AMERICAN MOTORISTS INSURANCE COMPANY v. GERALD ANDIORIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0049-09T30049-09T3

AMERICAN MOTORISTS INSURANCE

COMPANY,

Plaintiff-Respondent,

v.

GERALD ANDIORIO,

Defendant-Appellant,

and

HANOVER INSURANCE COMPANY,

Defendant.

_______________________________________________________

 

Argued April 12, 2010 - Decided

Before Judges Alvarez and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2250-09.

Robert Montecallo argued the cause for appellant (Biagiotti, Marino & Montecallo, attorneys; Mr. Montecallo, on the brief).

Robert John Aste argued the cause for respondent (Morgan Melhuish Abrutyn, attorneys; Elliot Abrutyn, of counsel; Mr. Aste, on the brief).

PER CURIAM

Plaintiff, American Motorists Insurance Company, sued for a declaratory judgment action enforcing the underinsured motorists step-down provision contained in its commercial motor vehicle insurance policy. After plaintiff was awarded summary judgment, defendant Gerald Andiorio moved unsuccessfully for reconsideration and a stay of the judgment. He now appeals, arguing that the trial court erred when it denied his application for a stay.

Andiorio concedes that the trial court was bound by decisions of the Appellate Division to grant plaintiff's motion for summary judgment. See, e.g., Olkusz v. Brown, 401 N.J. Super. 496 (App. Div. 2008); Hand v. Philadelphia Ins. Co., 408 N.J. Super. 124 (App. Div.), certif. denied, 200 N.J. 506 (2009). Nevertheless, he asserts that the trial court should have granted his request for a stay because a declaratory judgment should not be granted "upon a state of facts which are future, contingent and uncertain." For that proposition, he cites In re Will of Seabrook, 90 N.J. Super. 553 (Ch. Div. 1966). He argues that the uncertainty is whether the State Supreme Court will agree with the Appellate Division's resolution of the legal issue, which is whether N.J.S.A. 17:28-1.1(f) should be applied retroactively.

Acceptance of Andiorio's legal proposition as to when a court should refuse to grant declaratory judgment does not advance his cause because he suggests only an uncertainty about the law, not an uncertainty of fact.

In short, there existed no basis on which the trial court could have done anything other than apply the then settled legal principle which required the resolution in favor of plaintiff. If Andiorio believes the trial court erred as a matter of law, his only avenue of relief is by way of petition to the Supreme Court for review of the substantive decision. We note in passing that Andiorio has not provided any citation in support of the proposition that the Supreme Court has even granted certification on the issue of whether the statute in question should be applied retroactively. Of course, even were that the case, there would still have been no reason why the trial court should have stayed its decision, which was based on the then and still controlling law.

Affirmed.

 

(continued)

(continued)

3

A-0049-09T3

April 21, 2010