MARIA EVORA, et al. v. RECIPROCAL MANAGEMENT CORPORATION, et al.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2271-04T32271-04T3

MARIA EVORA, ADMINISTRATRIX AD

PROSEQUENDUM OF THE ESTATE OF

ELENA GARCIA, MARIA EVORA, GUARDIAN

AD LITEM OF DEONIS TORREALBA, AND

MARIA EVORA, INDIVIDUALLY,

Plaintiff-Appellant,

v.

RECIPROCAL MANAGEMENT CORPORATION D/B/A

NEW JERSEY CURE and NEW JERSEY CITIZENS

UNITED RECIPROCAL EXCHANGE,

Defendant-Respondent,

and

ENTERPRISE RENT-A-CAR COMPANY,

Defendant.

_____________________________________________

 

Argued November 2, 2005 - Decided

Before Judges Wefing and Wecker.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

No. HUD-L-4287-03.

Mitchell D. Perlmutter argued the cause

for appellant (Zavodnick, Perlmutter &

Boccia, attoneys; Mr. Perlmutter, on the

brief).

Robert J. Maloof argued the cause for

respondent (Carla H. Madnick, on the

brief).

PER CURIAM

Plaintiff appeals from a trial court order denying her application to compel her insurer to proceed to uninsured (UM) motorist arbitration. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff Maria Evora is a resident of Union City, and she obtained an automobile insurance policy from New Jersey Citizens United Reciprocal Exchange ("NJ Cure"). Her son, Deonis Torrealba, was insured under that policy as a resident member of her household. In the summer of 2001, plaintiff and her son took a trip to Florida for vacation. They were accompanied by Elena Garcia, plaintiff's mother. Ms. Garcia did not live with her daughter but resided in West New York. Ms. Garcia did not own an automobile and did not reside with anyone who owned an automobile.

While on vacation in Florida, plaintiff rented a car from Enterprise Rent-a-Car. In doing so, plaintiff declined to purchase additional supplemental insurance from Enterprise, relying instead on her NJ Cure policy. According to plaintiff's certification, she called NJ Cure the day before she rented the Enterprise vehicle to inquire whether her own policy would cover a rental vehicle. She was assured that it would. Plaintiff stated that the representative of NJ Cure told her, "imagine you were driving your car in New Jersey."

In the early evening of August 19, 2001, plaintiff was involved in an automobile accident in Miami while driving her rental vehicle. Her car was struck by another when that driver lost control due to his high rate of speed. Plaintiff's mother and son were in the car at the time of the accident and her mother, Elena Garcia, died as a result of the injuries she received in the collision. The driver of the other vehicle was not insured for bodily injury.

Thereafter, plaintiff submitted a claim for UM coverage to NJ Cure. NJ Cure acknowledged that she and her son were both entitled to UM coverage under its policy. It maintained, however, that no UM benefits were due as a result of the death of Ms. Garcia, plaintiff's mother. Plaintiff filed suit in due course.

Standard automobile liability insurance policies issued for cars registered or principally garaged in New Jersey are required to provide for uninsured motorist coverage. N.J.S.A. 17:28-1.1. The purpose of the statute is to "ease the financial burden on the Unsatisfied Claim and Judgment Fund and to provide insured motorists with protection from uninsured, financially irresponsible motorists." Fernandez v. Selected Risks Ins. Co., 82 N.J. 236, 240 (1980). Not all persons involved in an accident with an uninsured driver are automatically entitled to UM coverage; to recover UM benefits, one must qualify as an "insured" under the policy in question. Ibid. The policy itself determines who qualifies as an "insured" and what rights that person has with regard to UM coverage. Rider Ins. Co. v. First Trenton Cos., 354 N.J. Super. 491, 495 (App. Div. 2002). The particular policy provisions control "so long as the terms do not conflict with the UM statute or its underlying policy." Ibid.

The UM endorsement to plaintiff's policy with NJ Cure defined who was insured thereunder in the following terms:

"Insured" as used in this endorsement means:

1. You or any "family member."

2. Any other person "occupying" "your covered auto."

3. Any person for damages that person is entitled to recover because of "bodily injury" to which this coverage applies sustained by a person described in 1. or 2. above.

