CHRISTOPHER COX v. KRYSTAL TOMASSO
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0106-17T2
CHRISTOPHER COX,
Plaintiff-Appellant,
v.
KRYSTAL TOMASSO, NJM
INSURANCE GROUP, and/or
NEW JERSEY REINSURANCE
GROUP,
Defendants,
and
NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,
Defendant-Respondent.
________________________________
Argued October 11, 2018 – Decided November 1, 2018
Before Judges Reisner and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1585-16.
Joseph P. Grimes argued the cause for appellant.
Malcolm I. McPherson argued the cause for respondent
(Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys; Malcolm I. McPherson, of counsel and on the
brief).
PER CURIAM
Plaintiff Christopher Cox appeals from a June 23, 2017 order granting
summary judgment in favor of defendant, New Jersey Manufacturers Insurance
Company (NJM).1 We affirm.
Plaintiff was injured when a car driven by Krystal Tomasso struck the
motorcycle he was riding. Plaintiff had insured his motorcycle through Rider
Insurance Company (Rider) under a policy with a $15,000 liability limit, which
was $10,000 less than the $25,000 limit Tomasso had on her car. Thus,
Tomasso's vehicle was not underinsured compared to the coverage on plaintiff's
motorcycle. See N.J.S.A. 17:28-1.1(e)(1) (defining underinsured motor
vehicle).2
However, plaintiff sought underinsured motorist (UIM) benefits under a
$500,000-limit policy he had obtained from NJM to cover his pick-up truck.
1
The complaint improperly named two other entities in addition to NJM.
2
Tomasso tendered the $25,000 available under her policy, and plaintiff settled
with her before filing his notice of appeal.
A-0106-17T2
2
The liability section of the NJM policy specifically stated that NJM did not
provide liability coverage for "the ownership, maintenance or use" of any
vehicle with fewer than four wheels. In other words, NJM did not provide
liability coverage for plaintiff's motorcycle, or for plaintiff while he was riding
a motorcycle.3 Hence, he obtained a separate policy from Rider to cover his
motorcycle. Plaintiff was the named insured on that policy.
The UIM section of the NJM policy (paragraph A.7.) explicitly excluded
coverage for plaintiff "[w]hile occupying any vehicle insured by another motor
vehicle policy in which you or a family member are a named insured." That
provision further stated: "However, this exclusion . . . does not affect UM/UIM
coverage for minimum limits required by New Jersey law for liability coverage
as set forth in N.J.S.A. 39:6A-3."4 NJM denied plaintiff's UIM claim on the
basis of this exclusion, because he was the named insured on the Rider
motorcycle policy, and Tomasso's vehicle had limits higher than the $15,000
minimum required by law.
3
The exclusion had an exception, not relevant here, for use of a vehicle in a
medical emergency.
4
This statutory section, which was underlined in the policy, requires minimum
liability coverage of $15,000 per person injured. N.J.S.A. 39:6A-3(a).
A-0106-17T2
3
The trial judge granted NJM summary judgment, reasoning that the policy
exclusion was unambiguous and was clearly applicable to plaintiff's situation.
He also concluded that the exception for the minimum required limits for
liability coverage did not render the exclusion ambiguous. The trial judge
rejected plaintiff's argument that the NJM Buyer's Guide created an ambiguity
in the policy.
On this appeal, plaintiff presents the following points of argument:
Point One: NJM's Policy as Exclusion [A.]7 is unclear,
ambiguous, contrary to the reasonable expectations of
the insured and contrary to public policy.
Point Two: The lower Court erred in failing to find that
the Buyer's Guide provided by Insurer which did not
mention the UIM step down provisions of the policy
conflicted with Insurer's policy language thereby
creating an ambiguity regarding the enforceability of
the step-down provision.
Point Three: The lower Court erred in finding that UIM
coverage follows the vehicle and not the insured.
On appeal, we owe no deference to the trial court's legal interpretations,
including the interpretation of an insurance contract. See Polarome Int'l, Inc. v.
