WILLIAM L. HOUCK et al. v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1141-03T51141-03T5

WILLIAM L. HOUCK and MARY HOUCK,

Plaintiffs-Appellants,

v.

NEW JERSEY MANUFACTURERS INSURANCE COMPANY,

Defendant-Respondent.

___________________________________________

 

Argued: February 15, 2006 - Decided April 3, 2006

Before Judges Kestin, Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, L-8113-00.

Jack Wurgaft argued the cause for appellants (Javerbaum Wurgaft Hicks & Zarin, attorneys; Mr. Wurgaft, on the brief).

Brian G. Steller argued the cause for respondent (Connell Foley, attorneys; Mr. Steller, of counsel; Gregory E. Peterson, on the brief).

PER CURIAM

In an unpublished opinion filed on July 1, 2004, we held that defendant, New Jersey Manufacturers Insurance Company (NJM), could not succeed on its motion for summary judgment in respect of plaintiff's claims for full coverage under the UM/UIM provision of a trucker's insurance policy issued by NJM to William Houck's employer irrespective of the terms of a step-down clause. We remanded for further proceedings in the trial court.

In our opinion, we noted the existence of conflicting views among Appellate Division panels on the underlying question, and that, since the matter had come before us, the Supreme Court had granted certification in Pinto v. New Jersey Manufacturers Ins. Co., 365 N.J. Super. 378 (App. Div. 2004). We "look[ed] forward to the certitude and uniformity that the Court's review will bring to the area."

The Supreme Court decided Pinto on June 6, 2005, in an opinion reported at 183 N.J. 405. The following day, the Supreme Court granted NJM's petition for certification in this matter and summarily remanded for our reconsideration in the light of its opinion in Pinto. We called upon the parties to file supplemental briefs and we listed the matter for re-argument.

There is no dispute that the decisional principle applied by the Supreme Court in Pinto requires us to abandon the substantive view we expressed the last time this matter was before us. The only issue is how the matter should be handled procedurally.

Plaintiffs argue that the matter must be remanded to the trial court for further discovery regarding the duty imposed on insurers by the Supreme Court in Pinto "to fully inform employers about the nature and scope of 'step down' coverage contained in their business automobile policies[.]" NJM argues, in response, that "the Pinto decision requires this court to enter judgment affirming the trial court's" former grant of summary judgment; and that the duty imposed on insurers by the Supreme Court in Pinto has no bearing upon this matter.

The question before us is whether the duty imposed applies only prospectively or can be deemed retroactive to govern the parties in this case. The answer to the question could not be clearer. The Supreme Court established the rule for prospective application only. It was that question that elicited a dissent in part by Justice Zazzali, joined by Justice Albin. See id. at 418-22. Two members of the Court having expressly dissented on that feature, the majority must be taken to have embraced it.

 
Accordingly, based on that understanding, we vacate our prior order and affirm the trial court's earlier order granting NJM's motion for summary judgment and declaring the step-down provision in the policy to be valid and applicable, limiting plaintiffs' claim to the $25,000 UM/UIM coverage provided in their personal automobile insurance policy.

(continued)

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A-1141-03T5

April 3, 2006