KEITH M. WITTE, v. MARIA AVINION
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-0501-20
KEITH M. WITTE, OLHA
WITTE and OLIVIA M. WITTE,
a minor, by and through her
natural parent and guardian
ad litem, OLHA WITTE,
Plaintiffs-Respondents,
v.
MARIA AVINION and
ALLSTATE INSURANCE
COMPANY,
Defendants,
and
AURORA D. MARZANO
and NEW JERSEY
MANUFACTURERS
INSURANCE COMPANY,
Defendants-Appellants.
____________________________
Argued September 16, 2021 – Decided November 15, 2021
Before Judges Gilson and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-4390-19.
Stephen J. Foley, Jr., argued the cause for appellants
(Campbell, Foley, Delano & Adams, LLC, attorneys;
Stephen J. Foley, Jr., on the briefs).
Brian D. Barr argued the cause for respondents (Cooper
Levenson, PA, attorneys; Brian D. Barr and Jennifer B.
Barr, on the briefs).
PER CURIAM
In this insurance coverage dispute, defendants New Jersey Manufacturers
Insurance Company (NJM) and its insured, Aurora Marzano, appeal from the
May 13, 2020 Law Division order 1 granting summary judgment to plaintiffs
Keith and Olha Witte, and their daughter, Olivia, and the June 23, 2020 order
deeming plaintiffs successful claimants entitled to an award of counsel fees
pursuant to Rule 4:42-9(a)(6).2 Plaintiffs filed a declaratory judgment action
seeking liability insurance coverage from NJM for injuries they sustained in an
automobile accident that occurred on December 26, 2018, involving a vehicle
1
A final order was entered on October 16, 2020, dismissing with prejudice the
other named defendants from the case, allowing the appeal as of right of the May
13, 2020 order pursuant to Rule 2:2-3(a).
2
A counsel fee award of $16,500 was later agreed upon by the parties and
memorialized in a September 22, 2020 consent order.
A-0501-20
2
owned by Marzano's son, Brian Avinion, insured by Allstate Insurance
Company (Allstate), and operated by Marzano's daughter, Maria Avinion. Both
Brian3 and Maria resided with Marzano. Although Maria was listed as a covered
driver on her mother's automobile insurance policy with NJM at the time of the
accident, NJM disclaimed coverage, contending Maria was not the named
insured and was not operating an auto covered by the NJM policy. In granting
summary judgment to plaintiffs on the parties' cross-motions, after examining
the policy language, the judge rejected NJM's contention and determined Maria
was entitled to coverage for the accident under the NJM policy.
On appeal, defendants raise the following points for our consideration:
POINT I: THE INSTANT APPEAL IS SUBJECT TO
DE NOVO REVIEW FOR WHICH NO DEFERENCE
IS DUE TO THE TRIAL COURT'S
DETERMINATION OF LAW.
POINT II: THE TERMS OF NJM'S EXCLUSION ARE
CLEAR AND UNAMBIGUOUS AND SHOULD
HAVE BEEN ENFORCED BY THE TRIAL COURT
AS WRITTEN.
POINT III: THE DECLARATIONS PAGE OF NJM'S
POLICY PROVIDED NO BASIS TO EXPECT
DEFENDANT MARIA AVINION TO BE COVERED
BY NJM FOR HER OPERATION OF HER BROTHER
BRIAN'S CAR.
3
We refer to the Avinions by their first names to avoid any confusion caused
by their common surname and intend no disrespect.
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3
POINT IV: REVERSAL OF THE TRIAL COURT'S
ORDER REQUIRING NJM TO PROVIDE
LIABILITY INSURANCE COVERAGE TO MARIA
AVINION WARRANTS REVERSAL OF THE
COURT'S SUBSEQUENT DETERMINATION THAT
PLAINTIFFS WERE "SUCCESSFUL CLAIMANTS"
ENTITLED TO AN AWARD OF ATTORNEYS' FEES
PURSUANT TO [RULE 4:42-9(A)(6)]. (NOT
RAISED BELOW).
Having considered the arguments and applicable legal principles, we affirm.
We derive the following facts from evidence submitted by the parties in
support of, and in opposition to, the summary judgment cross-motions, viewed
in the light most favorable to the non-moving parties. Angland v. Mountain
Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins.
Co., 142 N.J. 520, 523 (1995)).
