recovery of new jersey pip and medpay

Transcription

RECOVERY OF NEW JERSEY PIP AND
MEDPAY BENEFIT PAYMENTS
Revised February 2013
Steven G. Kraus, Esq., CSRP, LL.M. (Insurance Law)
Law Offices of Steven G. Kraus
122 Mount Bethel Road
Warren, NJ 07059
908-561-4240 / 908-561-2990 FAX
steven.kraus@subrogationlawyer.com
www.subrogationlawyer.com
© Steven G. Kraus 2013
OBJECTIVES
1. MedPay Subrogation
2. Workers Compensation
3. Concurrent PIP Coverage and Contribution
4. No PIP Coverage for the Accident
5. PIP Reimbursement
Slide 2
OVERVIEW
Through the use of the Application for PIP Benefits,
police reports, statutes, administrative material, vehicle
images, license plates and websites, we are going to
analyze common motor vehicle accidents to illustrate
when recovery is available.
Slide 3
THE AUTOMOBILE PIP STATUTE
39:6A-4. Personal injury protection coverage, regardless of fault
Except as provided by section 45 of P.L.2003, c. 89 (C.39:6A-3.3) and section 4 of P.L.1998, c. 21 (C.
39:6A-3.1), every standard automobile liability insurance policy issued or renewed on or after the
effective date of P.L.1998, c. 21 (C.39:6A-1.1 et al.) shall contain personal injury protection benefits
for the payment of benefits without regard to negligence, liability or fault of any kind, to the named
insured and members of his family residing in his household who sustain bodily injury as a result of
an accident while occupying, entering into, alighting from or using an automobile, or as a pedestrian,
caused by an automobile or by an object propelled by or from an automobile, and to other persons
sustaining bodily injury while occupying, entering into, alighting from or using the automobile of the
named insured, with permission of the named insured.
Slide 4
N.J.S.A. 39:6A-7 EXCLUSIONS
a. Insurers may exclude a person from benefits under sections 4 and 10 of P.L.1972, c. 70 (C.
39:6A-4 and 39:6A-10), medical expense benefits provided in section 4 of P.L.1998, c. 21 (C.
39:6A-3. 1) and benefits provided in section 45 of P.L.2003, c. 89 (C.39:6A-3.3) if that person's
conduct contributed to his personal injuries or death occurred in any of the following ways:
(1) while committing a high misdemeanor or felony or seeking to avoid lawful apprehension or
arrest by a police officer; or
(2) while acting with specific intent of causing injury or damage to himself or others.
b. An insurer may also exclude from the benefits provided in sections 4 and 10 of P.L.1972, c. 70
(C.39:6A-4 and 39:6A-10) , the medical expense benefits provided in section 4 of P.L.1998, c.
21 (C.39:6A-3.1) and benefits provided in section 45 of P.L.2003, c. 89 (C.39:6A-3.3) any
person having incurred injuries or death, who, at the time of the accident:
(1) was the owner or registrant of an automobile registered or principally garaged in this State
that was being operated without personal injury protection coverage;
(2) was occupying or operating an automobile without the permission of the owner or other
named insured
Slide 5
N.J.S.A. 39:6A-7 EXCLUSIONS
(CONT’D)
(3) Host-Passenger Exclusion:
was a person other than the named insured or a member of the named insured's family
residing in his household, if that person is entitled to coverage under section 4 or section 10
of P.L.1972, c. 70 (C.39:6A-4 or 39:6A-10), or both, section 4 of P.L.1998, c. 21 (C.39:6A-3.1)
or section 45 of P.L.2003, c. 89 (C.39:6A-3.3), as a named insured or member of the named
insured's family residing in his household under the terms of another policy; or
(4) Follow the Family Exclusion:
was a member of the named insured's family residing in the named insured's household, if
that person is entitled to coverage under section 4 or section 10 of P.L.1972, c. 70 (C.
39:6A-4 or 39:6A-10), or both, section 4 of P.L.1998, c. 21 (C.39:6A-3.1) or section 45 of P.L.
2003, c. 89 (C.39:6A-3.3) as a named insured under the terms of another policy.
