SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1720-94T5
CATHRYNE M. LOFTUS-SMITH,
Plaintiff-Appellant,
and
GREGORY A. SMITH, her husband,See footnote 1
Plaintiff,
vs.
SUSAN MARGARET HENRY, WILLIAM C.
JOBES, CORA S. COLLINS, CONCEPCIO
FIGUEROA and ZULMA M. FIGUEROA,
Defendants-Respondents.
Argued December 12, 1995 - Decided January 23, 1996
Before Judges Michels, Baime and Villanueva.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County.
Franklin P. Solomon argued the cause for
appellant (Tomar, Simonoff, Adourian &
O'Brien, attorneys; Mr. Solomon, of counsel
and on the brief).
Michael W. Glaze argued the cause for
respondent Susan Margaret Henry (Gercke,
Dumser & Feld, attorneys; Mr. Glaze, of
counsel and on the brief).
Laurie Harrold Rizzo argued the cause for
respondent William C. Jobes (Slimm &
Goldberg, attorneys; Ms. Rizzo, of counsel
and on the brief).
Daniel J. Gallagher argued the cause for Cora
S. Collins (Youngblood, Corcoran, Aleli,
Lafferty & Stackhouse, attorneys; Thomas M.
O'Leary, on the statement in lieu of brief).
Frank P. Menaquale, Jr., argued the cause for
Zulma M. Figueroa (John J. Spence, Jr.,
attorney; Mr. Menaquale, on the statement in
lieu of brief).
The opinion of the court was delivered by
VILLANUEVA, J.A.D.
Plaintiff Cathryne Loftus-Smith appeals from a summary
judgment dismissing with prejudice her complaint for both
economic and noneconomic damages because of her failure to
satisfy the verbal threshold, N.J.S.A. 39:6A-8a (the Statute).
The trial court held, inter alia, that plaintiff had not met the
verbal threshold which barred her claims against defendant Susan
Margaret Henry, a non-resident, as well as all the other
defendants.
Plaintiff seeks a reversal of the summary judgment and a
remand for a trial, contending that the trial court erred in
ruling that (1) an out-of-state insurer neither transacting nor
authorized to transact business in New Jersey is permitted to
raise the verbal threshold as a defense to full tort liability;
(2) the verbal threshold was a bar to recovery of her economic
losses; and (3) her injuries did not meet the standard of the
verbal threshold with respect to her claims for noneconomic
damages to survive summary judgment.
The primary issue is whether a non-resident automobile
driver insured by a foreign insurance company not authorized to
transact business in New Jersey but whose policy requires the
company to afford personal injury protection (PIP) benefits to
the same extent as the state in which an accident occurs is an
"exempt" person under N.J.S.A. 39:6A-8a qualified to raise the
verbal threshold as an affirmative defense. We hold that such a
non-resident insured is not entitled to the benefit of the
exemption.
On February 24, 1991, plaintiff, then 23 years of age, was
involved in a five-car chain reaction accident . Her Nissan
Sentra was struck in the rear by a Ford Mustang driven by Susan
Margaret Henry, which in turn was struck from behind by William
Jobes' car. Mr. Jobes' car was then hit from behind by Cora
Collins' car, which was then struck from behind by Zulma Figueroa
who was driving Concepcio Figueroa's car. After the accident,
Henry's car was the only one that could not be driven away. In
March 1991, Henry was found guilty of careless driving in the
Westhampton Municipal Court.
Henry's driver's license showed her residence as
Philadelphia, Pennsylvania. Her car, however, was registered in
Arizona. Her insurance policy was issued in Arizona by North
American Indemnity Company,See footnote 2 a Louisiana corporation, apparently
authorized to transact business in Arizona but not New Jersey.
Henry is subject to the verbal threshold on her automobile
insurance policy.
Following the accident, plaintiff was taken to Burlington
County Memorial Hospital where x-rays were taken and she was
diagnosed with "cervical h/s strain/sprain." The nature and
extent of all of plaintiff's injuries are discussed infra at page
15.
Plaintiff alleges that she had intended to go to nursing
school, but she is unable to do so because her doctors told her
she cannot perform heavy lifting. Plaintiff's vocational-economist, assuming that plaintiff was medically precluded from
performing certain exertional duties, estimated the difference
between plaintiff's pre-injury earning capacity and her post-injury earning capacity to be as much as $15,000 annually since
she would be limited to certain nonexertional jobs.