Greenwich Ins. Co., 404 N.J. Super. 241, 259-60 (App. Div. 2008). Having
engaged in de novo review, we find no merit in any of plaintiff's arguments. We
affirm substantially for the reasons stated by the trial judge, and for the reasons
A-0106-17T2
4
stated in this opinion. Except as addressed herein, plaintiff's appellate
arguments are without sufficient merit to warrant additional discussion. R. 2:11-
3(e)(1)(E).
In construing an insurance policy, we bear in mind that insurance policies
are contracts of adhesion drafted by experts but read by consumers who are lay
persons. See Polarome, 404 N.J. Super. at 258. Accordingly, we strive to give
effect to the insured's reasonable expectations, and we construe genuinely
ambiguous clauses favorably to the insured. Templo Fuente De Vida Corp. v.
Nat'l Union Fire Ins. Co., 224 N.J. 189, 200, 205 (2016). Nonetheless, an
"insurance policy that is clear and unambiguous should be enforced as written."
Universal Underwriters Ins. Co., Recreational Prod. Ins. Div. v. N.J. Mfrs. Ins.
Co., 299 N.J. Super. 307, 312 (App. Div. 1997). If the policy's plain language
is unambiguous, "we will not 'engage in a strained construction to support the
imposition of liability' or write a better policy for the insured than the one
purchased." Templo, 224 N.J. at 200 (citation omitted). We agree with the trial
judge that the NJM policy is not genuinely ambiguous, and the trial judge's
interpretation of the policy is consistent with the insured's reasonable
expectations.
A-0106-17T2
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Plaintiff misplaces reliance on Worldwide Underwriters Insurance Co. v.
Brady, 973 F.2d 192 (3d Cir. 1992), a case he cites in support of an argument
presented to us for the first time in his reply brief. Worldwide concerned a
liability insurance policy that contained an exclusion for injuries to family
members of the insured. Id. at 192. The Supreme Court of Pennsylvania had
previously found the exclusion violated the public policy underlying that state's
insurance statutes. 5 Id. at 192-93 n.2. However, the Pennsylvania Insurance
Department later permitted the exclusion so long as it provided at least the
minimum coverage required by state law. Id. at 193. Reflecting that exception,
the policy language read as follows:
We do not provide Liability Coverage for any person
for bodily injury to you or any family member to the
extent that the limits of liability for this coverage
exceed the limits of liability required by the
Pennsylvania Motor Vehicle Financial Responsibility
Law of 1984.
[Ibid.]
The Third Circuit concluded that because the exclusion did not reveal "the
dollar amount limit" set forth in the cited statute, the policyholder would have
5
New Jersey courts have reached a similar conclusion with respect to auto
insurance policies. See Zacarias v. Allstate Ins. Co., 168 N.J. 590, 599 (2001)
(citing Kish v. Motor Club of Am. Ins. Co., 108 N.J. Super. 405 (1970)).
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6
no idea what the clause meant. Id. at 196. The court further reasoned:
"[c]onsidering, as we should, the document as a whole, we find that the
exclusion does not inform the insured that full coverage for his family members
was compromised." Ibid. (citation omitted). Relying on Worldwide, plaintiff
argues that the statutory reference in the NJM policy likewise renders the A.7
exclusion ambiguous.
Worldwide is not binding on us. However, we also conclude it is not on
point here. Unlike the policy provision in Worldwide, the NJM exclusion began
with a complete sentence clearly stating a general exclusion. A reasonable
reader would understand the exclusion as meaning that if, as here, he had insured
a vehicle with another insurance company and was a named insured on that
policy, NJM would not provide UIM coverage for the use of that vehicle. In
that context, the second sentence, stating an exception to the exclusion, for
"minimum" limits required by law, would not lead a reasonable reader to believe
that NJM would provide $500,000 in UIM coverage for the use of such a vehicle.