Slide 6
STRANGER PEDESTRIAN PIP
NON-AUTOMOBILE MOTOR VEHICLES
17:28-1.3. Coverage for pedestrians
Every liability insurance policy issued in this State on a motor vehicle, exclusive of an automobile as
defined in section 2 of P.L. 1972, c. 70 (C. 39:6A-2), but including a motorcycle, or on a motorized
bicycle, insuring against loss resulting from liability imposed by law for bodily injury, death, and
property damage sustained by any person arising out of the ownership, operation, maintenance, or
use of a motor vehicle or motorized bicycle shall provide personal injury protection coverage
benefits, in accordance with section 4 of P.L. 1972, c. 70 (C. 39:6A-4), to pedestrians who sustain
bodily injury in the State caused by the named insured's motor vehicle or motorized bicycle or by
being struck by an object propelled by or from the motor vehicle or motorized bicycle.
Reference: Police Report 3
Slide 7
STRANGER PEDESTRIAN PIP - PLIGA/UCJ
N.J.S.A. 39:86.1
When any person qualified to receive payments under the provisions of the "Unsatisfied Claim and
Judgment Fund Law" suffers bodily injury or death as a pedestrian, as defined in section 2 of P.L.
1972, c. 70 (C. 39:6A-2), caused by a motor vehicle, including an automobile as defined in section 2
of P.L. 1972, c. 70 (C. 39:6A-2), and a motorcycle, or by an object propelled therefrom, or arising out
of an accident while occupying, entering into, alighting from, or using an automobile, registered or
principally garaged in this State for which personal injury protection benefits under the "New Jersey
Automobile Reparation Reform Act," P.L.1972, c.70 (C.39:6A-1 et seq.), or section 19 of P.L. 1983, c.
362 (C. 17:28-1.3), would be payable to such person if personal injury protection coverage were in
force and the damages resulting from such accident or death are not satisfied due to the personal
injury protection coverage not being in effect with respect to such accident, or when a pedestrian
suffers bodily injury as provided by section 35 of P.L. 2003, c. 89 (C. 39:6-86.7) then in such event
the Unsatisfied Claim and Judgment Fund shall provide, under the following conditions, the
following benefits:
N.J.S.A. 39:86.7
The Unsatisfied Claim and Judgment Fund created pursuant to P.L. 1952, c. 174 (C. 39:6-61 et seq.)
shall provide personal injury protection benefits pursuant to section 7 of P.L. 1972, c. 198 (C.
39:6-86.1) to a pedestrian sustaining bodily injury in this State caused by an automobile, other than
to a named insured or a member of the named insured's family residing in his household, if that
pedestrian is entitled to personal injury protection coverage under an automobile insurance policy.
Reference: Police Reports 4, 9
Slide 8
THE BUS PIP STATUTE (MEB)
17:28-1.6. Owner or operator of motor bus required to maintain nofault medical expense benefits for passengers
a. Every owner, registered owner or operator of a motor bus registered or principally
garaged in this State shall maintain medical expense benefits coverage, under
provisions approved by the commissioner, for the payment of benefits without regard
to negligence, liability or fault of any kind, to any passenger who sustained bodily
injury as a result of an accident while occupying, entering into or alighting from a
motor bus.
b.Medical expense benefits coverage shall include the payment of reasonable medical
expenses in an amount not to exceed $250,000 per person per accident. In event of
death, payments shall be made to the estate of the decedent.
Slide 9
EXTENDED MEDICAL EXPENSE BENEFITS
COVERAGE - MEDPAY
N.J.A.C. 11:3-7.3 Personal injury protection policy forms or
endorsements
(b) Each policy form or endorsement covering an automobile as defined at N.J.S.A.
39:6A-2 shall include excess medical payments coverage, corresponding to Section II,
Extended Medical Expense Benefits Coverage of the personal automobile policy.
Insurers must include a minimum coverage of $ 1,000 and may offer coverage of $
10,000.
New Jersey Circular Letter Automobile 9 (February 22, 1973) Page 9
“Medical payments coverage with a minimum of $1,000 per person must be supplied and
will be excess over other collectible insurance, including PIP benefits, and will be
subrogable.
There are situations where an injured person might not be covered under PIP such as
injured while riding in a truck, bus or a cab, for example.”
Reference: Police Reports 6, 11, 12, 13
Slide 10
CONTRIBUTION AMONG
INSURERS
39:6A-11. Contribution among insurers
If two or more insurers are liable to pay benefits under sections 4 and 10 of P.L.1972, c.