On September 4, 1991, plaintiff and Gregory A. Smith, her
husband, filed a complaint in the Superior Court seeking economic
and noneconomic damages against the following defendants: Susan
Margaret Henry, William C. Jobes, Cora S. Collins, Concepcio
Figueroa and Zulma M. Figueroa. Plaintiff's husband sought
damages for loss of services and consortium. On June 24, 1993, a
consent order dismissing Gregory A. Smith's claim was entered.
After all defendants filed motions for summary judgment to
dismiss the complaint predicated upon plaintiff's failure to
satisfy the verbal threshold, the trial court found that
plaintiff did not set forth an objective test showing serious
injury caused by the February 24, 1991, accident. The trial
court reasoned that "the only objective test that plaintiff
underwent which shows signs of an injury was the April 9, 1991,
CAT scan; yet, the test result was the same as the CAT scan
result after plaintiff's 1989 accident. . . . [N]ew injuries or
a worsening of any of plaintiff's previous injuries have not been
documented." The trial court thus concluded that the impact on
plaintiff's life is irrelevant since plaintiff did not prove the
first prong of Oswin v. Shaw,
129 N.J. 290 (1992), by producing
objective credible medical evidence of an injury.
The trial court then rejected plaintiff's argument that
Henry did not have standing to assert the verbal threshold as a
defense because she is a Pennsylvania resident insured by a
company not authorized to transact business in New Jersey. The
trial court ruled that all that is required for a defendant to
raise the verbal threshold to bar plaintiff's claim is that PIP
coverage be applicable. Henry's insurance policy indicates that
at the time of the accident she had the right to PIP coverage at
least in the minimum amounts and types of coverage that the
foreign state of an accident requires. Therefore, the trial
court held that Henry had standing to raise the verbal threshold
as an affirmative defense.
On May 11, 1994, the trial court granted summary judgment in
favor of all defendants dismissing plaintiff's claims for
noneconomic loss but reserved the decision regarding economic
loss until the Supreme Court decided Roig v. Kelsey,
262 N.J.
Super. 579 (App. Div.), certif. granted,
133 N.J. 445 (1993).
On October 7, 1994, after hearing arguments on plaintiff's
motion for reconsideration, the trial court noted that subsequent
to entry of the May 11 order, Roig v. Kelsey,
135 N.J. 500
(1994), had been decided. In Roig, the Supreme Court held that
N.J.S.A. 39:6A-12 of the New Jersey Automobile Reparation Reform
Act, N.J.S.A. 39:6A-1 to -35 (No-Fault Law), prohibits an injured
party from recovering from a tortfeasor the medical-expense
deductible and twenty-percent copayment under a PIP policy. The
trial court, interpreting Roig, held that plaintiff is barred
from recovering economic damages as well.
The trial court then addressed plaintiff's argument that in
order for the verbal threshold to bar plaintiff's claim against
Henry, N.J.S.A. 17:28-1.4, the "deemer" statute, must be
satisfied. The trial court concluded that the
. . . Deemer statute is for the sole purpose
of imposing the verbal threshold upon a class
of people, plaintiffs. The verbal threshold
is not a defense raised, but a law plaintiffs
are subjected to so long as the requirements
are met. . . . The Deemer statute does not
apply to the defendants and, therefore,
plaintiff's arguments fall.
Next, the trial court considered plaintiff's motion to
reconsider the determination that plaintiff's injuries did not
satisfy the verbal threshold and again concluded that plaintiff
did not prove a preexisting injury and the subsequent aggravation
of such, and accordingly denied plaintiff's motion for
reconsideration.
On October 24, 1994, plaintiff's complaint was dismissed
with prejudice as to all defendants. Plaintiff appeals from that
order.
Plaintiff first argues that defendant Henry is precluded from asserting the verbal threshold of the Statute, N.J.S.A. 39:6A-8a, as a bar to plaintiff's claims since Henry's insurer is not required by any New Jersey statute to provide PIP benefits and therefore does not participate in the quid pro quo trade-off that is the basis of the no-fault insurance scheme.