Prior to the accident, Maria resided with her mother and brother in Union
Beach since February 2018. In December 2018, there were five vehicles garaged
at the residence. Three of the vehicles, consisting of a Chevrolet four-door sedan
and two Dodge vans, were listed on an NJM policy issued to Marzano. The
listed drivers on the NJM policy were Maria and Marzano. The other two
vehicles in the household, one of which was a Nissan Rogue, the vehicle
involved in the accident, were owned by Brian and insured by Allstate. During
her deposition, Maria testified she drove the Nissan Rogue "[m]aybe two times
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a month." In fact, she alternated between driving the Chevrolet and the Nissan
Rogue roughly two times a month. While Marzano paid the monthly NJM
premiums, Maria testified she contributed periodically by "giving her [mother]
[fifty dollars] every time she . . . ask[ed her], but it [was not] really monthly."
NJM admitted "charg[ing] a premium for Maria . . . as a driver/operator."
On December 26, 2018, Maria was driving the Nissan Rogue when she
struck plaintiffs while they were crossing a street in Red Bank, running over
then six-year-old Olivia. As a result, Olivia suffered extensive facial injuries,
tissue loss, and other orthopedic injuries and required surgery. Her parents also
sustained significant orthopedic injuries. Plaintiffs sued Maria and her brother
and Allstate provided liability insurance coverage in connection with that
lawsuit. When plaintiffs made a demand on NJM to provide excess liability
insurance coverage to Maria, NJM disclaimed coverage based upon the policy's
exclusion of coverage for damages arising from an "insured's," other than the
"named insured's," operation of a family member's vehicle not listed in the
policy declarations.
At the time of the accident, the NJM policy declarations endorsement
identified Marzano as the named insured and listed Marzano and Maria as
covered drivers. The Chevrolet and the two Dodge vans were listed as covered
A-0501-20
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vehicles with $500,000 liability coverage for each accident, as well as other
limits and deductibles. Accompanying the declarations endorsement was NJM's
nineteen-page standard auto policy, divided into seven parts in addition to
definitions and endorsements sections.
Part A of the policy described liability coverage as follows:
A. We will pay damages for bodily injury or property
damage for which any insured becomes legally
responsible because of an auto accident. We will settle
or defend, as we consider appropriate, any claim or suit
asking for these damages. In addition to our limit of
liability, we will pay all defense costs we incur. Our
duty to settle or defend ends when our limit of liability
for this coverage has been exhausted by payment of the
policy limits. We have no duty to defend any suit or
settle any claim for bodily injury or property damage
not covered under this policy.
B. Insured as used in this Part means:
1. You or any family member for the
ownership, maintenance or use of any auto
or trailer;
2. Any person using your covered auto
....
Part A also contained the following exclusions relative to the use of a
family member's vehicle:
B. We do not provide Liability Coverage for the
ownership, maintenance or use of:
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....
3. Any vehicle, other than your covered
auto, which is:
a. Owned by any family member; or
b. Furnished or available for the
regular use of any family member.
However, this Exclusion (B.3.) does not
apply to your maintenance or use of any
vehicle which is:
a. Owned by a family member; or
b. Furnished or available for the
regular use of a family member.
Part A further limited the scope of liability coverage as follows:
OTHER INSURANCE:
If there is other applicable liability insurance we will
pay only our share of the loss. Our share is the
proportion that our limit of liability bears to the total of
all applicable limits. However, any insurance we
provide for a vehicle you do not own, including any
vehicle while used as a temporary substitute for your
covered auto, shall be excess over any other collectible
insurance.
In the definitions section, the policy defined "you and your" as referring to "the
named insured shown in the Declarations" and "the spouse" or "civil union"
partner of the named insured. "Family member" was defined as "a person related
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. . . by blood, marriage, civil union . . . or adoption who is a resident of [the
named insured's] household."
On December 13, 2019, plaintiffs filed a declaratory judgment complaint
against NJM, Marzano, Maria, and Allstate seeking to have NJM provide excess
liability insurance coverage for the accident to Maria as an insured driver under
the policy. Following discovery, NJM moved for summary judgment, seeking
the dismissal of plaintiffs' claims on the ground that the vehicle Maria was
driving when the accident occurred was not one of the covered vehicles insured
under Marzano's automobile policy with NJM, and Maria was not the named
insured as defined in the NJM policy and therefore did not qualify for the
exception to the exclusion contained in B.3. Thus, according to NJM, the B.3.
exclusion barred any coverage to Maria under the NJM policy.
Plaintiffs opposed NJM's motion and cross-moved for summary
judgment, asserting Maria was expressly included as an insured driver on NJM's
declarations page, which did not identify or set forth any exclusions or
circumstances where she would not be covered or insured for an automobile
accident, NJM charged a premium for Maria as a driver under the policy, Maria
had lived with her mother for approximately eight months before the accident,
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and Maria expected the NJM liability policy would cover her for any accidents
in which she was a driver.
