In a case decided August 12, 2008, the Appellate Division held that where a personal injury protection benefits insurer has paid benefits to its inured, it is entitled to reimbursement of those benefits from the insurance proceeds of a third-party tortfeasor pursuant to N.J.S.A. 39:6A-9.1, even if the limits of the tortfeasor’s insurance policy are insufficient to make the insured whole. In Fernandez v. Nationwide Mutual Fire Insurance Company, which is approved for publication, the court resolved a perceived conflict between two prior opinions on this topic. Specifically, the court found that IFA Ins. Co. v. Waitt — often relied upon by injured parties for the proposition that their recovery preempts a PIP carrier’s reimbursement action — holds only that recovery cannot be had against the tortfeasor’s liability insurer for more than its policy limits. The court further held that Knox v. Lincoln General Ins. Co. controlled and requires that the PIP carrier take priority over the injured party in recovering from the tortfeasor.
As a practical matter, this case should be cited by any PIP carrier seeking reimbursement for payments, especially when there is resistance on the basis that there is a pending personal injury case. The Appellate Division has made clear that there is no reason for a PIP reimbursement arbitration to await the outcome of the underlying tort case.