DONALD ALLEN 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NOT FOR PUBLICATION WITHOUT THE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-4446-04T54446-04T5

DONALD ALLEN,

Plaintiff-Appellant,

v.

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY,

Defendant-Respondent.

________________________________

 

Argued: August 9, 2006 - Decided August 22, 2006

Before Judges Kestin and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Camden County, L-3750-04.

Ronald S. Pollack argued the cause for appellant.

Joseph D. Connell, Jr. argued the cause for respondent (Robert R. Nicodemo III, attorney; Richard V. Cosentino, on the brief).

PER CURIAM

Plaintiff, Donald Allen, appeals from orders entered on March 18, 2005, disposing of cross-motions for summary judgment in this declaratory judgment action over uninsured motorist (UM) coverage. The trial court granted defendant's motion, denied plaintiff's motion, and dismissed the complaint. Judge Fernandez-Vina expressed the reasons for his rulings in an oral opinion on the same date.

The motor vehicle accident giving rise to the matter occurred on October 11, 1999, in Philadelphia, Pennsylvania. Plaintiff, a resident of New Jersey, was driving his motor vehicle, which was insured by defendant. The other vehicle was a tow truck owned by the Philadelphia Parking Authority (PPA). Plaintiff filed a civil action in Pennsylvania seeking compensatory damages from the PPA. During the pendency of that suit, the PPA's insurance carrier, Reliance Insurance Company/Group, filed for bankruptcy, and the PPA moved to have the matter dismissed or deferred until plaintiff sought UM coverage from his own insurance carrier. The Pennsylvania Court of Common Pleas for Philadelphia County entered an order placing the case "in a deferred status pending plaintiff's exhaustion of available UM/UIM remedies under [his] auto insurance policy with the New Jersey Manufacturers Insurance Group[.]"

Accordingly, plaintiff initiated an uninsured motorist claim. Defendant denied that claim on the basis of a provision in the policy excluding from UM coverage "any vehicle or equipment [] owned by any governmental unit or agency." A subsequent claim for compensation to the New Jersey Property Liability Insurance Guarantee Association was also denied. Following those denials, plaintiff filed this suit.

The provision in defendant's policy, on which it relied for its disclaimer, is based on a statutory exclusion from the definition of "uninsured motor vehicle" for a "motor vehicle which is owned by the United States or Canada, or a state, political subdivision or agency of those governments . . . ." N.J.S.A. 17:28-1.1e(2). In Tozzo v. Universal Underwriters Ins. Co., 261 N.J. Super. 586 (App. Div. 1993), we held that exclusion did not apply where the governmental entity had denied vicarious responsibility for the driver's conduct. In evaluating plaintiff's reliance on the holding in Tozzo, Judge Fernandez-Vina opined that the rule of that case did not cover the instant situation, where the public entity had conceded vicarious responsibility when it admitted in its answer to the underlying complaint that the driver of its vehicle was, at the time of the accident, operating that vehicle in connection with his employment. The reason plaintiff was required to advance his uninsured motorist claim was not because of any liability disclaimer by the public employer, as occurred in Tozzo, but rather because of the eventuality, unconnected with the accident, that the public entity's insurance carrier was no longer financially responsible.

Neither Tozzo nor Schechter v. Selctive Ins. Co., 264 N.J. Super. 299 (App. Div. 1993), also relied upon by plaintiff, bear the readings advanced by plaintiff that would result in coverage in the instant matter. We are, in short, in substantial agreement with the rationale employed by Judge Fernandez-Vina in making his rulings on the cross-motions for summary judgment.

Having discharged his responsibility to seek UM coverage as ordered by the Pennsylvania court when it deferred consideration of the underlying claim, plaintiff is now relegated to such remedies as he may have under Pennsylvania law.

Affirmed.

 

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A-4446-04T5

August 22, 2006