Following oral argument conducted on April 9, 2020, the motion judge
entered two orders: one dated May 13, 2020, denying defendants' motion for
summary judgment and granting plaintiffs' cross-motion for summary judgment;
and another dated June 23, 2020, deeming plaintiffs successful claimants
entitled to counsel fees pursuant to Rule 4:42-9(a)(6). In the statement of
reasons accompanying the May 13 order, the judge recounted the undisputed
facts as agreed to by the parties, detailed the respective arguments, cited the
applicable legal principles, reviewed the policy language, and explained her
rationale.
The judge cited Lehrhoff v. Aetna Casualty & Surety Co., 271 N.J. Super.
340 (App. Div. 1994), where we declined to apply hidden policy language that
departed from reasonable expectations of coverage created by a declarations
page "unless the declaration[s] page itself clearly so warns the insured." Id. at
347. We were "convinced that it is the declaration[s] page, the one page of the
policy tailored to the particular insured and not merely boilerplate, which must
be deemed to define coverage and the insured's expectation of coverage." Ibid.
The judge found equally persuasive Araya v. Farm Family Casualty Insurance
A-0501-20
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Co., 353 N.J. Super. 203 (App. Div. 2002), where we specifically addressed the
entitlement to insurance coverage of "the covered drivers listed in the
Declarations Page" where the covered drivers were different from the named
insured, and again "recognized the singular importance of the Declarations Page
as the best indicator of what an insured's reasonable expectations should be."
Id. at 209-211 (citing Lehrhoff, 271 N.J. Super at 346-347).
Consistent with the principles in Lehrhoff and Araya, the judge concluded
Maria was "entitled to coverage under the NJM policy" as "she reasonably
expected in accordance with the declaration[s] page of the policy." The judge
explained:
NJM concedes inclusion of Maria Avinion as a listed
insured on its own declaration[s] page. NJM's
declaration[s] page does not state[] that the insured
information on the declaration[s] page is "subject to the
terms of the policy." The specific limits, coverages,
deductibles, insured vehicles, and discounts are
specifically identified and referenced on the NJM
declarations. NJM does not identify, point out, or
advise that Maria Avinion would not be covered if she
was driving someone else's, or even a different family
member's[] vehicle. NJM should not be allowed to
"take away coverage" that is specifically identified in
the declarations . . . . in a boilerplate exclusion.
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The judge was satisfied "the declaration[s] page could reasonably have
led Maria Avinion to believe" she was "a covered driver under the policy ." The
judge elaborated further:
Maria Avinion was listed on the declaration[s] page as
a "covered" driver. Maria Avinion paid premiums as a
covered driver under the NJM policy. Even under the
terms of the NJM policy, if Aurora Marzano had been
operating the vehicle, she would have been covered
. . . for this accident. Both Aurora Marzano and Maria
Avinion are identified, and the only listed premium
paying drivers under the NJM policy . . . . This is not
a situation where use of the vehicles increases the risk
on the insurance company without increase in the
premium. Marzano and [Maria] insured and paid
premiums for three . . . vehicles and two . . . drivers –
including Maria Avinion. NJM admittedly charged
premiums for Maria Avinion's operation of
automobiles. [] The mere fact that Maria Avinion was
operating her brother's vehicle at the time of the
accident does not overcome her reasonable
expectations of coverage under the NJM policy. Courts
have refused to allow insurance companies to accept
premiums and then disclaim coverage – exactly the case
before the [c]ourt. NJM's declaration[s] page does not
identify any exclusions or specifically reference any
exclusions or limits of coverage when its insured
driver, Maria Avinion, operates a family member's
vehicle.
The [c]ourt finds that it would be fundamentally
unfair to allow a driver who believed she was covered
because she was listed as a "covered" driver, as well as
paid premiums into the policy under the belief that she
was covered, to be disclaimed coverage under the
A-0501-20
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policy because of exclusion language buried deep in the
policy.
In this ensuing appeal, NJM argues the judge "erred in [her] application
of the law to the undisputed facts of th[e] case." NJM asserts the judge's reliance
on Lehrhoff and Araya is misplaced because "neither involved the identification
of the vehicles for which those coverages were provided." According to NJM,
its "[B.3.] Exclusion . . . bars coverage for [Maria's] operation of her brother's
car at the time of the December 26, 2018 accident" and because Maria was not
"the policy's 'named insured,'" she does not "fall within the exception to the
exclusion" applicable to Marzano. NJM adds "neither [p]laintiffs nor the trial
court identified any ambiguity in the exclusion or in the definitional terms of the
policy."