A two-prong analysis is used to determine whether plaintiff is subject to the verbal threshold requirement of N.J.S.A. 39:6A-8a. Beaugard v. Johnson, 281 N.J. Super. 162, 167 (App. Div. 1995); see also Weiss v. Thomas, 274 N.J. Super. 37, 41-42 (App. Div. 1994). The first prong directs an examination of the status of the defendant, namely, whether the defendant is the owner or operator of an "automobile" and is entitled to receive no-fault PIP benefits under N.J.S.A. 39:6A-4. The second prong focuses on the plaintiff's "characteristics," namely whether plaintiff is a person who is: (a) "subject to" the verbal threshold statute and (b)(i) is required to maintain PIP coverage, or (ii) has a right to receive PIP benefits under N.J.S.A. 39:6A-4. Weiss, supra, 274 N.J. Super. at 41-42.
A person is "required to maintain [PIP] coverage" if he or she is the "owner ... of an automobile registered or principally garaged in this State." N.J.S.A. 39:6A-3. A person has "a right
to receive [PIP] benefits" if he or she is a member of named
insured or his or her family residing in his or her household
"sustained bodily injury as a result of an [automobile]
accident."
Henry was not a "person who [was] required to maintain [PIP]
coverage." Neither was she a person who had "the right to
receive [PIP] benefits."
In the more common case, the inquiry regarding this second
element focuses on whether the defendant's vehicle is an
"automobile," as defined in N.J.S.A. 39:6A-2a. In the instant
case, however, the issue is whether Henry is a person for whom
New Jersey PIP coverage is statutorily mandated. Whether the
verbal threshold exemption may be raised as a defense herein
therefore depends on the identity of the insurer of Henry's
vehicle and whether PIP benefits for Henry are required by New
Jersey. See Weiss, supra, 274 N.J. Super. at 41-42.
A treatise explains this issue as follows:
Because N.J.S. 39:6A-8a provides that the
exemption applies only where N.J.S. 39:6A-4
applies to defendant's vehicle, when the
accident occurs in New Jersey and defendant's
vehicle is properly insured out-of-state the
identity of that insurer determines the
applicability of the 39:6A-8a exemption when
plaintiff has chosen the verbal threshold.
If defendant's insurer is authorized to
transact or transacts insurance business in
New Jersey, by operation of N.J.S. 17:28-1.4
defendant is "deemed" to be covered by 39:6A-4 and thus may benefit from the exemption
requiring plaintiff to meet the verbal
threshold. Where defendant's insurer neither
transacts nor is authorized to transact
business in New Jersey, 39:6A-4 cannot be
said to apply to that vehicle thus precluding
availability of the exemption.
[Cynthia M. Craig & Daniel J. Pomeroy, New
Jersey Auto Insurance Law §15:3-3b, at 186
(1995) (emphasis added).]
N.J.S.A. 39:6A-4 requires every automobile insurance policy
to provide for the payment of certain PIP benefits without regard
to fault of any kind. Dyszel v. Marks,
6 F.3d 116, 119 (3d Cir.
1993). PIP benefits are paid by the injured party's insurance
company, not the tortfeasor's insurance company. "Accordingly,
all persons injured while using an automobile are entitled to
receive PIP benefits from their own insurance company regardless
of who is at fault for the accident." Gerald H. Baker, A Look At
No Fault in 1994,
140 N.J.L.J. 236 (April 24, 1995).
In exchange for the advantages of the availability of PIP
benefits, the no-fault insurance law imposes a limit on the right
of persons injured in automobile accidents to recover noneconomic
damages from the driver and/or owner who was at fault. With
respect to noneconomic damages under the No-Fault Law, New Jersey
residents are required to choose between the "verbal threshold"
option and the more expensive "full coverage" option. Taylor v.
Rorke,
279 N.J. Super. 63, 67 (App. Div.), certif. denied,
141 N.J. 99 (1995). Under the full coverage option, N.J.S.A. 39:6A-8b, the insured has the unlimited right to sue for noneconomic
loss, including pain and suffering. Taylor-Segan v. Rajagopal,
275 N.J. Super. 286, 289 (App. Div. 1994).
Under the verbal threshold option:
Every owner, registrant, operator or
occupant of an automobile to which [N.J.S.A.
