CAROLE ZELIG v. TOWER GROUP COMPANIES

NOT FOR PUBLICATION WITHOUT THE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-5518-15T3

CAROLE ZELIG,

        Plaintiff-Respondent,

v.

TOWER GROUP COMPANIES,

        Defendant-Appellant,

and

STATE FARM INDEMNITY COMPANY,

        Defendant.

              Argued May 15, 2018 – Decided May 25, 2018

              Before Judges Fasciale and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Docket No. L-
              3168-12.

              Robert J. Gillispie argued the cause for
              appellant   (Mayfield,  Turner,   O'Mara   &
              Donnelly, PC, attorneys; Michael J. O'Mara,
              of counsel; Robert J. Gillispie, Jr., on the
              briefs).

              Thomas F. Reynolds argued the cause for
              respondent   (Reynolds   &  Scheffler,   LLC,
              attorneys; Thomas F. Reynolds, on the brief).
PER CURIAM

     The Tower Group Companies (defendant) appeals from a July 20,

2016 order requiring that the parties arbitrate the legal question

of whether plaintiff was an "insured" under the terms of an

uninsured and underinsured motorist endorsement (the endorsement)

contained in defendant's commercial automobile liability insurance

policy.    We reverse and remand.

     Plaintiff was a passenger in a Hyundai owned and operated by

her friend (the friend).     A tortfeasor, who owned and operated a

Nissan, failed to yield and made a left turn in front of the

Hyundai.    The vehicles collided and plaintiff sustained injuries.

Plaintiff    settled   her   personal   injury   claim   against   the

tortfeasor, and then she filed a complaint seeking underinsured

motorist (UIM) benefits from defendant.1

     Defendant issued its policy to This and That Uniform, LLC

(This and That), a company partially owned by plaintiff.           The

parties filed motions for summary judgment in part to determine

whether plaintiff was an "insured" under the basic insuring clause

in the endorsement.    The judge denied the motions, referred the




1
     Plaintiff also named the friend's UIM carrier (State Farm
Indemnity Company) as a party.      State Farm obtained summary
judgment and is not involved in this appeal.

                                    2                         A-5518-15T3
matter to arbitration, and directed the arbitrator to resolve that

legal question.

     On appeal, defendant argues that the judge erred by requiring

the parties to arbitrate whether plaintiff is an "insured" under

the endorsement.       Defendant maintains that the judge should have

decided this legal question.          Although the judge referred the

matter to arbitration and directed the arbitrator to decide the

question – and therefore did not adjudicate the matter on the

merits – defendant urges us to find that plaintiff is not an

"insured."     We decline to exercise original jurisdiction; we

remand, and leave the details of the analysis to the judge in the

first instance.

     Defendant asserts that whether plaintiff is an "insured"

depends on whether she occupied a "covered 'auto' or a temporary

substitute for a covered 'auto.'"           Defendant contends that under

the endorsement, "the covered 'auto' 'must be out of service

because   of     its     breakdown,       repair,   servicing,   loss     or

destruction.'"    Even if plaintiff was conducting business for This

and That at the time of the underlying accident – as another judge

apparently found – defendant argues that plaintiff was not an

"insured" because she was not occupying a covered vehicle as

described in the endorsement.



                                      3                            A-5518-15T3
       The judge did not render a final determination – as he stated

in his written opinion – "as to whether or not [p]laintiff can

meet the definition of an 'insured' under the basic insuring clause

contained in the . . . endorsement."       The judge concluded that

"the    coverage   issue   is   appropriate   for   [c]ommon      [l]aw

[a]rbitration."    But the endorsement itself says that "disputes

concerning coverage . . . may not be arbitrated."

       Reversed and remanded.   We do not retain jurisdiction.2




2
  As to the court's order dated April 30, 2018, defendant may seek
similar relief on remand.

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