G.E. PROPERTY & CASUALTY INSURANCE COMPANY v. LEON MINASSIAN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0451-04T10451-04T1

G.E. PROPERTY & CASUALTY

INSURANCE COMPANY, d/b/a

G.E. AUTO INSURANCE PROGRAM,

Plaintiff-Appellant,

v.

LEON MINASSIAN and VACHE MINASSIAN,

Defendants-Respondents.

___________________________________

 

Argued: December 13, 2005 - Decided March 13, 2006

Before Judges Kestin and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-4612-04.

Arthur J. Timins argued the cause for appellant.

Samuel A. Denburg argued the cause for respondents (Newman & Denburg, attorneys; Mr. Denburg, on the brief).

PER CURIAM

In this declaratory judgment action, plaintiff, G.E. Property & Casualty Insurance Company (G.E.), seeks determinations that the uninsured motorist provision of its automobile insurance policy does not cover defendants' claim arising from a collision on December 9, 2001; and that defendants' all-terrain vehicle (ATV) was not an automobile and, therefore, was not covered by the policy. The trial court ruled in favor of defendants on their motion for summary judgment. G.E. appeals.

On December 9, 2001, during the policy period, defendant Vache Minassian was operating his ATV. That vehicle was struck by a Ford Ranger pick-up truck. Defendants filed an uninsured motorist claim with G.E., which, on February 13, 2002, wrote: "This is to confirm that we are extending coverage under the UMBI portion of the policy for this loss."

G.E. proceeded to investigate the matter, including taking statements under oath on March 4, 2003 and March 19, 2003, respectively, of Vache Minassian and his companion on the date of the accident. In his statement under oath, the companion acknowledged that his initial signed statement regarding the accident, given on January 9, 2002, had omitted a fact. He had stated then that "[t]he operator of the Ford pick-up truck left the scene of the accident without providing his name, license plate number or insurance information." He conceded under oath that "the driver of the Ford pickup truck was still at the scene of the accident and didn't actually leave the scene . . . but rather followed you and Vache towards where your pickup truck was parked[.]"

The record discloses that for most of the next year, through early 2004, counsel for G.E. and defendants continued to correspond constructively about the uninsured motorist claim, i.e., regarding the extent of the injuries incurred, arbitration of the claim, and the like. On March 17, 2004, however, G.E. filed the instant complaint alleging that the ATV was not a covered vehicle and that "the Ford Ranger pick-up truck was not a 'hit and run' vehicle, as it or its driver reasonably could have been identified."

In evaluating the matter on defendants' motion for summary judgment, Judge Donohue, in an oral opinion, found that defendants had been prejudiced by the lengthy delay between G.E.'s initial letter acknowledging coverage and its disclaimer more than two years later, at least a year after one of the facts at the basis of the disclaimer had been discovered. The judge held that G.E. had violated its duty to inform the policyholder promptly of its intention to disclaim and that defendant was entitled to judgment as a matter of law. Whether the policy covered the ATV was a question to be addressed when the claim was initially made, not more than two years thereafter.

We are in substantial agreement with Judge Donohue's reasoning and the conclusion he reached. We note, as well, that the police report of the incident, furnished to the carrier at the time the initial claim was made in January 2002, also put the carrier on notice that the insured or his companion had had the opportunity at the scene to acquire information from which the driver of the other vehicle might have been identified. In addition to considerations of estoppel, G.E.'s conduct in the matter was a violation of the implied covenant of good faith and fair dealing that exists in every insurance contract. See Price v. New Jersey Mfrs. Ins. Co., 182 N.J. 519, 526 (2005). The prejudice to defendants was clear as a matter of law. After the expiration of two years, because of the statute of limitations bar, no efforts they might have engaged in to identify the tortfeasor and prosecute a claim against him directly could have been of any avail, even if the two-year delay did not prejudice them in any other way.

 
Affirmed.

(continued)

(continued)

4

A-0451-04T1

March 13, 2006