39:6A-4], personal injury protection
coverage, regardless of fault, applies, and
every person or organization legally
responsible for his acts or omissions, 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 the coverage
mandated by this act, or is a person who has
a right to receive benefits under [N.J.S.A.
39:6A-4], 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
personal injury which results in death;
dismemberment; significant disfigurement; a
fracture; loss of a fetus; permanent loss of
use of a body organ, member, function or
system; permanent consequential limitation of
use of a body organ or member; significant
limitation of use of a body function or
system; or a medically determined injury or
impairment of a non-permanent nature which
prevents the injured person from performing
substantially all of the material acts which
constitute that person's usual and customary
daily activities for not less than 90 days
during the 180 days immediately following the
occurrence of the injury or impairment; . . .
[N.J.S.A. 39:6A-8a.]
If an insured fails to elect either one of these tort options, he
or she is deemed to have elected the verbal threshold option.
N.J.S.A. 39:6A-8.1b; Taylor-Segan v. Rajagopal, supra, 275 N.J.
Super. at 289.
Nonresident insurers authorized to transact business in New
Jersey are also subject to New Jersey's No-Fault Law by virtue of
N.J.S.A. 17:28-1.4, which requires insurance companies authorized
to transact business in New Jersey to include New Jersey PIP
coverage in policies sold in other states whenever the vehicle
insured is operated in this state. Adams v. Keystone Ins. Co.,
264 N.J. Super. 367, 371, 375 (App. Div. 1993). This particular
statute provides that nonresident automobile owners or drivers
whose insurers are authorized to transact business in this state
are subject to the verbal threshold restrictions set forth in
N.J.S.A. 39:6A-8a. Taylor-Segan v. Rajagopal, supra, 275 N.J.
Super. at 288.
Most decisions involving nonresidents have dealt with
nonresident automobile accident victims who sought damages
against in-state defendants and whose out-of-state insurance
companies were authorized to transact business in New Jersey.
See Dyszel v. Marks, supra, 6 F.
3d at 121; Taylor v. Rorke,
supra, 279 N.J. Super. at 66-67; Taylor-Segan v. Rajagopal,
supra, 275 N.J. Super. at 289; Adams v. Keystone Ins. Co., supra,
264 N.J. Super. at 369; Watkins v. Davis,
259 N.J. Super. 482,
486 (Law Div. 1992), aff'd o.b.,
268 N.J. Super. 211 (App. Div.
1993); cf. Phillips v. Phillips,
267 N.J. Super. 305, 308, 319
(App. Div. 1993) (plaintiffs were New Jersey residents and
defendants were nonresidents whose insurer was authorized to
transact business in New Jersey). The factual scenario herein is
different, however, in that plaintiff is a resident subject to
the verbal threshold in her insurance policy seeking noneconomic
and economic damages against an out-of-state defendant (Henry)
whose insurance company is not authorized to transact business in
this state.
Henry essentially argues that she was provided with the
minimum amount of PIP coverage required by N.J.S.A. 39:6A-4
because her insurance policy states that it provides the same
"minimum amounts and types of coverage" required to be maintained
by nonresidents whose insurers transact business in New Jersey.
However, a private contract which includes some of the elements
that would have been mandated by law had there been some basis
for jurisdiction in this state does not satisfy the Statute. The
coverages provided by such an insurance policy are strictly a
private contractual matter between the insurer and the insured.
In order to avail oneself of the benefits and defenses of the New
Jersey No-Fault Law, one must be subject to its statutory scheme.
Even though an out-of-state insurance company may
voluntarily contract to provide its insured with New Jersey's
level of PIP benefits where it was not required to do so by
operation of the New Jersey No-Fault Law, the insurance company
is not entitled to the benefit of the Statute's verbal threshold
tort exemption when its insured is named as a defendant. An out-of-state driver or owner could be brought within the PIP
statute's ambit only by operation of the "deemer" statute.
The plain language of N.J.S.A. 39:6A-8a establishes that
Henry cannot raise the verbal threshold as an affirmative
defense. The Statute states in pertinent part:
Every owner, registrant, operator or occupant
of an automobile to which [N.J.S.A. 39:6A-4],
personal injury protection coverage . . .
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
the coverage mandated by this act, or is a
person who has a right to receive benefits
under section 4 of P.L.1972, c. 70 (C. 39:6A-4).