70 (C.39:6A-4 and 39:6A-10) under a standard automobile insurance policy for the
same bodily injury, or death, of any one person, the maximum amount payable shall be
as specified in those sections 4 and 10 of P.L.1972, c. 70 (C.39:6A-4 and 39:6A-10) ,
section 4 of P.L.1998, c. 21 (C.39:6A-3.1) and section 45 of P.L.2003, c. 89 (C.39:6A-3.3),
respectively, if additional first party coverage applies and any insurer paying the benefits
shall be entitled to recover from each of the other insurers, only by inter-company
arbitration or inter-company agreement, an equitable pro-rata share of the benefits paid.
Slide 11
WORKERS COMP AND PIP
39:6A-6. Collateral source
The benefits provided in sections 4 and 10 of P.L.1972, c. 70 (C.39:6A-4 and 39:6A-10) , the medical
expense benefits provided in section 4 of P.L.1998, c. 21 (C.39:6A-3.1) and the benefits provided in
section 45 of P.L.2003, c. 89 (C.39:6A-3.3) shall be payable as loss accrues, upon written notice of
such loss and without regard to collateral sources, except that benefits, collectible under workers'
compensation insurance, employees' temporary disability benefit statutes, Medicare provided under
federal law, and benefits, in fact collected, that are provided under federal law to active and retired
military personnel shall be deducted from the benefits collectible under sections 4 and 10 of P.L.
1972, c. 70 (C.39:6A-4 and 39:6A-10) , the medical expense benefits provided in section 4 of P.L.
1998, c. 21 (C.39:6A-3.1) and the benefits provided in section 45 of P.L.2003, c. 89 (C.39:6A-3.3).
If an insurer has paid those benefits and the insured is entitled to, but has failed to apply for, workers'
compensation benefits or employees' temporary disability benefits, the insurer may immediately
apply to the provider of workers' compensation benefits or of employees' temporary disability
benefits for a reimbursement of any benefits pursuant to sections 4 and 10 of P.L.1972, c. 70 (C.
39:6A-4 and 39:6A-10) , medical expense benefits pursuant to section 4 of P.L.1998, c. 21 (C.
39:6A-3.1) or benefits pursuant to section 45 of P.L.2003, c. 89 (C.39:6A-3.3) it has paid.
Reference: Police Reports 7, 14
Slide 12
PIP PAYMENTS MADE WHERE
THERE IS NO PIP COVERAGE
Where PIP payments have been made but there was no PIP coverage for the accident
under the policy, payments can be recovered by contribution from the insurance carrier
that does provide the PIP coverage. Pratts v. Hulme, 2007 N.J. Super Unpub. LEXIS 665, 2007
WL 4441217 (App. Div. 2007). The most common situations are:
1. The injured person was a passenger in a taxi, truck, livery vehicle or bus*,
2. The person was injured as a pedestrian when the striking vehicle was a taxi, truck,
livery cab or bus**,
3. When the Deemer Statute does not apply to convert an out of state policy to a New
Jersey policy***.
*Police Reports 5,6,11,12, 13
Slide 13
**Police Reports 4, 9
***Police Reports 8, 15, 17
PIP REIMBURSEMENT
There is a limited right for a PIP carrier to recover the amount of PIP payments, including
claims expenses, from a tortfeasor or their insurance carrier which does not participate in
the New Jersey PIP system because:
1. The tortfeasor is not a motor vehicle; commonly a tavern*,
2. The motor vehicle is not required to maintain New Jersey PIP benefits; a truck, taxi,
livery vehicle, school bus, or out of state registered and garaged vehicle to which The
Deemer Statute does not apply, or**
3. The tortfeasor is uninsured***.
*Police Reports. 18, 19, 20, 21
Slide 14
**Police Reports. 1, 6, 11,12, 13, 15, 17, 22
***Police Report 23
THE PIP REIMBURSEMENT
STATUTE
39:6A-9.1. Recovery of personal injury protection benefits from tortfeasor
a) An insurer, health maintenance organization or governmental agency paying benefits pursuant
to subsection a., b. or d. of section 13 of P.L.1983, c.362 (C.39:6A-4.3), personal injury
protection benefits in accordance with section 4 or section 10 of P.L.1972, c.70 (C.39:6A-4
or 39:6A-10), medical expense benefits pursuant to section 4 of P.L.1998, c.21 (C.39:6A-3.1)
or benefits pursuant to section 45 of P.L.2003, c.89 (C.39:6A-3.3), as a result of an accident
occurring within this State, shall, within two years of the filing of the claim, have the right to
recover the amount of payments from any tortfeasor who was not, at the time of the
accident, required to maintain personal injury protection or medical expense benefits
coverage, other than for pedestrians, under the laws of this State, including personal injury
protection coverage required to be provided in accordance with section 18 of P.L.1985, c.520
(C.17:28-1.4), or although required did not maintain personal injury protection or medical
expense benefits coverage at the time of the accident.
