CHERYL LEE v. NEW JERSEY SKYLANDS INSURANCE CO.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1534-06T31534-06T3

CHERYL LEE,

Plaintiff-Appellant,

v.

NEW JERSEY SKYLANDS

INSURANCE COMPANY,

Defendant-Respondent.

_________________________________

 

Submitted: February 25, 2008 - Decided:

Before Judges C.S. Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Atlantic County, L-4808-05.

Law Office of Gary P. Levin, attorneys for appellant (Mr. Levin, on the brief).

Law Offices of Stephen E. Gertler, attorneys for respondent (Mark S. Hochman, on the brief).

PER CURIAM

Plaintiff Cheryl Lee appeals from a partial summary judgment in favor of defendant New Jersey Skylands Insurance Company on the first count of her complaint seeking uninsured motorist benefits and dismissing the balance of her complaint as settled. We affirm.

The facts in the record before us are limited, as is the procedural history. Plaintiff, who was insured by defendant with UIM coverage of $100,000, was involved in a motor vehicle accident on August 16, 2003. Michael Curron, the driver of the other vehicle was insured by Westfield Insurance Company with a policy limit of $50,000. Plaintiff's attorney notified defendant on December 15, 2004, that she would be making a UIM claim. About ten weeks later, without any further notice to defendant, plaintiff settled her claim against Curron for $45,000.

Two weeks thereafter plaintiff advised defendant that she had settled with Curron and made a demand for an amount in excess of the UIM coverage. Defendant denied coverage on March 31, 2005, advising that "you did not properly notify us of your intention to accept the underlying limits and as such you have now prejudiced our right to subrogation under Longworth [v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988)]."

Plaintiff filed a suit seeking, among other relief, to compel payment of UIM benefits. Defendant sought a summary judgment dismissing the claim for UIM benefits under Longworth. Plaintiff argued that her initial letter notifying defendant of her intent to make a claim satisfied the Longworth requirements but the motion judge determined that the initial letter was insufficient because Longworth required that a UIM carrier be given notice of a proposed settlement and an opportunity to pay the UIM benefits and take an assignment of the insured's right of action against the tortfeasor. The judge filed an order on August 21, 2006, dismissing the UIM claim. The balance of the action settled on September 25, 2006. This appeal followed.

On appeal, plaintiff contends that the motion judge erred when he granted defendant's motion for summary judgment on the first count because plaintiff failed to comply with Longworth. Plaintiff also advances certain arguments in support of her case that were not presented to the motion judge.

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."

[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]

The additional arguments advanced by the plaintiff do not concern the jurisdiction of the court or any matter of great public interest. As a consequence, we confine our consideration of plaintiff's appeal to the issue of whether she complied with the Longworth requirements of notice to the UIM carrier prior to settlement of her action against the tortfeasor.

Twenty years ago we required that:

an insured receiving an acceptable settle-ment offer from the tortfeasor should notify his UIM carrier. The carrier may then promptly offer its insured that sum in exchange for assignment to it by the insured of the claim against the tortfeasor. While promptness is to be ultimately determined by the circumstances, 30 days should be regarded as the presumptive time period if the insured notices his carrier prior to assignment of a trial date. In any event, an insured who has not received a response from his carrier and who is in doubt as to whether acceptance of the tortfeasor's offer will impair his UIM rights may seek an immediate declaratory ruling from the trial court on order to show cause on such notice as is consistent with the circumstances. We further hold that UIM carriers may, if they choose, honor demands from their insureds to proceed to arbitration of the UIM claim prior to disposition of the claim against the tortfeasor.

[Longworth, supra, 223 N.J. Super. at 194-95.]

That approach was endorsed by our Supreme Court in Rutgers Cas. Ins. Co. v. Vassas, 139 N.J. 163, 172 (1995). We construed Vassas to require three separate notices: one at the initiation of legal action against the tortfeasor; another at the time it became apparent that the tortfeasor's insurance was not adequate; and last, the Longworth notice, when a settlement offer is received from the tortfeasor. Rivers v. Allstate Ins. Co., 312 N.J. Super. 379, 383 (App. Div. 1998).

Here, plaintiff sent only one of the three notices required by Vassas and Rivers and never sent the Longworth notice. Defendant was prejudiced by the loss of the right to pursue the underinsured tortfeasor for the sums in excess of the tortfeasor's liability coverage and was entitled to disclaim UIM benefits.

Affirmed.

Plaintiff includes "facts" in her brief that do not exist in the record nor were they presented to the motion judge in any fashion. She also did not seek our leave to supplement the record under Rule 2:5-5(a) or seek a remand to the trial court for that purpose pursuant to Rule 2:9-1. As a consequence, we neither consider those "facts" nor recite them in this opinion. Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 52 (2004).

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A-1534-06T3

May 6, 2008