[N.J.S.A. 39:6A-8a (emphasis added).]
Although plaintiff is a person subject to the verbal threshold in
her insurance policy and is required to maintain coverage
mandated by N.J.S.A. 39:6A-4, Henry is not an owner or operator
of an automobile to whom section 4 applies. The fact that
Henry's insurance policy happens to contain the coverage required
by New Jersey is irrelevant; New Jersey does not require her to
carry such coverage since her insurer is not authorized to
transact business in this state.
The purpose of the verbal threshold is not to act as an
arbitrary, blanket limitation on the right to bring suit but to
limit that right only where it will further the goal of reducing
insurance premiums for New Jersey residents. Limiting a
plaintiff's right of recovery against a nonresident defendant and
her out-of-state insurer cannot result in lower insurance costs
in New Jersey and does not further the purpose of the No-Fault
Law. There is no state interest in granting this insurer the
statutory protection of tort exemption that is afforded insurers
who actually serve the citizens of New Jersey.
We reverse the summary judgment dismissing the complaint
against Henry and allow plaintiff to proceed with her claim for
noneconomic loss against Henry.
Plaintiff next argues that she should not have been precluded from pursuing all of her economic losses (such as the lost opportunity to pursue a nursing career) even though her noneconomic claims are barred by the verbal threshold. Plaintiff alleges that she had intended to go to nursing school but because her doctors told her that she cannot perform heavy lifting, she is unable to do so. She says that she is "now a telemetry technician earning much less than I would have been able to [earn] as a registered nurse."
Robert R. Wolf, E.D., M.B.A., issued a Vocational-Economic Loss Report for plaintiff. He assumed for the purposes of the report that plaintiff was medically precluded from performing certain exertional duties. Dr. Wolf found that plaintiff's "medical impairment has resulted in a disability pursuant to an alteration of her capacity to meet occupational demands within her experiential and educational background." He estimated her pre-injury earning capacity to be between $40,000 and $45,000 and, because she would be limited to certain nonexertional jobs, her post-injury earning capacity to be between $30,000 and $35,000.
Recently, we held that a plaintiff who is involved in an automobile accident and does not satisfy the threshold requirements of N.J.S.A. 39:6A-8a, which bars recovery for noneconomic loss except in certain instances, may nonetheless recover unreimbursed income losses to the extent that income loss
is otherwise uncompensated by income continuation benefits or
otherwise. Bennett v. Hand,
284 N.J. Super. 43, 45 (App. Div.
1995). We relied upon N.J.S.A. 39:6A-12 which states: "Nothing
in this section shall be construed to limit the right of
recovery, against the tortfeasor, of uncompensated economic loss
sustained by the injured party." Id. at 45.
Defendants argue that even if lost income is recoverable,
plaintiff has lost no income and any projected loss is
speculative. However, in opposition to defendants' motions for
summary judgment, plaintiff offered competent evidence sufficient
to permit a jury to find that she will sustain a substantial loss
during her long worklife by not being able to become a registered
nurse. That evidence was sufficient to defeat defendants'
motions for summary judgment. See Brill v. Guardian Life Ins.
Co. of America,
142 N.J. 520, 523 (1995).
We are mindful that from the inception of the no-fault
statutory scheme, the Legislature intended to eliminate minor
personal-injury-automobile-negligence cases from the court
system, Roig v. Kelsey, supra, 135 N.J. at 510; and permitting a
person whose injuries do not satisfy the verbal threshold to
recover lost income, at least to the extent that the income loss
is otherwise uncompensated, will cause many claims for lost
income in minor automobile accident cases. However, the
Legislature clearly provided for recovery of such "uncompensated
economic loss." N.J.S.A. 39:6A-12.
Therefore, plaintiff is entitled to a trial on her claimed
economic losses against all defendants.
Plaintiff argues that the trial court erred in ruling that plaintiff's injuries did not meet the standard to survive summary judgment on the verbal threshold.
To meet the verbal threshold, plaintiff must submit objective credible evidence of an injury and disability that fits the statutory definition of "serious injury." Oswin v. Shaw, supra, 129 N.J. at 318-19. The trial court found that plaintiff failed to produce an objective test showing any serious injury.
