                                               NOT PRECEDENTIAL


         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                         _________

                        NO. 10-4345
                         _________


                  DOROTHY AVICOLLI,
                             Appellant

                              v.

     GOVERNMENT EMPLOYEES INSURANCE COMPANY,
   a/k/a GEICO; ANGELO CARTER; CHARLES CARTER

                         _________

       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
              (D.C. Civil No. 2-10-cv-02858)
          District Judge: Hon. Legrome D. Davis
                         _________

         Submitted Under Third Circuit LAR 34.1(a)
                      July 11, 2011

Before: SLOVITER, FUENTES, and VANASKIE, Circuit Judges

                    (Filed: July 29, 2011)
                         _________



                         OPINION
SLOVITER, Circuit Judge.

       Dorothy Avicolli appeals from the District Court‟s order granting the motion of

the Government Employees Insurance Co. (“GEICO”) to dismiss Avicolli‟s Complaint

for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Specifically, Avicolli

challenges the District Court‟s conclusion that N.J. Stat. Ann. § 17:28-1.3, a New Jersey

statute governing automobile insurance coverage, does not violate the Equal Protection

Clause of the Fourteenth Amendment. We will affirm.

                                              I.

       Avicolli, a citizen and resident of Pennsylvania, suffered serious personal injuries

after she was struck while a pedestrian in Pennsylvania by a car owned by Charles Carter

and permissively operated by his son, both citizens and residents of New Jersey. Charles

Carter was insured under an automobile policy issued in New Jersey by GEICO. Avicolli

brought suit against the Carters for negligence, and against GEICO for bad faith and

breach of contract based on GEICO‟s refusal to pay Avicolli personal injury protection

(“PIP”) benefits under the insurance policy.1

       Avicolli received $15,000 in settlement of her claim against the Carters, the full

amount of the liability coverage under the GEICO policy, while reserving her right to

press her claims against GEICO for PIP benefits. Although the GEICO policy contained

PIP coverage of $250,000, it excluded nonresidents of New Jersey who were injured

1
   New Jersey defines “[p]ersonal injury protection coverage” as the “[p]ayment of
medical expense benefits in accordance with a benefit plan provided in the policy and
approved by the commissioner, for reasonable, necessary, and appropriate treatment and
provision of services to persons sustaining bodily injury, in an amount not to exceed
$250,000 per person per accident.” N.J. Stat. Ann. § 39:6A-4(a).
                                              2
outside the state from receiving PIP benefits. GEICO moved to dismiss Avicolli‟s

complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Avicolli responded

by arguing that the New Jersey statute, § 17:28-1.3, which requires that PIP benefits be

available to pedestrians injured in New Jersey but lacks a similar mandate for pedestrians

injured outside New Jersey, was unconstitutional. The District Court granted GEICO‟s

motion, and Avicolli appeals.2

                                             II.

        Avicolli challenges § 17:28-1.3. That section of the statute provides in relevant

part:

        Every liability insurance policy issued in this State on a motor vehicle . . .
        insuring against loss resulting from liability imposed by law for bodily
        injury, death, and property damage sustained by any person arising out of
        the ownership, operation, maintenance, or use of a motor vehicle . . . shall
        provide personal injury protection coverage benefits . . . to pedestrians who
        sustain bodily injury in the State caused by the named insured's motor
        vehicle . . . or by being struck by an object propelled by or from the motor
        vehicle . . . .

N.J. Stat. Ann. § 17:28-1.3 (emphasis added).

        Avicolli argues that § 17:28-1.3 unconstitutionally deprives a pedestrian injured

outside New Jersey of the equal protection of the law by precluding that pedestrian, and

not a pedestrian injured in New Jersey, from receiving PIP coverage. The Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution

prohibits a state from denying “any person within its jurisdiction the equal protection of

2
   The District Court had jurisdiction by virtue of the diversity of the parties under 28
U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291. We conduct a plenary
review over a district court‟s grant of a motion to dismiss for failure to state a claim.
Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009).
                                              3
the laws.” Because the statute does not trammel on fundamental rights and does not draw

distinctions based on inherently suspect classifications such as race, religion, or alienage,

it is evaluated under rational basis review. City of New Orleans v. Dukes, 427 U.S. 297,

303 (1976); Dyszel v. Marks, 6 F.3d 116, 125 (3d Cir. 1993). Under this level of

scrutiny, a law will be upheld if “the classification challenged [is] rationally related to a

legitimate state interest.” Dukes, 427 U.S. at 303. Put another way, “if there is any

reasonably conceivable state of facts that could provide a rational basis for the

classification,” the statute will survive an equal protection challenge. Dyszel, 6 F.3d at

125 (internal quotation omitted).

