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Monday, July 28, 2008

Susan Olkusz and Richard Olkusz v. Hackensack Medical Center and Federal Insurance Company and Atlantic Mutual Insurance Company

07-22-08 A-2216-07T2

In this appeal, we are required to determine whether an amendment to N.J.S.A. 17:28-1.1, adopted by the Legislature on September 10, 2007, reversing the Supreme Court's holding in Pinto v. New Jersey Manufacturers Insurance Co., 183 N.J. 405
(2005), and prohibiting the use of step-down clauses in automobile insurance policies, should be applied retroactively.

The trial court held that the Legislature intended to apply this amendment retroactively. By leave granted, we now reverse. Absent a clear indication from the Legislature as to the effect of this statute, we hold that well-established principles of statutory interpretation require that we construe the statute's restriction on the common law right of freedom to contract prospectively. The statutory prohibition at issue cannot be viewed as "curative," because the holding in Pinto was not predicated on a misapprehension of established legislative policy.