Plaintiff argues that she submitted medical evidence that at least presents a question for the jury. She points to the computed tomography scan (CT scan) that demonstrated a bulging disc at the L4-5 level and medical reports indicating paraspinal muscle spasm. She relies also on her doctors' recommendations that she not lift over forty pounds and her own assertions that she no longer enjoys the recreational activities she used to enjoy.
Plaintiff had been in a previous automobile accident on August 9, 1989, in which she had apparently suffered an injury to her lower back. Copies of plaintiff's medical records indicate that she was being treated by three physicians for her injuries until February 1990. In October 1990 she exacerbated the injuries and underwent additional treatment until December 1990. A report from Dr. Sharetts in November 1990 noted lumbar
paraspinal spasm and indicated that "plaintiff is going back to
school, using a corset and a TENS unit [for] back pain and
radicular leg pain." On several occasions after the 1989
accident, doctors stated that plaintiff should not perform heavy
lifting. On April 5, 1991, she settled the case involving the
1989 accident.
Less than two months after her last visit occasioned by the
1989 accident, plaintiff returned for treatment for symptoms
allegedly arising from the February 24, 1991, accident.
Plaintiff claims that the more recent accident aggravated her
previously existing lower back condition. She also claims that
she sustained injuries in the 1991 accident which required her to
undergo therapy and rehabilitation. Plaintiff emphasizes that
because she cannot lift more than forty pounds, she cannot pursue
her nursing career; however, after the 1989 accident Dr.
Wulfsberg placed a thirty-five pound weight lifting restriction
on plaintiff.
Plaintiff had x-rays taken of the cervical and lumbosacral
spine on the day of this accident. Although she was diagnosed
with cervical and lumbosacral strain and sprain, those x-rays
revealed a normal cervical and lumbar spine and a normal sacrum.
Plaintiff again underwent a CT scan of the lumbar spine on
April 9, 1991. The results of this scan were reported as being
similar to the results of the one performed on October 18, 1990,
which predates the accident in question and which was normal, and
that the L4-5 small midline bulge revealed in the CT scan may be
of no clinical significance. Subsequent CT scans performed on
April 24, 1991, and December 19, 1991, revealed a normal cervical
spine. At no time following this accident did any clinical
examination indicate anything other than that plaintiff has a
moderate amount of cervical and paraspinal spasm, noted in one
report, and a relatively normal range of motions in the cervical
and lumbar regions.
The April 9, 1991, CT scan is dispositive. At that time Dr.
Partnow found only a "small midline bulge of the annulus at L4-5"
that "may not be of clinical significance." He compared it with
a CT scan performed in October 1990 that was reported as normal
and found the two scans to be similar.
The trial court's finding that plaintiff submitted no
objective proof of a serious injury is supported by adequate,
substantial and credible evidence in the record. Rova Farms
Resort, Inc. v. Investors Ins. Co. of Am.,
65 N.J. 474, 484
(1974). More importantly, since plaintiff sustained similar
injuries in a prior accident for which she had received
treatments until approximately two months before this accident,
she was required to submit competent proofs comparing the two
accidents. Polk v. Daconceicao,
268 N.J. Super. 568, 575 (App.
Div. 1993). We stated in Polk that
[a] diagnosis of aggravation of a pre-existing injury or condition must be based
upon a comparative analysis of the
plaintiff's residuals prior to the accident
with the injuries suffered in the automobile
accident at issue. This must encompass an
evaluation of the medical records of the
patient prior to the trauma with the
objective medical evidence existent post
trauma. Without a comparative analysis, the
conclusion that the pre-accident condition
has been aggravated must be deemed
insufficient to overcome the threshold of
N.J.S.A. 39:6A-8a.
[Ibid.]
Because plaintiff failed to submit such proof, the trial court
properly concluded that she failed to satisfy the standard
required by Polk.
We affirm the dismissal of all noneconomic claims asserted
against Jobes, Collins and the Figueroas substantially for the
reasons set forth by the trial court on March 31, 1994, and
October 7, 1994.
Footnote: 1 Gregory A. Smith's complaint was dismissed by a consent order. He has not appealed. Footnote: 2 North American Indemnity Company went into receivership, and at the time of the accident Henry was insured by the Arizona Property and Casualty Insurance Guaranty Fund.