       Contrary to Avicolli‟s characterization, § 17:28-1.3 does not prohibit insurers from

offering PIP coverage to pedestrians injured outside New Jersey. Rather, it mandates that

insurance policies issued in New Jersey provide PIP coverage to pedestrians injured in

the state, and says nothing about pedestrians injured outside the state, leaving it to the

insurer to decide whether to offer those pedestrians similar coverage.

       The District Court rejected Avicolli‟s Fourteenth Amendment challenge to §

17:28-1.3, reasoning that there are numerous reasonably conceivable legitimate state

interests that support the statutory distinction between pedestrians injured by accidents

occurring within and beyond New Jersey borders. It stated:

       At the most basic level, the State of New Jersey has a legitimate interest in
       ensuring that individuals injured within its borders receive financial
       coverage for medical expenses. Furthermore, provisions such as this fit
       within legislative schemes that have a host of positive effects that the
       legislature intends when it enacts them, including the reduction of litigation
       costs and the affordability of coverage to its citizenry.


                                               4
Avicolli v. Gov’t Emps. Ins. Co. et al., No. 2:10-cv-02858, slip op. at 14 (E.D. Pa. Oct.

27, 2010).

       The District Court‟s analysis is persuasive. In challenging the District Court‟s

decision, Avicolli relies on the standard enunciated in Johnson v. Robison, 415 U.S. 361

(1974), but the Supreme Court has since made clear that the proper standard for rational

basis review is to inquire “„if there is any reasonably conceivable state of facts that could

provide a rational basis for the classification.‟” Dyszel, 6 F.3d at 125 (quoting F.C.C. v.

Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)); see also United States R.R. Ret. Bd. v.

Fritz, 449 U.S. 166, 179 (1980); Coal. for Equal Rights, Inc. v. Ritter, 517 F.3d 1195,

1200 (10th Cir. 2008).

       Avicolli also argues that the distinction in § 17:28-1.3 between in-state and out-of-

state collisions is not rationally related to the “primary purpose” of the New Jersey

Automobile Reparation Reform Act of 1972 which is to effectuate “the prompt and

efficient provision of benefits for all accident victims.” Appellant‟s Br. at 19 (citing

Gambino v. Royal Globe Ins. Cos., 429 A.2d 1039, 1042 (N.J. 1981) (“The reparation

objective was viewed as the „primary purpose of an automobile insurance system‟ . . . .”)

(citation omitted)); see N.J. Stat. Ann. 39:6A-1, et seq.

       In so arguing, Avicolli overlooks that although Gambino identified the reparation

objective as the primary purpose of New Jersey‟s automobile insurance system at the

time of the legislation‟s enactment, New Jersey‟s automobile insurance laws have since

been amended in an effort to reduce insurance premiums for New Jersey motorists. See

Hardy ex rel. Dowdell v. Abdul-Matin, 965 A.2d 1165, 1170 (N.J. 2009). Indeed, §

                                              5
17:28-1.3 was enacted as part of the New Jersey Automobile Insurance Freedom of

Choice and Cost Containment Act of 1984, the purpose of which was “the reduction in

private insurance costs, not the expansion of coverage.” Id.; see N.J. Stat. Ann. § 17:28-

1.1, Comm. Statement to Assembly, No. 3981--L.1983, c. 362, Introductory Statement.

       In light of the above, it is plain that the District Court correctly concluded that,

although § 17:28-1.3 draws a distinction between in-state and out-of-state collisions, that

classification is rationally related to a legitimate state interest.

                                               III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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