We review a grant of summary judgment applying the same standard used
by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366
(2016). That standard is well-settled.
[I]f the evidence of record — the pleadings,
depositions, answers to interrogatories, and affidavits
— "together with all legitimate inferences therefrom
favoring the non-moving party, would require
submission of the issue to the trier of fact," then the trial
court must deny the motion. On the other hand, when
no genuine issue of material fact is at issue and the
moving party is entitled to a judgment as a matter of
law, summary judgment must be granted.
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[Ibid. (quoting R. 4:46-2(c)) (citing Brill, 142 N.J. at
540).]
Where, as here, there is no genuine issue of material fact, we must "decide
whether the trial court correctly interpreted the law." DepoLink Ct. Reporting
& Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013)
(quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div.
2007)). We review issues of law de novo and accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Turning our discussion to the legal principles governing insurance
contract interpretation, two well-settled principles guide our analysis:
First, in enforcing an insurance policy, courts will
depart from the literal text and interpret it in accordance
with the insured's understanding, even when that
understanding contradicts the insurer's intent, if the text
appears overly technical or contains hidden pitfalls,
cannot be understood without employing subtle or
legalistic distinctions, is obscured by fine print, or
requires strenuous study to comprehend.
[Zacarias v. Allstate Ins. Co., 168 N.J. 590, 601 (2001)
(citations omitted).]
"On this score, under the longstanding 'doctrine of reasonable
expectations,' courts should give effect to 'the objectively reasonable
expectations of applicants and intended beneficiaries regarding the terms of
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insurance contracts.'" Cassilli v. Soussou, 408 N.J. Super. 147, 153 (App. Div.
2009) (quoting Zacarias, 168 N.J. at 595). Under the reasonable expectations
doctrine, "an objectively reasonable interpretation of the average policyholder
is accepted so far as the language of the insurance contract in question will
permit." DiOrio v. N.J. Mfrs. Ins. Co., 79 N.J. 257, 269 (1979).
To that end, in Lehrhoff, we held that a policy holder's "reasonable
expectations of coverage raised by the declaration[s] page cannot be
contradicted by the policy's boilerplate," whether or not in plain language,
"unless the declaration[s] page itself clearly so warns the insured." 271 N.J.
Super. at 347. In Zacarias, our Supreme Court "share[d] the sentiments
expressed" in Lehrhoff that "the one page most likely to be read and understood
by the insured [was] the declarations sheet" and urged insurers "to explore ways
to incorporate as much information as may be reasonably included in the
declarations sheet." Zacarias, 168 N.J. at 602-04.
Thus, the average policyholder does not have a duty to "chart his [or her]
own way through the shoals and reefs of exclusions," and may rely solely on his
or her reasonable expectations flowing from the representations on the
declarations page to determine the extent of his or her coverage. Lehrhoff, 271 N.J. Super. at 347. "Of course, for a policyholder's expectations to govern over
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the plain language of an insurance contract, his or her expectations must be
objectively reasonable." Cassilli, 408 N.J. Super. at 154 (citing Clients' Sec.
Fund of the Bar of N.J. v. Sec. Title & Guar. Co., 134 N.J. 358, 372 (1993)).
Second, "the words of an insurance policy are to be given their plain,
ordinary meaning," Zacarias, 168 N.J. at 595, and the plain terms of the contract
will be enforced as long as the "'entangled and professional interpretation of an
insurance underwriter is [not] pitted against that of an average purchaser of
insurance,' or the provision is not so 'confusing that the average policyholder
cannot make out the boundaries of coverage.'" Id. at 601 (alteration in original)
(first quoting DiOrio, 79 N.J. at 270; then quoting Weedo v. Stone-E-Brick, Inc.,
81 N.J. 233, 247 (1979)). Thus, where an ambiguity exists, "courts will construe
ambiguous language in favor of coverage for the insured." Cassilli, 408 N.J.
Super. at 154 (citing Doto v. Russo, 140 N.J. 544, 556 (1995)). "An ambiguity
exists in an insurance contract '[w]hen an insurance policy's language fairly
supports two meanings, one that favors the insurer, and the other that favors the
insured . . . .'" Ibid. (alterations in original) (quoting President v. Jenkins, 180 N.J. 550, 563 (2004)). However, "[i]n the absence of ambiguity, . . . a court
must enforce the policy as written." Ibid. (citing Priest v. Roncone, 370 N.J.
Super. 537, 544 (App. Div. 2004)).
