on the financial bottom-line, it is not uncommon for motor vehicle insurance carriers to seek reimbursement of the PIP benefits it paid to its insured, pursuant to the provisions of N.J.S.A. 39:6A-9.1. N.J.S.A. 39:6A-9.1 provides:
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. 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. However, N.J.S.A. 39:6A-4.5 [emphasis added] provides: a. Any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits coverage mandated by section 4 of P.L.1972, c.70 (C.39:6A- 4), 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) shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident while operating an uninsured automobile. b. Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of R.S.39:4-50, section 2 of P.L.1981, c.512 (C.39:4-50.4a), or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident. c. Any person acting with specific intent of causing injury to himself or others in the operation or use of an automobile shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident arising from such conduct. In Camp v. Lummino, 352 N.J.Super. 414 (App.Div.2002), where the Appellate Division found that an injured intoxicated driver might be able to pursue a common law claim against a social host, a clear delineation was made by the court that N.J.S.A. 39:6A-4.5(b) still “implicates cases involving injuries or losses which are subject to coverage under Title 39 [the No- Fault Act].” In Rogers v. Carchesio, 366, N.J.Super. 181 (App.Div.2004), the Appellate Division noted that the statute’s bar against recovery of “economic loss”, would, by definition, include a bar against recovery of any “uncompensated loss of income or property, or other uncompensated expenses, including, but not limited to, medical expenses.” In Caviglia v. Royal Tours of America, 178 N.J. 460 (2004), the New Jersey Supreme Court denied a constitutional challenge to the N.J.S.A. 39:6A-4.5—imposed bar against recovery of non-economic damages. In coming to its finding that the statute did not violate due process or equal protection, the Supreme Court explored the background and purpose of its provisions. The Caviglia Court noted that, “In 1997, the Legislature comprehensively amended N.J.S.A. 39:6A-4.5 to bar three classes of people from suing for personal injuries in automobile accident cases: (a) persons who operate automobiles without insurance; (b) persons who drive while under the influence of alcohol or drugs; and (c) persons who act with the intent to injure others while driving.” Previously, under the Camp opinion and N.J.S.A. 39:6A-4.5(b), an intoxicated driver who pleaded guilty to DWI would be barred from seeking PIP benefits under Title 39. This scheme would appear to serve the public policy of providing a disincentive for potential intoxicated drivers: get injured while driving drunk, and you could end up paying for your own medical bills. However, in its recent decision in Walcott v. Allstate (decided April 13, 2005), the Appellate Division appears to have ignored its specific language in Camp, in finding that N.J.S.A. 39:6A-4.5(b) did not bar intoxicated drivers from seeking PIP benefits. The Walcott case involved an intoxicated driver who, after a guilty plea to DWI, sought PIP benefits from her automobile insurance carrier. The carrier refused to pay, citing her DWI conviction, and the apparently exclusionary language of N.J.S.A. 39:6A-4.5(b). The Appellate Division held that there was “no basis in the statutory scheme or legislative history to apply Section 4.5’s bar to the recovery by drunk drivers of economic and non-economic losses to PIP benefits as well.” This was, the Appellate Division reasoned, because “the plain language of [N.J.S.A. 39:6A-4.5(b)] bars a drunk driver, among others, only from having a “cause of action” for economic or non-economic losses, the former being defined as “uncompensated loss of income or property, or other uncompensated expenses including, but not limited to, medical expenses.” N.J.S.A. 39:6A-2(k) (emphasis added). However, plaintiff’s medical expenses in this case are compensable under her own insurance policy for PIP benefits, as required by N.J.S.A. 39:6A-4. Therefore, the losses for which she seeks recovery in this lawsuit are not uncompensated losses within the meaning of N.J.S.A. 39:6A- 4.5’s statutory bar.” Furthermore, the Appellate Division found “nothing in the legislative
history to suggest either that the current version of N.J.S.A. 39:6A-4.5 changed in any way the pre-AICRA requirement that PIP benefits be paid without regard to negligence, liability or fault of any kind except as provided by
N.J.S.A. 39:6A-7, or that this exclusive remedy for recovery of medical expenses was made dependent upon liability for claims against third parties otherwise barred under N.J.S.A. 39:6A-4.5.” In conclusion, the Walcott court noted that “The construction we give Section 4.5 is not only consistent with its clear language, but is in keeping, as well, with the statutory mandate that the Act be liberally construed so as to effectuate its purposes,
N.J.S.A. 39:6A-16. It also accords with the well-settled principle that “PIP coverage should be given the broadest application consistent with the statutory language,”… and any exception to its coverage must be “narrowly construed” consistent with that purpose and “the plain meaning of the language.” It would appear that the Walcott decision not only extends PIP coverage for intoxicated drivers (and thereby removes yet another disincentive for drunk drivers), but also opens the door for PIP carriers to, in turn, seek reimbursement for those PIP benefits. Arguably, this spreads the cost of injuries from drunk driving even wider, as those costs, and the litigation surrounding those costs, will cast an even wider net of parties.

– Andrew W. Li, Esq.