The term "family member" was defined in the policy as "a person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child." Finally, the policy defined the term "your covered auto" in the following manner:

1. Any vehicle shown in the Declarations.

2. A "newly acquired auto."

3. Any "trailer" you own.

4. Any auto or "trailer" you do not own when used as a temporary substitute for any other vehicle described in this definition which is out of normal use because of its:

a. Breakdown;

b. Repair;

c. Servicing;

d. Loss; or

e. Destruction.

Plaintiff contends on appeal that NJ Cure is obligated to provide UM benefits because Ms. Garcia was a family member and, alternatively, because at the time of the accident, Ms. Garcia was occupying a covered auto. We reject both these contentions.

Plaintiff's mother, Elena Garcia, does not fit within the policy's definition of "family member," as she was not a resident of plaintiff's household. Plaintiff relies upon the familiar principle that ambiguities within an insurance policy must be construed "to comport with the insured's objectively reasonable expectations of coverage." Christafano v. N.J. Mfrs. Ins. Co., 361 N.J. Super. 228, 234 (App. Div. 2003).

This court applied the reasonable expectation doctrine in the context of a claim for UM coverage in Lehrhoff v. Aetna Cas. & Ins. Co., 271 N.J. Super. 340, 348 (App. Div. 1994). In that case, Steven Lehrhoff, the adult son of Arthur Lehrhoff, was injured in California in an accident caused by an unidentified driver. Id. at 342. The elder Lehrhoff lived in New Jersey with his family and had obtained an auto policy from defendant Aetna which listed on the declarations page Steven, his younger brother and his parents as regular drivers of the insured car. Ibid. After graduating from college, Steven moved to California, where he was working at the time of the accident. Id. at 343. Following the accident, Aetna contended Steven was not entitled to UM benefits because he was not a member of the New Jersey household at the time of the accident. Id. at 342. This court rejected Aetna's position, finding that the policy's declarations page, by listing Steven as a regular driver, created a reasonable expectation that he was entitled "to all of the coverages and all of the protections afforded by the policy," including UM coverage. Id. at 348-49.

Having reviewed plaintiff's policy with NJ Cure, we are satisfied that its terms would not create a similar, objectively reasonable expectation that Ms. Garcia was an insured thereunder. Ms. Garcia was not listed on the policy's declarations sheet as a covered driver, as had been the younger Lehrhoff. Indeed, the NJ Cure policy contained not one word about her. Moreover, we do not consider it objectively reasonable for a policy holder to expect that all family members fit within the coverage of the holder's automobile insurance policy.

In structuring the scope of UM coverage, NJ Cure put the phrase "family member" within quotation marks, clearly alerting the policy holder that the phrase had a specific meaning within the policy. NJ Cure was not obligated to repeat within the UM endorsement the definition of "family member" it had set forth at the outset of the policy. Requiring it to do so would only lengthen what was already an extensive document. Lehrhoff, supra, 271 N.J. Super. at 346 (referring to the usual automobile insurance policy as a "bulky document"). The definition itself is clear and direct; it contains no ambiguity, either in its language or its placement.

Similarly, the rental vehicle plaintiff was driving at the time of the accident was not "a covered auto" for purposes of UM insurance. We have earlier set forth the policy's definition of "covered auto." The Enterprise rental car does not fit within the terms of that definition. Plaintiff was not using the Enterprise vehicle as a temporary substitute for her car because her car was out of service and laid up. She was driving the Enterprise car on vacation while her own vehicle remained behind in New Jersey.

Finally, plaintiff's telephone conversation with an unidentified representative of NJ Cure does not entitle her to UM coverage for the death of her mother. NJ Cure's policy did provide liability coverage to plaintiff while she was driving the Enterprise rental car; the insuring agreement within the policy afforded liability coverage to her without regard to the vehicle she might be driving. The policy also afforded her PIP coverage and UM coverage for herself and her son.

 
The trial court's determination that Ms. Garcia was not insured under the UM endorsement as she was neither a "family member" nor "occupying a covered auto" was clearly correct and is affirmed.

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A-2271-04T3

December 8, 2005