriately impose the verbal threshold on those insureds.”).

29
We deal here only with an insurer’s claim of an equal protection

violation. As to that, we find no violation of equal protection in the operation

of the deemer statute as construed.

The judgment of the Appellate Division is affirmed.

30
Guerline Felix,

Plaintiff,

Brian V. Richards,

Defendant.

Brian V. Richards and Kassandria Richards,
his wife per quod,

Plaintiffs,

Guerline Felix, Mid-Atlantic
Insurance Company of New Jersey,

Defendants,

and

AAA Mid-Atlantic Insurance Company,

Third-Party Plaintiff-Respondent,

GEICO Indemnity Company,

Third-Party Defendant-Appellant.

JUSTICE FERNANDEZ-VINA, dissenting.

1
I would reverse the Appellate Division’s judgment. Under the deemer

statute, an insurer’s out-of-state policies must include 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. Because both statutes can be satisfied by policies that carry no BI

coverage, GEICO fulfilled its duty. I respectfully dissent from the majority’s

finding that GEICO did not satisfy its duty because requiring GEICO to reform

its policy would constitute a violation of the Equal Protection Clause of the
Fourteenth Amendment. New Jersey insureds are not required to have BI

coverage themselves, and requiring out-of-state insurers to provide more

coverage when their insureds enter the state distinguishes unconstitutionally

between in-state and out-of-state drivers.

The deemer statute, N.J.S.A. 17:28-1.4, “requires insurers authorized to

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.’” Zabilowicz v. Kelsey, 200 N.J. 507, 513 (2009) (quoting N.J.S.A.

17:28-1.4). The statute was enacted in 1985 as part of the State’s “no fault

automobile insurance plan” and “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
2
requirements.” Leggette v. Gov’t Emps. Ins. Co., 450 N.J. Super. 261, 265

(App. Div. 2017) (quoting Gov’t Emps. Ins. Co. v. Allstate Ins. Co., 358 N.J.

Super. 555, 560 (App. Div. 2003)).

When enacted in 1985, the deemer statute required insurers to include

Personal Injury Protection (PIP) and other New Jersey coverages in their out-

of-state drivers’ policies. Allstate Ins. Co., 358 N.J. Super. at 560. The

Legislature aimed to minimize the number of New Jersey residents injured in

automobile accidents by out-of-state drivers with BI coverage less than the

New Jersey state requirements. Ibid. The Legislature additionally intended

“to reduce the demands on the Unsatisfied Claim and Judgment Fund

[(UCJF)].” Ibid. (quoting Craig & Pomeroy, N.J. Auto Insurance Law, § 1:2-6

(2003)). Out-of-state policies subject to the statute that do not contain express

provisions in compliance with the New Jersey statute are “deemed” to comply.

Ibid. As a result, “the law acquired the name by which it is commonly known,

the deemer statute.” Ibid. The deemer statute was additionally intended “to

lower premiums, [and] reduce litigation” while seeking the proper recourse for

New Jersey residents when injured by out-of-state drivers. Id. at 561.

I conclude GEICO satisfied its duty under the deemer statute, and

mandating it to reform its Florida policy violates the Equal Protection Clause

of the federal constitution. I disagree with the majority’s view that to satisfy

3
its duty under the deemer statute, GEICO must include in its Florida policy the

BI coverage outlined in N.J.S.A. 39:6B-1(a), or if it fails to do so, the policy

will be deemed to have BI coverage of $15,000/$30,000. This view ignores

that N.J.S.A. 39:6B-1 has been amended since the deemer statute was enacted,

and thus has created two alternate tracks by which a New Jersey driver can

satisfy the requirements of N.J.S.A. 39:6B-1(a), even if her policy carries zero

BI coverage.

The basic policy referenced in N.J.S.A. 39:6B-1(b) explicitly offers

insureds the option of purchasing personal liability coverage for $10,000.

