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PRUDENTIAL PROP. & CAS. INS. CO. v. LIBERTY MUT. I

October 17, 1994

PRUDENTIAL PROPERTY AND CASUALTY INS. CO.
v.
LIBERTY MUTUAL INS. CO. AND KEVIN BURK SULLIVAN



The opinion of the court was delivered by: EDMUND V. LUDWIG

 Ludwig, J.

 October 17, 1994

 This is a declaratory judgment action to determine the obligation to pay first-party motor vehicle insurance benefits, citing the New Jersey "deemer" statute, N.J.S.A. 17:28-1.4. Originally filed in the Montgomery County Court of Common Pleas, it was duly removed, Order, March 17, 1994, and the benefits claimant was added as a defendant, as required by Pennsylvania law. See General Refractories Co. v. American Mutual Liability Ins.Co., 678 F. Supp. 104, 105 (E.D. Pa. 1987); Vale Chemical Co. v. Hartford Accident & Indem. Co., 512 Pa. 290, 293-94, 516 A.2d 684, 686 (1986). Cross-motions for summary judgment were filed, Fed. R. Civ. P. 56, based on an agreed set of facts. Jurisdiction is diversity. 28 U.S.C. § 1332.

 I.

 On August 2, 1992, defendant Sullivan was injured when the car he was operating went out of control and collided with a motorist callbox on the Atlantic City Expressway. His medical expenses, in excess of $ 46,000 to date, are continuing. *fn1" At the time of the accident, he was living in Pennsylvania with his mother, who had an insurance policy with plaintiff Prudential Property and Casualty Insurance Company covering her two cars. Both cars were registered in Pennsylvania. The car involved in the accident, which belonged to another person and was insured by defendant Liberty Mutual Insurance Company, was also registered in Pennsylvania.

 II.

 The issue raised in this action is which insurer is liable for defendant Sullivan's medical expenses. *fn2" Initially, plaintiff Prudential made a payment of $ 10,000, which it concedes defendant Sullivan was entitled to as a resident/relative under his mother's policy. *fn3" It does not request reimbursement of that amount. Plaintiff's motion for summary judgment at 2.

 Under Pennsylvania rules, which govern this court's choice of state law in a diversity action, the substantive law of New Jersey would be applicable, given that the accident occurred in that state. *fn4" Cavallaro v. Williams, 530 F.2d 473, 475 (3d Cir. 1975) (law of place of collision usually applies because Pennsylvania considers the place of injury "to be the jurisdiction most concerned with the duty of care owed by an automobile operator to others lawfully on the highway"); Smith v. Walter C. Best, Inc., 756 F. Supp. 878, 880-81 (W.D. Pa. 1990) (citing Restatement (Second) of Torts §§ 145, 146 (1971)) (in a personal injury action the law of the place of injury governs unless another state has a more significant relationship); Laconis v. Burlington County Bridge Comm'n, 400 Pa. Super. 483, 489-92, 583 A.2d 1218, 1221-23 (1990) (same).

 By virtue of New Jersey's "deemer" statute, Liberty Mutual is the insurer liable for defendant Sullivan's medical expenses. The car involved in the accident was insured by that insurer, which admittedly transacts business in New Jersey. Answer, P 2. The insurance policy itself contemplates out-of-state protection in that it enlarges bodily injury coverage when mandated by state law. Liberty Mutual policy at 7. DiOrio v. Nationwide Mut. Ins. Co., 17 F.3d 657, 659-60 (3d Cir. 1994) (New Jersey "deemer" statute serves as endorsement to Pennsylvania policy covering car involved in accident in New Jersey where insurer qualified to do business there); Smith v. Firemens Ins. Co., 404 Pa. Super. 93, 99, 590 A.2d 24, 27 (1991) (same).

 Defendant Liberty Mutual insists that Prudential is the first-party insurer as a matter of Pennsylvania law, 75 Pa. C.S.A. § 1713, and that under Pennsylvania's anti-stacking statute defendant Sullivan cannot obtain benefits from both insurers. 75 Pa. C.S.A. § 1717. Case law is to the contrary. Where the accident occurred in New Jersey, that state's "deemer" statute has consistently been applied to Pennsylvania policies. See supra note 3. Also see Allstate Ins. Co. v. McNichol, 420 Pa. Super. 571, 575, 617 A.2d 333, 335 (1992) (New Jersey statute governs Pennsylvania policy for reasons of comity).

 New Jersey no-fault insurance law prohibits double recoveries. However, it does not prevent recovery of personal injury benefits from two insurers where the payments are not duplicative. Martin v. Prudential Insurance Co., 255 N.J. Super. 524, 527-28, 605 A.2d 762, 764. In Martin, a passenger involved in a New Jersey accident was allowed benefits under a host policy despite payment of the policy limits under a Pennsylvania policy. Here, nothing in the New Jersey "deemer" statute cuts off benefits under defendant Liberty Mutual's policy in excess of the resident/relative coverage of $ 10,000 provided in Prudential's policy.

 Accordingly, Prudential is entitled to reimbursement from Liberty Mutual for payments made to defendant Sullivan in excess of Prudential's admitted responsibility of $ 10,000. Plaintiff's motion for summary judgment at 2. Fees and costs will be denied inasmuch as there appears to be no legal authority for imposing them. Judgment will be entered in favor of plaintiff Prudential declaring that defendant Liberty Mutual is liable for future medical costs of defendant Sullivan up to $ 250,000. N.J.S.A. 17:28-1.4; 39:6A-4. ...


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