Slide 15
THE PIP REIMBURSEMENT
STATUTE (CONT’D)
39:6A-9.1. Recovery of personal injury protection benefits from tortfeasor
b) In the case of an accident occurring in this State involving an insured tortfeasor, the
determination as to whether an insurer, health maintenance organization or governmental
agency is legally entitled to recover the amount of payments and the amount of recovery,
including the costs of processing benefit claims and enforcing rights granted under this
section, shall be made against the insurer of the tortfeasor, and shall be by agreement of the
involved parties or, upon failing to agree, by arbitration. Any recovery by an insurer, health
maintenance organization or governmental agency pursuant to this subsection shall be
subject to any claim against the insured tortfeasor's insurer by the injured party and shall be
paid only after satisfaction of that claim, up to the limits of the insured tortfeasor's motor
vehicle or other liability insurance policy.
L. 1983, c. 362, § 20; amended 1985, c. 520, § 17; 1990, c. 8, § 10; 1998, c. 21, § 13; 2003, c. 89, §
53; 2011, c. 11, § 1, effective Jan. 28, 2011.
Slide 16
VEHICLES REQUIRED TO MAINTAIN NJ PIP
COVERAGE
1. Any “automobile” as defined by N.J.S.A. 39:6A-2(a). As a general matter, every
motor vehicle that looks like a car or a station wagon, whether used for business
or personal use, will initially meet the definition of "automobile" and be required
to maintain PIP coverage. Wagner v.Transamerica, 167 N.J. Super. 25 (App. Div.
1979), Favell v. Hernandez, 261 N.J. Super. 348 (Law Div. 1992).
2. Any “motor bus” as defined by N.J.S.A. 39:1-1, N.J.S.A 17:28-1.5 and N.J.S.A.
48:16-13.
3. New Jersey insurance requirements only apply to motor vehicles registered or
principally garaged in New Jersey. N.J.S.A. 39:6A-3 and N.J.S.A. 39:6B-1.
4. Any out of state motor vehicle subject to The Deemer Statute, N.J.S.A. 17:28-1.4.
Slide 17
DEFINITION OF AUTOMOBILE
39:6A-2a. “Automobile” means a private passenger automobile of a private
passenger or station wagon type that is owned or hired and is neither used as a public
or livery conveyance for passengers nor rented to others with a driver; and a motor
vehicle with a pickup body, a delivery sedan, a van, or a panel truck or a camper type
vehicle used for recreational purposes owned by an individual or by husband and wife
who are residents of the same household, not customarily used in the occupation,
profession or business of the insured other than farming or ranching. An automobile
owned by a farm family copartnership or corporation, which is principally garaged on a
farm or ranch and otherwise meets the definitions contained in this section, shall be
considered a private passenger automobile owned by two or more relatives resident in
the same household.
Slide 18
FORD CROWN VICTORIA
• Meets the definition of an
“automobile”
• No cause of action for PIP
reimbursement
Slide 19
FORD CROWN VICTORIA
• No longer meets the definition of an “automobile”
because it is rented with a driver
• PIP reimbursement available
Slide 20
FORD CROWN VICTORIA
TAXI CAB
• Does not meet the definition of “automobile”
because it is rented with a driver
• PIP reimbursement available
Slide 21
FORD CROWN VICTORIA
• Meets the definition of an automobile. Immune
from PIP reimbursement by Title 59 immunity
• Owned by a New Jersey public entity
Slide 22
GMC TRUCK SAVANNAH
CARGO CONFIGURATION
• As a commercial vehicle, an X plate, it does
not meet the definition of an automobile
• However, if it has an X Farmer plate, the
statute defines it as an “automobile”
Slide 23
FORD F-350 PICKUP TRUCK
• A pickup truck owned by an individual used for
personal use meets the definition of an
automobile
• A pickup truck used for business use, other
than farming or ranching, does not meet the
definition of an automobile
Slide 24
WHAT IS A “BUS”?
N.J.S.A. 39:1-1
“Omnibus” includes all motor vehicles used for the transportation
of passengers for hire, except commuter vans and vehicles used in
ridesharing arrangements and school buses, if the same are not
otherwise used in the transportation of passengers for hire.
