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Koff v. Carrubba5/30/1996
The opinion of the court was delivered by BROCHIN, J.A.D.
The issue to be decided on this appeal is whether a motorcyclist's tort claim for personal injuries sustained when his motorcycle collided with an automobile is subject to the verbal threshold, N.J.S.A. 39:6A-8(a), because he chose that option for a liability policy which insured only his personally owned automobile, not his motorcycle. We hold that his personal injury claim is subject to the verbal threshold, and we therefore reverse.
While plaintiff Steven J. Koff was riding his motorcycle along one of the driving lanes of the shopping mall where the store in which he worked was located, defendant Barbara A. Carrubba was backing her car out of one of the mall parking spaces. The two vehicles collided. Plaintiff was propelled over the trunk of defendant's car. He testified that he landed "square on both feet, heels first, . . . came down on knees," and then fell forward on his hands.
Plaintiff instituted this suit to recover for his resulting injuries. The trial court granted his pretrial motion for partial summary judgment, striking defendant's verbal threshold defense. The case was then tried to its Conclusion and the jury returned a verdict in plaintiff's favor. On appeal, defendant challenges only the trial court's ruling that plaintiff's claim is not subject to the verbal threshold.
When the accident occurred, plaintiff was the named insured both under a motorcycle policy and under a separate automobile policy. An insurance policy insuring only a motorcycle does not subject the insured's personal injury claims to the verbal threshold. N.J.S.A. 39:6A-2, -8. Plaintiff's automobile was not involved in the accident. Defendant argues that the verbal threshold applies nonetheless because plaintiff selected the verbal threshold option for his automobile policy.
As we pointed out in Weiss v. Thomas, 274 N.J. Super. 37, 643 A.2d 29 (App. Div. 1994), quoting N.J.S.A. 39:6A-8, where a defendant is an "'owner, registrant, operator or occupant of an automobile to which' personal injury protection coverage applies," or a "'person . . . legally responsible for his acts or omissions [i.e., acts or omissions of the owner, registrant, etc.],'" Id. at 41-42, then the plaintiff's personal injury claims are subject to the verbal threshold, N.J.S.A. 39:6A-8a, provided the plaintiff meets two tests. The plaintiff's claims will be subject to the verbal threshold if (1) the plaintiff is, or is treated as if he or she were, the owner of an automobile that is insured under a New Jersey automobile liability insurance policy for which the verbal threshold option has been selected, and (2) the plaintiff is either a person required to maintain Personal Injury Protection (PIP) coverage because he or she is the "owner . . of an automobile registered or principally garaged in this State," N.J.S.A. 39:6A-8a, -3; see also N.J.S.A. 39:6B-1, -2, or, alternatively, is a person who has the right to receive PIP benefits pursuant to N.J.S.A. 39:6A-4. A person has the right to receive PIP benefits pursuant to N.J.S.A. 39:6A-4 if (1) he or she is the named insured under a policy providing PIP benefits, or is a family member residing with such a named insured, and (2) has suffered an injury as the result of an accident which occurred (a) while he or she was occupying, entering or leaving any automobile or (b) while he or she was a pedestrian if the injury was caused by an automobile or by an object propelled by or from an automobile. A person who is neither a named insured under a New Jersey automobile liability policy nor a family member residing with such a named insured is entitled to receive PIP benefits only for an injury (1)
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