Moreover, in Worldwide, the exclusion denied the insured one of the most
central and legally-required benefits of auto insurance – liability coverage – in
a way that the average reasonable consumer would not expect. By contrast,
here, it should have come as no surprise to plaintiff that NJM would not provide
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UIM coverage when he was riding a motorcycle for which he had purchased
separate coverage from another insurer, particularly when the NJM policy
explicitly stated that it did not cover vehicles with fewer than four wheels (e.g.,
motorcycles). See DiOrio v. N.J. Mfrs. Ins. Co., 79 N.J. 257, 269-70 (1979)
(upholding an exclusion for a regularly-used vehicle that was not listed on the
policy).
While we do not conclude that the result here is required by public policy,
as opposed to by the clear wording of the A.7 clause, it is consistent with the
purpose of the UIM statute, N.J.S.A. 17:28-1.1(b). That statute limits the
purchase of UIM coverage to the amount of liability insurance the insured ha s
purchased. Ibid.; see Aubrey v. Harleysville Ins. Co., 140 N.J. 397, 402 (1995).
Thus, an insured can obtain more UIM coverage by buying more liability
insurance. This provides greater protection for both the insured and anyone the
insured injures with his or her vehicle. In buying only a minimum-liability
policy for his motorcycle, which was his only liability coverage for that vehicle,
plaintiff provided only $15,000 in liability protection for himself and in
potential financial recovery for anyone he injured with his motorcycle. We
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perceive no violation of public policy in limiting plaintiff to UIM coverage equal
to the liability insurance he purchased for the motorcycle. 6
Plaintiff's reliance on Universal is also misplaced. Universal was a
dispute between two insurance companies. 299 N.J. Super. at 310-11. In that
case, as here, the insured had an NJM liability policy covering his automobiles
but not his motorcycle, which was separately insured by Universal Underwriters
Insurance Co. (Universal). Id. at 311. The insured got into an accident while
riding his motorcycle, and Universal claimed that NJM should contribute to his
UIM coverage. Ibid. As here, the liability section of the NJM policy excluded
liability coverage for motorcycles, i.e., for motorized vehicles with fewer than
four wheels. Id. at 311-12. However, unlike this case, in Universal, the UIM
section of the NJM policy had no exclusion for injury to an insured while using
a vehicle insured under another policy. Id. at 313-15.
Under those circumstances, the court rejected NJM's argument that either
the coverage parity provisions of N.J.S.A. 17:28-1.1(b), or the motorcycle
6
We need not reach, and do not intend to address, factual situations not
presented in this case. We remind readers that this opinion is unpublished, is
not precedential, and per Rule 1:36-3, should not be cited by any court. See
Wright v. Bank of America, N.A., __ N.J. Super. __, __ n.5 (App. Div. 2018)
(slip op. at 8 n.5).
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exclusion provision in the liability section of the policy would operate to limit
the insured's right to UIM coverage for the motorcycle accident. 7 Id. at 318,
322-23. The court concluded:
[S]ince NJM's policy provides UIM coverage for
injuries sustained by an insured in an accident with an
underinsured motorist, regardless of whether the
vehicle the insured is occupying is insured under its
policy, and NJM by its policy terms agrees to share in
the loss if other insurance is applicable, NJM must
participate in the loss.
[Id. at 315.]
Universal is not on point here, because the NJM policy in this case has an
unambiguous exclusion for situations where the insured is using a vehicle he
owns, on which he is the named insured on another insurance policy. For that
reason, plaintiff's argument that UIM coverage is "linked to the injured person,
not the covered vehicle," is unavailing. (quoting Aubrey, 140 N.J. at 403). In
this case, the policy language specifically excludes UIM coverage to the injured
7
Judge Landau's concurring opinion noted that, in effect, the insured "may have
succeeded in buying UIM coverage for motorcycle accidents at regular
automobile rates, without the knowledge of the automobile liability carrier." Id.
at 323. Judge Landau suggested that the NJM policy could have included
language specifically limiting its UIM coverage to "accidents for which liability
coverage also exists" under the NJM policy. Id. at 324. He concurred in the
result because there was no such limiting language.
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person, albeit based on his use of a vehicle which he insured under a separate
policy.
Affirmed.
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