ROBERT STAMER v. ENCOMPASS INSURANCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4910-08T24910-08T2

ROBERT STAMER,

Plaintiff-Appellant,

v.

ENCOMPASS INSURANCE,

Defendant-Respondent.

______________________________________________________

 

Argued February 22, 2010 - Decided

Before Judges R. B. Coleman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4474-08.

Jordan R. Irwin argued the cause for appellant (Begelman, Orlow & Melletz, attorneys; Mr. Irwin, on the brief).

Francis X. Ryan argued the cause for respondent (Green, Lundgren & Ryan, P.C., attorneys; Mr. Ryan and Alexa J. Nasta, on the brief).

PER CURIAM

Plaintiff Robert Stamer, who was seriously injured when his motorcycle was rear-ended by a pickup truck operated by tortfeasor Timothy Sweet, appeals from a May 1, 2009 order granting summary judgment in favor of Encompass Insurance Company. That order declared that Encompass had no obligation to provide underinsured motorist (UIM) benefits to plaintiff under the automobile liability insurance policy Encompass had issued to Stamer's parents, and it dismissed plaintiff's complaint with prejudice. While Stamer was not a named insured on his parents' policy, he was the named insured on a policy of motorcycle insurance issued by Rider Insurance Company. That policy provided liability coverage but no UM/UIM coverage. The policy issued by Encompass to plaintiff's parents provided uninsured motorist/underinsured motorist (UM/UIM) benefits in the amounts of $100,000/$300,000. Stamer settled his third-party claim against Sweet for Sweet's policy limit of $25,000/$50,000. Then he sued Encompass under his parents' policy, seeking UIM benefits.

At issue is whether Stamer comes within the policy definition of covered person. The policy states:

UNINSURED MOTORISTS COVERAGE NEW JERSEY

(SPLIT LIMITS BASIS)

In consideration of an additional premium, if the Coverage Summary shows an amount of "Uninsured Motorists" coverage, we will provide the coverage described by the provisions of this endorsement.

DEFINITIONS

The following words and phrases are defined for this "UNINSURED MOTORISTS COVERAGE" endorsement. Only in regard to the coverage provided by this endorsement, the following definitions replace any corresponding definitions in the "MOTOR VEHICLE" Segment.

1. Covered Person means:

b. Any family member:

(1) Who does not own an automobile for the maintenance or use of any vehicle;

(2) Who owns an automobile, but only for the use of an insured motor vehicle;

Except while occupying, or when struck by, a vehicle owned by you or that person which is not insured for this coverage under this policy;

Thus, by its terms, Encompass's policy of insurance defines covered person to exclude anyone, including the named insured, who occupies a vehicle which is not insured for UM/UIM coverage under its policy.

After considering oral arguments in support of and in opposition to the motion and cross-motion for summary judgment, Judge Frederick J. Schuck ruled:

I've read this [policy] carefully and what I'm led to conclude is that the language about and defining covered person I've just recited on the record serves clearly to mean that this particular claimant is not a covered person. The coverage just doesn't exist under this policy for him because he was occupying and he owned the vehicle, this motorcycle, which is not insured for this coverage under this policy.

That means he's not a covered person, and the rationale is the rationale I recited before as to why that interpretation is consistent with logic, not to mention the fact that it's clearly what the words say, but the rationale is such that people could in a household insure just one vehicle for higher limits and other people would be in a position to make claims under that one vehicle's coverage, and that rationale is reasonable.

But I conclude just from the plain reading of the language that the movant's analysis is correct, and that being the case the -- when I say "movant," I mean Encompass Insurance Company's analysis is correct. I will -- I'm satisfied under the Brill standard that there is no genuine issue of material fact in dispute, and that the movant there is entitled, as a matter of law, to a judgment, and based on the application of the same standard, the cross-motion of the plaintiff for summary judgment is denied.

We affirm the order granting summary judgment, substantially for the reasons given by Judge Schuck from the bench at the conclusion of oral arguments on the motions.

Stamer argues on this appeal, as he did before the motion judge, that the judge should have allowed the jury to determine whether he was a covered person under his parents' policy. He contends the policy language is ambiguous and that the language by which he was denied coverage should be tested by consumer expectations as it is an exclusion, rather than a definition of coverage.

The motion judge rejected plaintiff's arguments that the language is ambiguous. He noted that under the policy the definition of covered person includes any family member who does not own an automobile for the maintenance and use of an automobile, "except while occupying or when struck by a vehicle owned by you [the insured] or that person [the household member] which is not insured for this coverage [UIM] under this policy." We agree that the language of the policy is sufficiently clear that a reasonable policyholder would understand its implications. It is true that "[w]here an ambiguity exists, it is ordinarily resolved in favor of the insured." Polarome Int'l, Inc. v. Greenwich Ins. Co., 404 N.J. Super. 241, 259 (App. Div. 2008), certif. denied, 199 N.J. 133 (2009). "However, an ambiguity does not arise simply because the parties have offered two conflicting interpretations." Ibid. A genuine ambiguity only arises "where the phrasing of the policy is so confusing that the coverage policyholder cannot make out the boundaries of coverage." Weedo v. Stone-E-Brick, Inc., 81 N.J. 223, 247 (1979).

Ultimately, we agree with the motion judge that no disputed factual issue precluded the granting of summary judgment. The language of the policy and the rationale advanced by that language support the result reached. In a case such as this, where the facts are not in dispute, the trial court must view the evidence in a light most favorable to the non-moving party and inquire whether the evidence "'is so one-sided that one party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). Here, the motion judge made that assessment, and concluded there was no issue to submit to a jury. We agree with that assessment.

Affirmed.

 

A second May 1, 2009 order was issued denying Stamer's cross-motion for summary judgment. The Notice of Appeal does not refer to that second order.

(continued)

(continued)

2

A-4910-08T2

August 19, 2010