Slide 25
BUSES REQUIRED
TO HAVE BUS PIP (MEB)
Slide 26
WHAT BUSES DO NOT CARRY
BUS PIP (MEB)?
N.J.S.A. 17:28-1.5
“Motor bus” means an omnibus, as defined in R.S. 39:1-1, except that “motor
bus” shall not include:
a. Vehicles engaged in the transportation of passengers for hire in the manner and form commonly
called taxicab service unless such service becomes or is held out to be regular service between
stated termini;
b.Hotel buses used exclusively for the transportation of hotel patrons to or from local railroad or
other common carrier stations including local airports;
c. Buses operated for the transportation of enrolled children and adults only when serving as
chaperones to or from a school, school connected activity, day camp, summer day camp, nursery
school, child care center, pre-school center or other similar places of education, including “School
Vehicle Type I” and “School Vehicle Type II” as defined in R.S. 39:1-1;
Slide 27
WHAT BUSES DO NOT CARRY
BUS PIP (MEB)?
N.J.S.A. 17:28-1.5 (CONT’D)
“Motor bus” means an omnibus, as defined in R.S. 39:1-1, except that “motor
bus” shall not include:
d.Any autobus with a carrying capacity of not more than 13 passengers operated under municipal
consent upon a route established wholly within the limits of a single municipality or with a
carrying capacity of not more than 20 passengers operated under municipal consent upon a route
established wholly within the limits of not more than four contiguous municipalities within any
county of the fifth or sixth class, which route in either case does not in whole or in part parallel
upon the same street the line of any street railway or traction railway or any other autobus route;
e. Autocabs, limousines or livery services as defined in R.S. 48:16-13, unless such service becomes or
is held out to be regular service between stated termini;
f. Any vehicle used in a “ridesharing” arrangement, as defined by the “New Jersey Ridesharing Act of
1981,” P.L.1981, c. 413 (C. 27:26-1 et al.);
g. Any motor bus owned and operated by the New Jersey Transit Corporation; or
h.Any special paratransit vehicle as defined in R.S. 48:4-1.
Slide 28
AUTOCAB: N.J.S.A. 48:16-13
“Autocab” means a limousine.
“Limousine” means and includes any automobile or motor car used in the business of carrying passengers for
hire to provide prearranged passenger transportation at a premium fare on a dedicated, nonscheduled,
charter basis that is not conducted on a regular route and with a seating capacity of no more than 14
passengers, not including the driver, provided, that such a vehicle is certified by the manufacturer of the
original vehicle and the second-stage manufacturer, if applicable, to conform to all applicable Federal Motor
Vehicle Safety Standards promulgated by the United States Department of Transportation pursuant to 49 CFR
Part 571 (49 CFR 571.1 et seq.) and 49 CFR Part 567 (49 CFR 567.1 et seq.). In addition, a “Vehicle Emission
Control Information” label, which contains the name and trademark of the manufacturer and an unconditional
statement of compliance with the emission requirements of the Environmental Protection Agency, shall be
present on the vehicle. Nothing in this article contained shall be construed to include taxicabs, hotel buses,
buses employed solely in transporting school children or teachers, vehicles owned and operated directly or
indirectly by businesses engaged in the practice of mortuary science when those vehicles are used exclusively
for providing transportation related to the provision of funeral services, autobuses which are subject to the
jurisdiction of the Department of Transportation, or interstate autobuses required by federal or State law or
regulations of the Department of Transportation to carry insurance against loss from liability imposed by law
on account of bodily injury or death.
“Limousine or livery service” means and includes the business of carrying passengers
for hire by limousines.
Slide 29
BUSES THAT DO NOT
HAVE TO HAVE BUS PIP (MEB)
Slide 30
THE DEEMER STATUTE
N.J.S.A. 17:28-1.4
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 P.L.1972, c. 70 (C.39:6A-4) or section 19 of P.L.1983, c. 362 (C.17:28-1.3) for any New Jersey resident who is
not required to maintain personal injury protection coverage pursuant to section 4 of P.L.1972, c. 70 (C.
39:6A-4) or section 4 of P.L.1998, c. 21(C. 39:6A-3.1) and who is not otherwise eligible for such benefits,
whenever the automobile or motor vehicle insured under the policy is used or operated in this State.