Nonetheless, the basic policy does not “provide for or mandate personal

liability insurance like its 'standard policy’ counterpart.” Citizens United

Reciprocal Exch. v. Perez, 223 N.J. 143, 153 (2015). Therefore, a New Jersey

driver can satisfy N.J.S.A. 39:6B-1(a), a statute that “appears” to require all

New Jersey drivers to carry BI coverage of $15,000/$30,000, by purchasing a

basic policy that may carry zero BI coverage. At most, the basic policy can

have BI coverage of $10,000 per accident.

Furthermore, like the basic policy, the special policy referenced in

N.J.S.A. 39:6B-1(c) has no BI coverage. As such, a New Jersey driver can

also satisfy the minimum requirements of N.J.S.A. 39:6B-1(a), a statute that

also “appears” to require all New Jersey drivers to carry BI coverage of

4
$15,000/$30,000, by purchasing a special policy that necessarily has no BI

coverage. In sum, when read together, N.J.S.A. 39:6B-1(a), (b), and (c)

establish that New Jersey drivers can satisfy the minimum requirements and

avoid sanctions for noncompliance under N.J.S.A. 39:6B-2 by purchasing a

standard, basic, or special automobile insurance policy that has no BI

coverage.

An out-of-state insurance provider satisfies its duty under the deemer

statute if its policy’s coverage satisfies at least the liability insurance

requirements of N.J.S.A. 39:6B-1(a) or N.J.S.A. 39:6A-3. Although GEICO

satisfied its duty pursuant to N.J.S.A. 39:6B-1(a), it also satisfied its duty

under N.J.S.A. 39:6A-3. More specifically, the language of the statute’s first

sentence, “[e]xcept as provided by [N.J.S.A. 39:6A-3.1],” amounts to an

exception within N.J.S.A. 39:6A-3 for the policy defined by N.J.S.A. 39:6A-

3.1: the basic policy.

The Legislature’s intent in amending N.J.S.A. 39:6A-3 is clear: a New

Jersey driver can lawfully purchase a basic policy that has no BI coverage. As

a result, an insurer can satisfy the minimum requirements of N.J.S.A. 39:6A-3

in its out-of-state policy, even if the policy carries no BI coverage. This leads

to the same conclusion drawn above: GEICO’s Florida policy should not be

deemed to have BI coverage of $15,000/$30,000.

5
Given the specific facts of this case and the creation of the basic and

special policies, New Jersey drivers can no longer reasonably expect the other

drivers with whom they share the road to necessarily have BI coverage. In

other words, whenever a New Jersey resident is driving, he or she is at risk of

involvement in an accident with another New Jersey driver whose policy

carries no BI coverage. According to the Legislature, this is an acceptable risk

because policies with no BI coverage are more “affordable for individuals with

limited income” and “encourage drivers to seek coverage” who otherwise

might not. See Citizens United, 223 N.J. at 153, 156. If the deemer statute

were interpreted to require insurers to include BI coverage of $15,000/$30,000

in their out-of-state policies, New Jersey drivers would be in a better position

if injured by an out-of-state driver with the out-of-state equivalent of a basic or

special policy than they would be if they were injured by a New Jersey driver

who had an actual basic or special policy.

Because GEICO satisfied its duty pursuant to the deemer statute, it is not

necessary to reach the constitutional question at issue. However, even though

the majority deemed GEICO’s Florida policy to carry $15,000/$30,000 BI

coverage, mandating GEICO to reform its out-of-state policy violates the

Equal Protection Clause, as it requires out-of-state insurance companies who

do business in New Jersey or are affiliated with those who do business in New

6
Jersey to provide higher coverage limits for its out-of-state insureds than is

required for in-state drivers. This is not to suggest that the deemer statute

itself is unconstitutional, but that it is unconstitutional as applied to GEICO in

this circumstance.

“The Fourteenth Amendment of the United States Constitution prohibits

a State from denying 'any person within its jurisdiction the equal protection of

the laws,’” which is “'essentially a direction that all persons similarly situated

should be treated alike.’” Dyszel v. Marks, 6 F.3d 116, 124-25 (3d Cir. 1993)

(quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1984)).

