ASHLEY AGGOUR v. GEICO

NOT FOR PUBLICATION WITH THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1881-11T3

ASHLEY AGGOUR,

Plaintiff-Appellant,

v.

GEICO,

Defendant-Respondent.

________________________________________________________________

December 20, 2012

Submitted December 3, 2012 - Decided

Before Judges Parrillo and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1688-11.

William Pollack, attorney for appellant.

Law Offices of Robert A. Raskas, attorneys for respondent (John N. Holly, on the brief).

PER CURIAM

In this declaratory judgment action, plaintiff, Ashley Aggour, appeals from an order that granted defendant GEICO's motion for summary judgment. We affirm.

On February 22, 2011, plaintiff filed a complaint against defendant seeking an order declaring that GEICO is contractually obligated to provide underinsured motorists (UIM) coverage for plaintiff's claim arising out of an accident. In August 2011, defendant filed a motion for summary judgment. On December 2, 2011, the court entered an order granting the motion.

Viewed most favorably to plaintiffs, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record discloses the following.

On June 11, 2010, plaintiff, owner and operator of a 2004 BMW, was injured in a five-car collision negligently caused by Jason R. Olejarz (Olejarz). Plaintiff and four other individuals presented collision, property damage and bodily injury claims to Olejarz s insurance carrier, Selective Insurance Company (Selective). Plaintiff and Selective negotiated a settlement in the amount of $42,000. In all, the total claims exhausted the $300,000 Combined Single Limit (CSL)1 on Olejarz s insurance policy.

Plaintiff maintained a policy with GEICO that contained a UIM policy limit of $100,000 per person and $300,000 per accident. She filed a UIM claim with her insurer, defendant, requesting an additional $58,000 - the difference between her $100,000 per person UIM policy limit and the amount she received from Selective. In a letter dated January 11, 2011, defendant denied plaintiff s UIM claim on the basis that Olejarz s Selective policy limits were "the same[,] not less" than plaintiff s policy with defendant.

On December 2, 2011, the trial court granted summary judgment to defendant, dismissing the complaint. The court found that Olejarz was not an underinsured motorist, as defined in N.J.S.A. 17:28(b)-1.2(e). On appeal, plaintiff argues that the trial court erroneously granted summary judgment to defendant.

A court's interpretation of an insurance contract is a determination of law. See Sealed Air Corp. v. Royal Indem. Co., 404 N.J. Super. 363, 375 (App. Div.), certif. denied, 196 N.J.601 (2008). We afford no special deference to a trial court's interpretation of the law and the legal consequences that flow from the established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Accordingly, we review a trial court's interpretation of an insurance policy de novo. Sealed Air Corp., supra, 404 N.J. Super. at 375.

Plaintiff contends that the determination of whether a tortfeasor is underinsured should be based upon a comparison of the per person limits of coverage between the tortfeasor's policy and the claimant's policy. As such, plaintiff argues she was entitled to present a UIM claim against her insurer for the difference between her $100,000 per person policy limit and the amount of the negotiated settlement of $42,000.

We disagree. Interpretation of the law on UIM coverage has been statutorily refined and judicially construed such that the resolution of this appeal is quite formulaic. By statute, a vehicle is deemed "underinsured" when

the sum of the limits of liability under all bodily injury and property damage liability bonds and insurance policies available to a person against whom recovery is sought for bodily injury or property damage is, at the time of the accident, less than the applicable limits for underinsured motorist coverage afforded under the motor vehicle insurance policy held by the person seeking that recovery. A motor vehicle shall not be considered an underinsured motor vehicle under this section unless the limits of all bodily injury liability insurance or bonds applicable at the time of the accident have been exhausted by payment of settlements or judgments.

[N.J.S.A. 17:28-1.1(e)(1) (emphasis added).]

When multiple claimants are injured by a single tortfeasor, a claimant's per accident UIM limit must be compared with the tortfeasor's per accident limit. Staub v. Hanover Ins. Co., 251 N.J. Super. 66, 68 (App. Div. 1991). Here, Olejarz's CSL liability coverage was $300,000. Plaintiff's per accident UIM coverage limit was $300,000. Because Olejarz's liability coverage was equal to, and not less than, plaintiff's UIM per accident limit, Olejarz is not considered an underinsured motorist. Plaintiff is not entitled to a UIM claim.

Furthermore, plaintiff's contention that she is entitled to a UIM claim due to a shortfall in coverage has no merit. See Tyler v. N.J. Auto. Full Ins. Underwriting Ass'n, 228 N.J. Super. 463 (App. Div. 1988). In Tyler, the tortfeasor's insurer offered its entire liability coverage limit to settle the claims of four Tyler family members arising from an automobile accident. Id. at 465. When the proceeds were distributed, two of the Tylers received less than their UIM coverage limit. Ibid. We held that the UIM policy did not cover such a shortfall, citing to N.J.S.A. 17:28-1.1(e). See also David v. Government Employees Ins. Co., 360 N.J. Super. 127, 150 (App. Div 2003) (noting that the tortfeasor was not underinsured in line with Tyler). We established that a tortfeasor is not considered "underinsured" based upon the settlement amount, but rather the relative limits of the tortfeasor's and the insured's coverages. Tyler, supra, 228 N.J. Super. at 466.

A

1 A Combined Single Limit policy can provide liability coverage combined into one lump sum or separated among several claims. Here, the $300,000 was divided among several claimants.

5