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New York Resident Injured As A Pedestrian In A New Jersey Accident Limited To PIP Benefits Under His New York Policy

By on October 16, 2020 in Coverage with 0 Comments

On January 30, 2019, plaintiff, Don Washington, drove his car from his home state of New York to North Bergen, New Jersey.  After shopping and leaving a store, he walked in a crosswalk towards his parked car when he was struck by a vehicle and injured.  The issue in Washington v. Progressive Insurance Company, 2020 N.J. Super. Unpub. LEXIS 1890 (App. Div. October 7, 2020), was whether the Deemer Statute required reformation of his insurance policy to increase his $50,000 PIP policy limits to New Jersey’s mandatory PIP limit of $250,000.

Plaintiff applied for and collected PIP benefits under his New York policy, which had only $50,000 in limits.  The defendant insurance company paid PIP benefits on plaintiff’s behalf but exhausted the policy limits.

Thereafter, plaintiff filed a complaint against his insurance company Progressive.  He argued that the carrier was authorized to conduct business and issue automobile insurance policies in New Jersey and claimed that the Deemer Statute (N.J.S.A. 17:28-1.4) applied and required reformation of his policy to provide coverage up to New Jersey’s mandatory policy limits, i.e. $250,000 (per N.J.S.A. 39:6A-4(a)).

The defendant Progressive filed a motion to dismiss the complaint in lieu of filing an Answer.  It argued that the Deemer Statute did not apply because the plaintiff was a pedestrian at the time of the accident.  Progressive relied upon the prior Appellate Division decision of Leggette v. Geico in which, under similar facts, the Appellate Division found that an out of state insurance policy is not deemed by N.J.S.A. 17:28-1.4 to provide PIP benefits when a named insured is injured by a New Jersey driver while a pedestrian.

The trial court judge heard argument on the defendant’s motion.  She found that the facts of this case mirrored those present in Leggette and, thus, that decision controlled.  Accordingly, she entered an Order dismissing the complaint and the plaintiff filed this appeal.

The Appellate Division agreed with its prior Leggette decision and the analysis therein.  The Court held that “[r]equiring defendant to provide greater PIP coverage than was purchased by plaintiff – its New York insured – simply because plaintiff used his car to cross the state line into New Jersey runs counter to the various legislative goals of the Deemer Statute.”  Further, the Court noted that none of the cases cited by the plaintiff “suggest that the Legislature intended to provide out-of-state residents with increased PIP benefits when injured as a pedestrian simply because they had driven their cars into New Jersey.”

The plaintiff tried to factually distinguish this case from Leggette because in this case, he was walking back to his car to drive away whereas in Leggette, the plaintiff was struck by the other driver after she had locked her car and walked away without any indication of her imminent return to use her car.  The Appellate Division stated that plaintiff’s “future unrealized intention to enter his car does not establish a ‘substantial nexus’ to the vehicle at the time he was injured for purposes of the Deemer Statute.”

Accordingly, the Appellate Division affirmed the trial court’s decision, dismissing the complaint.


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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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