Re: D'Aloia v. George

To The Companies In Interest:

In D'Aloia v. George, Appellate Division, October 12, 2004, the Superior Court of New Jersey held that the Automobile Insurance Cost Reduction Act of 1998 (AICRA) did not legislatively overrule Roig v. Kelsey 135 N.J. 500 (1994) and regardless of whether a plaintiff is covered by the verbal threshold or the "no threshold" option, lawsuits to recover uncompensated medical expenses in the form of PIP copayments and deductibles are not permitted.

Roig construed N.J.S.A. 39:6A-12 as prohibiting lawsuits to recover PIP deductibles and copayments. The first paragraph of this section provides that in a lawsuit to recover damages for injuries caused by an auto accident, evidence of amounts paid for PIP deductibles and copayments is not admissible. The third paragraph of the section provides, generally, that the injured party can recover "uncompensated economic loss" from the tortfeasor. Roig concluded that the Legislature intended to prohibit lawsuits to recover PIP deductibles and copayments, despite the general language in paragraph 3 of section 12 permitting the right to sue for "uncompensated economic loss." The Supreme Court then said: "If the Legislature disagrees with our interpretation of its intent, it is, of course, empowered to enact clarifying legislation."

AICRA was subsequently amended, but the Legislature did not change the provision of section 12 on which Roig was based. However, the Legislature did amend 39:6A-2k, the definition section of AICRA, to specifically include "medical expenses" in the definition of "economic loss":

"Economic loss" means uncompensated loss of income or property, or other uncompensated expenses, including, but not limited to, medical expenses.

D'Aloia concludes that reading sections 12 and 2k in pari materia makes clear that "economic loss," which section 12 permits an accident victim to recover from the tortfeasor, includes uncompensated medical expenses. However, the AICRA amendments left unchanged the limitation in the first paragraph of section 12, which provides that the amounts of PIP deductibles and copayments are not admissible in auto accident lawsuits. If they are not admissible, it logically follows that they are not recoverable.

D'Aloia notes, if the amendment to section 2k were intended as the legislative response to Roig, it would have specifically referenced PIP copayments and deductibles. Section 12 would have also been amended to eliminate the provision that makes those expenses inadmissible. The Legislature did not make either of those changes.

Accordingly, the court held that a plaintiff is not permitted to recover uncompensated medical expenses in the form of PIP copayments and deductibles.

Should you have any questions about the above, please do not hesitate to contact me

Very truly yours,

Glendon E. Danks

For further information, please contact Glendon E. Danks, Esquire.
Telephone: 856-751-5285
E-mail: danks@bbs-law.com