ESTATE OF PATRICIA IRWIN v. PALISADES SAFETY & INSURANCE ASSOCIATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6715-03T56715-03T5

ESTATE OF PATRICIA IRWIN,

Plaintiff-Respondent,

v.

PALISADES SAFETY & INSURANCE

ASSOCIATION,

Defendant-Appellant.

_______________________________________

 

Argued: October 31, 2005 - Decided February 8, 2006

Before Judges A. A. Rodr guez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-003227-03.

Jeff C. Mazier argued the cause for appellant (Hoagland, Longo, Moran, Dunst & Doukas, attorneys; John C. Simons, of counsel and on the brief).

Daniel E. Chase argued the cause for respondent (Hartsough, Kenny & Chase, attorneys; Mr. Chase, of counsel and on the brief).

PER CURIAM

Patricia Pollard Irwin (decedent) perished in a motor vehicle accident in Trenton on December 6, 2001. The vehicle she was operating was struck by a vehicle operated by Rashee Oliver and owned by Alvin Wilkias, Jr. Oliver was fleeing the police at an excessive rate of speed at the time of the accident. The Oliver/Wilkias vehicle was insured. At the time of the accident, decedent was insured by defendant Palisades Safety & Insurance Association (Palisades). The insurance policy included uninsured motorist (UM) coverage. The UM provision specified that:

ARBITRATION

If we and an insured do not agree whether that person is legally entitled to recover damages under this Part, or as to the amount of damages; either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judgment of a court having jurisdiction.

. . . .

A decision agreed to by two of the arbitrators will be binding as to:

1. Whether the insured is legally entitled to recover damages; and

2. The amount of damages.

The Executor of decedent's estate sued Oliver for decedent's pain and suffering on a survival theory pursuant to N.J.S.A. 2A:15-3, and wrongful death damages on behalf of decedent's nineteen-year old granddaughter, Leah Prutzman, pursuant to N.J.S.A. 2A:31-1.

After it was determined that the Oliver/Wilkias vehicle was uninsured, the Estate demanded UM benefits from Palisades. Palisades denied the request. The Estate then filed an action against Palisades to compel UM arbitration within thirty days. Palisades moved for summary judgment arguing that the Estate could not present a viable claim for wrongful death damages based on the decedent's relationship with her granddaughter. It is undisputed that, at the time of her death, decedent was divorced from her husband. Her nearest relative at that time was her only child, Deborah Prutzman, the mother of Leah Prutzman. Deborah died in 2003.

Leah's testimony during an examination under oath indicated that Deborah was estranged from her mother at the time of death. According to Leah, decedent "would contribute [to her college costs] when she could help [her] out, or if [she] needed it, like say for a class or something." Leah estimated that her grandmother provided her with $600 towards tuition and supplies during her first semester at college. In addition, decedent assisted Leah with her car and insurance payments and actively participated in her life. Leah described decedent as a "mom" who aided in her upbringing by taking her dress shopping for the prom, attending her dance recitals and advising her about major life decisions.

Palisades also sought dismissal of the complaint because there was no evidence to support a claim based on the pain and suffering of the decedent. The death certificate indicated that the cause of death was "massive multiple traumatic injuries." The interval between onset and death was reported as "sudden." Thus, Palisades alleged that there was no evidence of conscious pain and suffering by the decedent.

The Estate cross-moved for summary judgment and to compel the UM arbitration. Following oral argument, the judge denied Palisades's motion for summary judgment and granted the Estate's cross-motion to compel the UM arbitration.

On appeal, Palisades contends that the Estate does not have a viable wrongful death claim pursuant to N.J.S.A. 2A:31-1 or under N.J.S.A. 3B:5-3, arising out of Leah Prutzman's relation to decedent. Therefore, the judge erred in compelling Palisades to submit to the UM arbitration. Palisades also contends that no facts exist to support a survival claim pursuant to N.J.S.A. 2A:15-3.

We decline to address the merits of these contentions. The issue presented to the Law Division and before us today is which forum should decide the merits of these claims. We conclude that arbitration, as agreed to by the parties in the insurance contract, is the appropriate method by which these claims should be addressed.

The inclusion of a provision in an automobile insurance policy which calls for the arbitration of UM benefits is a contractual provision to be construed according to contract law principles. Annunziata v. Prudential Ins. Co., 260 N.J. Super. 210, 214 (Law Div. 1992). In circumstances where contract terms are clear, we must enforce those terms as written. Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960). When deciding disputed issues pursuant to a "standard" clause, the arbitration panel is permitted to decide the extent of the liability of the uninsured tortfeasor and the total amount of damages. United Serv. Auto. Ass'n. v. Turck, 156 N.J. 480, 486 (1998); Tornatore v. Selective Ins. Co., 302 N.J. Super. 244, 246, 254-55 (App. Div. 1997). The language contained in the policy in question would provide a broader scope of arbitrable issues.

Here, Palisades neither argues that the UM arbitration provision is unclear or ambiguous in any way nor contends that the decedent's policy does not cover wrongful death or survival actions. Instead, Palisades contends that the Estate's claims fall outside those arbitrable pursuant to the policy because, as a matter of law, it is entitled to summary judgment. That may or may not be the case. However, Palisades contracted to have those issues decided through arbitration. Palisades cannot unilaterally change the forum for deciding this dispute.

 
Affirmed.

(continued)

(continued)

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A-6715-03T5

February 8, 2006