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These general rules of construction have spawned a universal recognition
that "where the policy provision under examination relates to the inclusion of
persons other than the named insured within the protection afforded, a broad and
liberal view is taken of the coverage extended." Mazzilli v. Accident & Cas.
Ins. Co. of Winterthur, Switzerland, 35 N.J. 1, 8 (1961). "But, if the clause in
question is one of exclusion or exception, designed to limit the protection, a
strict interpretation is applied." Ibid. We have previously distinguished the two
classes of covered individuals in an insurance contract as follows:
[T]he term "named insured" is self-defining. The term
refers only to the names so appearing in the
declaration[s sheet].
On the other hand, an insured is any one who is
entitled to coverage. This coverage may result by
virtue of a person's status as an operator or occupier of
a covered auto.
[Botti v. CNA Ins. Co., 361 N.J. Super. 217, 226 (App.
Div. 2003) (citations omitted).]
"In other words, those listed as 'named insureds' are not necessarily the
only individuals covered under the policy," and "[o]ther individuals not listed
as 'named insureds' may be entitled to liability coverage under certain
circumstances enumerated by the policy." Cassilli, 408 N.J. Super. at 155
(internal citations omitted). "Thus, being an 'insured' under a policy 'is a
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combination of status and circumstance,'" ibid. (quoting Webb v. AAA Mid-Atl.
Ins. Grp., 348 F. Supp. 2d 324, 331 (D.N.J. 2004)), and, undoubtedly, being a
covered driver would render one "a potential insured," entitled to coverage under
the policy. Ibid. (emphasis omitted).
With these principles in mind, we turn to the governing language in the
policy at issue. NJM essentially argues coverage should be denied because
Maria was not a named insured and was not driving one of the covered vehicles
listed on the policy. In our view, several factors support the conclusion that
Maria is entitled to coverage for the December 2018 accident under the NJM
policy. First, we agree with the judge that the "reasonable expectations
doctrine" espoused in Lehrhoff supports providing coverage for Maria.
Undeniably, NJM's declarations page listed Maria as a covered driver under the
policy and does not identify any exclusions limiting coverage when operating a
family member's vehicle. Instead, the exclusionary language is hidden
elsewhere in the policy. Under these circumstances, Maria's reasonable
expectations of coverage raised by the declarations page cannot be contradicted
by the policy's exclusionary language contained elsewhere. 4
4
To support its contention that Maria had no expectation of coverage, NJM
points to Maria's deposition testimony in which she professed ignorance "about
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Further, it is noteworthy that NJM acknowledges that if Marzano had been
operating the vehicle, she would have been covered under the exception to the
exclusion. Based on the language in the declarations page, as a covered driver,
Maria is entitled to the same benefit. The drafters of the NJM policy could have
easily and unambiguously disclaimed liability for listed drivers by carving out
an exception on the declarations page specifying that unless you are a named
insured, the policy only provides you with coverage if you are operating one of
the listed covered autos. Because the declarations page provided no such
warning to Maria, the "reasonable expectations doctrine" controls. Indeed, as
we acknowledged in Lehrhoff, "[t]he interpretation of insurance contracts to
accord with the reasonable expectations of the insured, regardless of the
existence of any ambiguity in the policy, constitutes judicial recognition of the
unique nature of contracts of insurance." Id. at 348 (quoting Sparks v. St. Paul
Ins. Co., 100 N.J. 325, 338 (1985)).
insurance" while acknowledging that "all the[] cars [were] insured" and her
expectation that she would be covered by liability insurance when involved in
an accident in which she was driving. However, not only does Maria's
deposition testimony not support defendants' position but it is the objectively
reasonable expectations of "the typical automobile policyholder," Lehrhoff, 271 N.J. Super. at 348, or the "intended beneficiar[y]," Cassilli, 408 N.J. Super. at 153, that controls.
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Thus, based on our de novo review, we are satisfied the judge properly
granted summary judgment to plaintiffs. After oral argument, we granted NJM's
motion to file a supplemental brief citing Cassilli to support its contention that
the exclusion is not ambiguous. However, because we affirm the judge's
decision based on the "reasonable expectations doctrine," we need not address
that contention. Additionally, because defendants' only basis for challenging
the award of counsel fees under Rule 4:42-9(a)(6) is the purported "error
committed by the trial court in granting [p]laintiffs' cross-motion for summary
judgment," we likewise find no error in the award. See R. 4:42-9(a)(6) (allowing
a court to award counsel fees "[i]n an action upon a liability or indemnity policy
of insurance, in favor of a successful claimant").
Affirmed.
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