Because the deemer statute does not infringe on fundamental rights and is not

“drawn upon inherently suspect distinctions such as race, religion, or

alienage,” it is evaluated under rational basis review. Maceluch v. Wysong,

680 F.2d 1062, 1065 (5th Cir. 1982) (quoting New Orleans v. Dukes, 427 U.S. 297, 303 (1976)); accord Dyszel, 6 F.3d at 125. “If a statutory distinction has

some reasonable basis, 'a State does not violate the Equal Protection Clause

merely because the classifications made by its laws are imperfect.’” Whitaker

v. DeVilla, 147 N.J. 341, 358 (1997) (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)).

The basic automobile policy was introduced by the Legislature with the

intent to provide affordable insurance to those who would otherwise not pursue

7
coverage. However, the scheme that New Jersey implements does not further

the Legislature’s intent. When enacting basic and special automobile

insurance policies, the Legislature was likely not interested in whether out-of-

state drivers had access to the same type of affordable insurance product as

New Jersey drivers. The Legislature, therefore, could have sought to design a

scheme in which most drivers on New Jersey roads carry BI coverage because

they either own a standard policy, own a basic policy with optional BI

coverage, or own an out-of-state policy that, regardless of its terms, is deemed

to have BI coverage of $15,000/$30,000. The only drivers without at least

some amount of BI coverage would be the minority of drivers who own either

a basic policy with no BI coverage, or a special policy. This scheme would

maximize New Jersey consumers’ access to affordable insurance while also

minimizing the pressure on the UCJF’s financial resources.

Although this Court recognizes that an automobile insurance scheme that

properly compensates accident victims by liable tortfeasors is desirable, such a

scheme cannot expect or require out-of-state drivers to carry higher BI

coverage limits than those New Jersey drivers are required to carry. In such a

circumstance, and in this case, New Jersey drivers are wrongfully advantaged,

given the option to purchase no BI coverage while out-of-state drivers are

deemed to provide $15,000/$30,000, regardless of insurer or policy type. This

8
wrongfully infringes upon the rights of out-of-state insurance carriers and

citizens, as well as out-of-state insurers’ ability to do business in New Jersey.

The argument that this provides a benefit to the out-of-state driver by

providing additional BI coverage does not consider that the coverage is likely

provided at the cost of an increase in premium. Specifically, Florida’s Motor

Vehicle No-Fault Law was enacted in 1971 to “provide for medical, surgical,

funeral, and disability insurance benefits without regard to fault, and to require

motor vehicle insurance securing such benefits.” Fla. Stat. § 627.731.

Through its enactment, the Florida Legislature intended to require motor

vehicle insurers who issue policies in Florida to provide PIP benefits for

bodily injury “arising out of the ownership, maintenance, or use of a motor

vehicle.” Fla. Stat. § 627.736(1). Therefore, Florida insureds driving through

New Jersey inevitably carry BI coverage in their policies, something New

Jersey drivers are not required to do.

In the event a Florida insured is involved in an accident with a New

Jersey driver in New Jersey, under the current New Jersey legislative scheme,

the Florida driver is required to carry more BI coverage than the New Jersey

driver and is more likely to be liable for damages as a result. Such disparity in

coverage frustrates the legislative intent of our sister state and may affect

Florida insurers’ willingness to do business in New Jersey in the future. The

9
same holds true for all other states whose insurance policies carry some level

of mandated BI coverage.

Because GEICO satisfied its duty pursuant to the deemer statute, as well

as both N.J.S.A. 39:6A-3 and N.J.S.A. 39:6B-1, GEICO should not be required

to reform its Florida policy to include $15,000/$30,000 BI coverage . Even if

GEICO failed to satisfy its statutory duty, requiring it to reform its Florida

policy would violate the Equal Protection Clause and would be

unconstitutional.

For the foregoing reasons, I respectfully dissent.

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