ROBERT D'AGOSTINO et al. v. FIRST TRENTON INDEMNITY CO., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5518-05T25518-05T2

ROBERT D'AGOSTINO and DIANA

D'AGOSTINO, his wife,

Plaintiffs-Respondents,

v.

FIRST TRENTON INDEMNITY CO.,

Defendant-Appellant,

and

DENNIS N. RICHMAN, SUSAN

HOWELL and RIDER INSURANCE

COMPANY,

Defendants.

_______________________________________

 

Argued March 20, 2007 - Decided April 17, 2007

Before Judges Skillman and Grall.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-255-05.

Antonio J. Casas argued the cause for appellant (Windels, Marx, Lane & Mittendorf, attorneys; Mr. Casas, of counsel and on the brief; Lisa D. Cornacchia, on the brief).

Peter L. Agostini argued the cause for respondents.

PER CURIAM

In 2004, plaintiffs owned three cars. Defendant First Trenton Indemnity Company (First Indemnity) issued a personal automobile liability policy to plaintiffs for their cars. This policy provided $250,000 of uninsured/underinsured (UM/UIM) bodily injury coverage for each person involved in an accident.

In 2004, plaintiff Robert D'Agostino also owned a motorcycle. Defendant Rider Insurance Company (Rider) issued a motorcycle liability to Mr. D'Agostino for his motorcycle. That policy only provided $15,000 of UM/UIM bodily injury coverage for each person involved in an accident.

On August 17, 2004, D'Agostino collided, while driving his motorcycle, with a car being operated by defendant Dennis Richman and owned by defendant Susan Howell. As a result of this accident, D'Agostino suffered serious personal injuries. Howell's car was insured under a policy providing only $25,000 coverage for each person involved in an accident, and Richman apparently maintained no separate coverage. Howell's liability insurer deposited the full $25,000 limit of its coverage into court.

D'Agostino then filed a claim for UIM benefits with First Indemnity. First Indemnity denied the claim on the ground that the policy it issued to the D'Agostinos excludes UIM coverage for injuries an insured suffers while occupying a vehicle insured by another policy under which the insured is also a named insured.

Plaintiff subsequently filed this action, one count of which sought a declaration that the First Indemnity policy provides UIM coverage for the injuries Mr. D'Agostino suffered in the motorcycle accident.

The coverage issue was brought before the trial court by cross-motions for summary judgment. The trial court concluded that the exclusion from UIM coverage in the First Indemnity policy for accidents in vehicles covered by other insurance is ambiguous as applied to motorcycles because the term "vehicle" is not defined in the policy and the term "highway vehicle" is defined to exclude motorcycles. Therefore, the court decided it was not unreasonable for D'Agostino to believe the First Indemnity policy provided UIM coverage for his motorcycle accident. First Indemnity filed a motion for reconsideration, which the trial court denied by written opinion. Accordingly, the court entered an order requiring submission of the D'Agostinos' UIM claim to arbitration.

First Indemnity filed a notice of appeal from the trial court's declaration that the automobile policy it issued to plaintiffs provides UIM coverage for the injuries Mr. D'Agostino suffered in a motorcycle accident even though he maintained a separate policy for the motorcycle.

Because plaintiffs' claim against Richman is still pending in the trial court, the order from which this appeal has been taken is not a final judgment that is appealable as of right. See Gloucester City Bd. of Educ. v. Am. Arbitration Ass'n, 333 N.J. Super. 511, 519 (App. Div. 2000). However, because the coverage issue has been fully briefed and this issue is separable from plaintiffs' tort claim against Richman, we grant leave to appeal as within time. See Caggiano v. Fontoura, 354 N.J. Super. 111, 124-25 (App. Div. 2002).

First Indemnity's denial of coverage for the injuries D'Agostino suffered in the motorcycle accident was based on exclusion 1 of the UM/UIM coverage provision of its policy, which states:

This insurance does not cover bodily injury or property damage in certain situations.

1. It does not cover bodily injury suffered or property damage incurred by you or a relative while occupying any vehicle insured by another motor vehicle policy in which you were a named insured.

[Emphasis added.]

This exclusion is clear and unambiguous. A motorcycle is a type of vehicle. Although First Indemnity could have included a definition of "vehicle" in its policy, words in an insurance policy that are not specifically defined "should be given their ordinary meaning, and in the absence of ambiguity, a court should not engage in a strained construction to support the imposition of liability." Longobardi v. Chubb Ins. Co. of N.J., 121 N.J. 530, 537 (1990); see also Priest v. Roncone, 370 N.J. Super. 537, 544 (App. Div. 2004). The "ordinary meaning" of "vehicle" includes a "motorcycle." See N.J.S.A. 39:1-1 (defining "vehicle" to mean "every device in, upon or by which a person or property is or may be transported upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks or motorized bicycles."). Therefore, exclusion 1 forecloses D'Agostino from recovering UIM benefits from First Indemnity for the injuries he suffered in an accident while riding the motorcycle insured by Rider. Compare Universal Underwriters Ins. Co. v. N.J. Manufacturers Ins. Co., 299 N.J. Super. 307 (App. Div.), certif. denied, 151 N.J. 73 (1997) (holding that in the absence of an express exclusion of UIM benefits for injury suffered on a motorcycle, such benefits were available under automobile liability policy).

The trial court concluded that even though exclusion 1 is unambiguous when considered in isolation, it is rendered ambiguous when considered in conjunction with exclusion 4 and the policy definition of "highway vehicle" used in this exclusion. Exclusion 4 provides:

[This insurance] does not cover bodily injury suffered or property damage incurred by any insured who was the owner or registrant of a highway vehicle or motorcycle that was being operated without insurance, for any loss incurred while occupying that highway vehicle or motorcycle.

The policy contains the following definition of "highway vehicle":

[A] land motor vehicle designed to be used mainly on public roads, or a trailer. It does not include motorcycles or any vehicle operated on rails or crawler treads. Other motor vehicles are included only while used on public roads.

Exclusion 4 clearly indicates that the First Indemnity automobile policy does not provide UM/UIM coverage to a person who operates a motorcycle without obtaining separate insurance coverage for the motorcycle. There is no reasonable basis for reading this exclusion from coverage as indicating that a person who obtains separate coverage for a motorcycle with lesser UM/UIM benefits than provided under his automobile policy thereby obtains the benefit when operating the motorcycle of the higher UM/UIM coverage provided by his auto policy. See Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979) (noting that "exclusion clauses subtract from coverage [otherwise provided by the policy] rather than grant[ing coverage]."); see also Maimone v. Liberty Mut. Ins. Co., 302 N.J. Super. 299, 305 (App. Div. 1997), certif. denied, 154 N.J. 610 (1998).

The definition of "highway vehicle" upon which the trial court also relied in concluding that exclusion 1 of the First Indemnity policy is ambiguous is not used in exclusion 1. Moreover, this definition indicates that the term "highway vehicle" is a subset of the broader category of "motor vehicle," and that a "motorcycle" is only excluded from the special definition of "highway vehicle" contained in the policy. Thus, this definition assumes that, as in common usage, a "motorcycle" is a "vehicle." Therefore, the special definition of "highway vehicle" in the First Indemnity policy does not introduce any ambiguity into the term "vehicle" as used in exclusion 1.

 
Accordingly, the order of the trial court declaring that the First Indemnity automobile liability policy provides UIM coverage for the injuries D'Agostino suffered in a motorcycle accident is reversed.

The counts of the complaint asserting claims against Howell and Rider have been dismissed.

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A-5518-05T2

April 17, 2007