In a recent unpublished decision Viruet v. Maoine, CUM-L-842-14 (N.J. Super. Law Div. Nov. 4, 2016), the Law Division of Cumberland County issued a supplemental opinion and held that a Plaintiff’s medical expenses are not subject to the Personal Injury Protection (“PIP”) New Jersey Medical Fee Schedule to the extent they exceed the elective coverage and that the Fee Schedule only applies to medical expenses paid by first-party PIP insurers. The Court analyzed the issue as to whether Plaintiff’s medical expenses that exceeded his selected $15,000.00 PIP coverage were also subject to the Fee Schedule and only boardable to the extent of the fee schedule amounts.
On January 9, 2013, Plaintiff, Angel Viruet, Jr., was involved in a motor vehicle accident with Defendant, Fernando Maoine. Plaintiff was insured by GEICO and had selected the $15,000.00 PIP coverage, which is the minimum allowable pursuant to N.J.S.A. 39:6A-4.3(e). He alleges that he incurred $56,321.93 in medical bills due to the injuries he sustained in the accident. Defendant moved to subject all of Plaintiff’s medical expenses to the Fee Schedule; thus his assertion was that any expenses above the $15,000.00 PIP coverage were subject to the Fee Schedule and Plaintiff could only recover that amount.
The Viruet Trial Court disagreed with Defendant and first noted that pursuant to the Automobile Insurance and Cost Reduction Act of 1998 (“AICRA”), automobile insurance must provide medical expense benefits, also known as PIP coverage, at various levels, ranging from $15,000.00 to $250,000.00 for its policyholders to select. Furthermore, any medical expenses incurred as a result of an automobile accident that are covered by the PIP coverage are subject to the Fee Schedule that is promulgated by the Commissioner of Banking and Insurance. The Legislature delegated the task of determining the reasonable and prevailing fees for medical services for which an automobile insurer should be responsible to the Commissioner. The Court noted that there was no question that any services reimbursed under Plaintiff’s $15,000.00 PIP coverage were subject to the Fee Schedule, as required by N.J.S.A. 39:6A-4.6(e). The Court also noted that pursuant to N.J.S.A. 11:3-29.6, medical providers were prohibited from charging above the Fee Schedule for services that would be reimbursed by an automobile insurer.
The Viruet Trial Court noted that because Plaintiff elected the lowest option of PIP coverage, $15,000.00, and his expenses well-exceeded that, it was unclear whether the excess expenses were subject to the Fee Schedule. Furthermore, neither the Statute nor the regulation regarding PIP coverage and the Fee Schedule address the question of whether a healthcare provider can charge more than the Fee Schedule permits if a Plaintiff’s expenses are not being paid under PIP coverage. Since Plaintiffs are permitted to recover for economic losses pursuant to N.J.S.A. 39:6A-2(k), the Viruet Trial Court found that allowing a plaintiff to recover medical expenses paid in excess of his or her PIP coverage would be an appropriate reimbursement of an economic loss, rather than a windfall. The Court clarified, however, that plaintiffs still cannot recover PIP copayments and deductibles from tortfeasors because N.J.S.A. 39:6A-12 continues to bar such recoveries.
As a previous Trial Court noted, “The Legislature has evinced, in clear language, its intention to allow recovery in tort of medical expenses for which an accident victim as not been otherwise compensated.” Wise v. Marienski, 425 N.J. Super. 110, 121 (Law Div. 2011). The Viruet Trial Court found that since Plaintiff was seeking to recover the medical expenses for which he was uncompensated, it was appropriate to allow him to recover those amounts from Defendant. Thus, the court held that Plaintiff was “not barred from recovering the full amount of the medical bills in excess of his PIP medical expense coverage limit that were incurred as a result of the accident,” and that the fee schedule applies only to “medical expenses paid by first-party PIP insurers.”
The potential impact of the Trial Court’s decision in Viruet is ominous: the Fee Schedule only applies to expenses covered by a PIP insurer; expenses incurred in excess of that PIP coverage amount are not subject to the Fee Schedule and reimbursement of those excess expenses may be sought from a tortfeasor. Thus, if a Plaintiff has selected a lower PIP option, a Defendant may be responsible for the medical bills in excess of the PIP coverage and those amounts may be in excess of the Fee Schedule. However, this is only a Trial Court opinion, and can only be used as persuasive authority in opposing the application of the defense. Thus, defendants may still make the argument that excess amounts should be subject to the fee schedule. However, Plaintiffs can now not only cite Wise, but can also cite Viruet in seeking to “board” and recover all medical expenses above limited PIP policy limits, potentially resulting in greater exposure to tortfeasors and their insurance carriers.
 Jeffrey S. Bell, Esq. is a Shareholder in GRSLB&G’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey State and Federal Courts. Jeff can be reached at firstname.lastname@example.org.
 Jennifer L. Startzel, Esq. is an Associate in GRSLB&G’s General Liability and Construction Departments. She represents insurance companies and self-insured companies in the defense of these claims. Jennifer can be reached at email@example.com.