SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2632-95T2
RUTGERS CASUALTY INSURANCE
COMPANY,
Plaintiff-Appellant,
v.
NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,
Defendant-Respondent.
_________________________________________________________________
Argued October 8, 1996 - Decided October 24, 1996
Before Judges Stern, Humphreys and Wecker.See footnote 1
On appeal from the Superior Court of New
Jersey, Law Division, Camden County.
Susan L. Moreinis argued the cause for
appellant (Ms. Moreinis, on the brief).
Robert R. Nicodemo, III, argued the cause
for respondent (Yampell & Nicodemo,
attorneys; Richard V. Cosentino, on the
brief).
PER CURIAM
Carmen Klass was eligible for no fault PIP benefits as an "eligible injured person" under New Jersey Manufacturers' (NJM) policy covering the car in which she was riding and the Rutgers Casualty (Rutgers) policy in which she was named insured.
Rutgers appeals from the grant of summary judgment to NJM
dismissing Rutgers' declaratory judgment action seeking equitable
pro-rata contribution from NJM and requiring its participation in
arbitration. Rutgers claims entitlement to such relief under
N.J.S.A. 39:6A-11 (section 11) and argues that enactment of
N.J.S.A. 39:6A-4.2 (section 4.2) has no effect on NJM's
obligations under section 11.
NJM defends the summary judgment under N.J.S.A. 39:6A-4.2,
contending that our opinion in USF&G v. Industrial Indem. Co.,
264 N.J. Super. 379 (App. Div. 1993), is distinguishable because
the injured person there was not a named insured under either
policy (whereas here she is a named insured under the Rutgers
policy) and that, in any event, our approval in USF&G of
Cokenakes v. Ohio Casualty Ins. Co.,
208 N.J. Super. 308, 313-14
(Law Div. 1985), was erroneous as a matter of policy and
legislative intent.
NJM contends that section 4.2 makes the named insured's
carrier solely responsible unless the PIP benefits are exhausted;
Rutgers argues that the section merely assures the obligation of
the primary carrier to pay PIP benefits while the question of
contribution is arbitrated. In USF&G, supra, 264 N.J. Super. at
382, decided after the 1990 amendment to section 4.2, we held
that a primary carrier may seek contribution under section 11
from "other available PIP coverage" and that the enactment of
section 4.2 did not affect that obligation. We held that "the
purpose of § 4.2 was to identify a source for the immediate
payment of PIP benefits, thereby insulating covered persons from
delays caused by squabbles between insurers." Id. at 384. We
adhere to that holding and conclude that USF&G governs even when
the insured party is a named insured, notwithstanding that
section 4.2 expressly provides that the PIP "coverage of the
named insured shall be the primary coverage for the named insured
...." In these circumstances that carrier is "primary" but may
nevertheless seek contribution under section 11 even though the
PIP payments did not exceed the policy limits.
Reversed.
Footnote: 1Judge Wecker did not participate in the argument, but with the consent of the parties has participated in the disposition of the appeal.