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 P.L.1972, c. 197 (C.39:6B-1) or section 3 of P.L.1972, c. 70 (C.
39:6A-3), the uninsured motorist insurance requirements of subsection a. of section 2 of P.L.1968, c. 385 (C.
17:28-1.1), and personal injury protection benefits coverage pursuant to section 4 of P.L.1972, c. 70 (C.
39:6A-4) or of section 19 of P.L.1983, c. 362 (C.17:28-1.3), whenever the automobile or motor vehicle insured
under the policy is used or operated in this State.
Slide 31
PIP REIMBURSEMENT RECOVERY
GUIDELINES – PART I
• The Statute of Limitations is 2 years from the date that the PIP claim is filed.
• Generally a claim is filed when the signed PIP Application is received. NJM v. Holger
Trucking Corp., 417 N.J. Super. 393, 9 A.3d 1095 (App. Div. 2011)
• To avoid any issues as to the exact date the PIP claim is filed, the best practice is to use
the date of loss as the date that begins the 2 year limitations period.
• For an insured defendant, the Statute of Limitations is tolled when a formal demand for
arbitration is served on the liability insurance carrier. New Jersey Automobile Full Insurance
Underwriting Association By and Through CSC v. Liberty Mutual Ins. Co., 270 N.J. Super. 49, 636
A.2d 550 (App. Div. 1994) or when the liability carrier agrees to pay the claim.
• If the liability carrier is not a member of Arbitration Forums, Inc., the best practice is to
serve the Demand for Arbitration and file a Complaint within the 2 year time period.
Slide 32
GUIDELINES – PART II
• If the defendant is uninsured or self-insured, the Statute of Limitations is tolled when a
Complaint is filed or the defendant agrees to pay the claim.
• Once the Statute of Limitations is tolled, the PIP carrier can make a claim for
reimbursement of later PIP benefits at any time. Allstate Ins. Co. v. Universal Underwriters
Ins. Co., 330 N.J. Super 628, 750 A.2d 223 (App. Div. 2000).
• The PIP reimbursement claim is paid from the bodily injury liability limit of the
tortfeasor's insurance policy. IFA Insurance Company v.Waitt, 270 N.J. Super. 621 (App.
Div.), cert. Den. 136 N.J. 295 (1994)
• The defendant does not have to be a motor vehicle.
State Farm Mut. Auto. Ins. Co. v
Licensed Beverage Ins. Exchange, 146 N.J. 1, 679 A.2d 620 (1996).
• For an insured defendant, the cause of action is only against the insurance carrier and
excess carrier. Liberty Mutual Ins. Co. v. Selective Ins. Co., 271 N.J. Super. 569, 638 A.2d 1389
(Law 1993), aff’d 271 N.J. Super 454, 638 A. 2d. 1330 (App. Div. 1994).
Slide 33
GUIDELINES – PART III
• An insured defendant has no personal liability for a PIP reimbursement claim. The cause
of action is only against the liability insurance carrier. Sherman v. Garcia Const., Inc., 251
N.J. Super. 352, 598 A. 2.d 242 (App. Div. 1991).
• A defendant is only immune from a PIP reimbursement claim if the medical payments
coverage provided by their policy is required by New Jersey law. Drive New Jersey Ins.
Co. v. Gisis, 420 N.J. Super. 295, 21 A.3d 216 (App. Div. 2011).
• For claims arising after January 28, 2011, any bodily injury claim has priority over any PIP
reimbursement claim. The PIP reimbursement claim can only be paid after “satisfaction”
of any injured party’s claim.
• The insured cannot release the PIP reimbursement claim as a part of the settlement of
the bodily injury claim. Buoni v. Browning-Ferris Industries, 219 N.J. Super. 96, 529 A.2d 1044
(Law. 1987).
Slide 34
GUIDELINES – PART IV
• The elements of damages are PIP medical benefits, income continuation benefits,
essential service benefits, death benefits and funeral expense benefits payments and
claims expenses such as IMEs and costs to defend PIP provider arbitrations to the extent
that the defense is necessary and reasonable.
• The PIP reimbursement statute specifically provides that an element of damages is “the
costs of processing benefits claims and enforcing rights granted under this section.”
• The attorney’s fee for the PIP reimbursement recovery is not an element of damages.
David v. Government Employees Ins. Co., 360 N.J. Super. 127, 821 A.2d 564 (App. Div. 2003).
Slide 35

recovery of new jersey pip and medpay

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