DIANNE CAPOFERRI et al. v. SELECTIVE WAY INSURANCE COMPANY et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6536-04T26536-04T2

DIANNE CAPOFERRI and

RONALD CAPOFERRI,

Plaintiffs-Appellants,

v.

SELECTIVE WAY INSURANCE

COMPANY and/or SELECTIVE

INSURANCE COMPANY OF AMERICA,

Defendant-Respondent.

__________________________________

 

Submitted June 21, 2006 - Decided July 14, 2006

Before Judges Wefing and Coburn.

On appeal from Superior Court of New

Jersey, Law Division, Cumberland

County, No. L-181-03.

Sal B. Daidone, attorney for appellants.

Mortenson and Pomeroy, attorneys for

respondent (Daniel J. Pomeroy and Karen E.

Heller, on the brief).

PER CURIAM

Plaintiffs appeal from a judgment entered in favor of defendant Selective Way Insurance Company following a bench trial. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff Dianne Capoferri (her husband sues per quod) was employed as a school bus driver by Woodland Country Day School. Woodland insured its vehicles under a commercial liability policy issued by defendant Selective which had UM/UIM coverage of $500,000. The Capoferris held an individual automobile liability policy issued by Prudential Insurance Company which had UM/UIM coverage of $100,000.

On March 19, 1999, while driving a vehicle owned by Woodland and insured by Selective, plaintiff was struck by a vehicle driven by an uninsured driver. She sought to collect UM benefits under the Woodland policy issued by Selective. That policy, however, contained a stepdown clause, the effect of which was to limit the coverage available to plaintiff to $100,000, the limit provided under her own individual Prudential policy. Invoking the stepdown clause, Selective contended she was entitled to no more than $100,000 in UM benefits under its policy.

Plaintiffs filed a declaratory judgment action, seeking to annul this stepdown clause. The trial court rejected their position, as do we. On appeal, plaintiffs, relying upon Morton Int'l, Inc. v. Gen. Accident Ins. Co. of Am., 134 N.J. 1 (1993), seek to estop Selective from enforcing this stepdown clause. They also contend the stepdown clause should not be enforced because Selective failed to give notice of the policy endorsement.

We have considered these arguments and the authorities relied upon. We affirm substantially for the reasons expressed by Judge Bowen in his letter opinion of July 6, 2005.

Affirmed.

 

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A-6536-04T2

July 14, 2006