MARIA LOPEZ MENJIVAR v. GLORIA RAMIREZ

NOT FOR PUBLICATION WITHOUT THE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-0615-20

MARIA LOPEZ MENJIVAR,

          Plaintiff-Appellant,

v.

GLORIA RAMIREZ AND
NELTSON WILFREDO,

          Defendants,

and

STATE FARM INSURANCE
COMPANY,

     Defendant-Respondent.
____________________________

                   Argued November 4, 2021 – Decided December 22, 2021

                   Before Judges Fuentes, Gilson, and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Docket No. L-0387-20.

                   Randi S. Greenberg argued the cause for appellant
                   (Thomas E. Hood, PA, attorneys; Thomas E. Hood, of
            counsel and on the briefs; Randi S. Greenberg, on the
            briefs).

            Mario A. Batelli argued the cause for respondent
            (Foster & Mazzie, LLC, attorneys; Carl Mazzie and
            Marc S. Mace, on the briefs).

            Timothy J. Foley argued the cause for amicus curiae
            New Jersey Association for Justice (Foley & Foley,
            attorneys; Sherry L. Foley and Timothy J. Foley, of
            counsel and on the brief).

PER CURIAM

      This appeal involves the interpretation of an automobile insurance policy

issued to a corporation.   Plaintiff Maria Lopez-Menjivar appeals from an

October 16, 2020 order granting summary judgment to defendant State Farm

Insurance Company (State Farm) and dismissing her claim for underinsur ed

motorist (UIM) coverage. The trial court held that State Farm's policy did not

provide UIM coverage to plaintiff, who was not an employee of the insured

corporation. We agree and affirm.

                                       I.

      The material facts are not in dispute and were established in the summary-

judgment record. Plaintiff was a passenger in a minivan and was injured when

another vehicle rear-ended the van.




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      Plaintiff, her friend, Yamira Peraza-Rodriguez, and plaintiff's boyfriend,

Calvin Tzul, had just returned from visiting a casino in Pennsylvania. Peraza-

Rodriguez had driven the minivan, a Toyota Sienna, and had parked it on the

side of a street in Plainfield, near where plaintiff and Tzul lived. Plaintiff was

seated in a back-passenger seat when a vehicle driven by Neltson Wilfredo

struck the rear-end of the van. As a consequence, plaintiff suffered personal

injuries.

      The vehicle driven by Wilfredo was owned by Gloria Ramirez. Ramirez

had a basic automobile insurance policy that did not include bodily-injury

liability coverage. The minivan was owned by a limited liability corporation, J

& Y Drywall (J&Y LLC), which had an automobile insurance policy issued by

State Farm. Neither plaintiff nor Tzul were employees of J&Y LLC. The record

does not explain what relationship, if any, Peraza-Rodriguez had to J&Y LLC.

It is undisputed that, at the time of the accident, the minivan was not being used

for a business purpose related to J&Y LLC.

      In January 2020, plaintiff sued Ramirez and Wilfredo. Neither Ramirez

nor Wilfredo answered or responded to the complaint. Thereafter, because

plaintiff had failed to prosecute the claims against Ramirez and Wilfredo, the

trial court administratively dismissed without prejudice the claims against


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Wilfredo and issued a notice that it intended to dismiss the claims against

Ramirez.

      In July 2020, plaintiff amended her complaint to add State Farm as a

defendant, asserting a claim for uninsured motorist coverage. State Farm filed

an answer and shortly thereafter moved for summary judgment.

      In support of its summary-judgment motion, State Farm pointed out that

plaintiff's actual claim was for UIM coverage because Ramirez's car had a basic

insurance policy and, therefore, under the governing law, a vehicle with a basic

policy was not considered to be uninsured.       See  N.J.S.A. 17:28-1.1(2)(d)

(providing that "uninsured motor vehicle[s]" shall not include automobiles

covered by a "basic" policy). State Farm then argued that its policy did not

provide UIM coverage to plaintiff because the policy limited UIM benefits to

J&Y LLC, the named insured, "resident relatives," and anyone who may seek

indemnity due to injury to a named insured or resident relative.

      The trial court heard arguments on the summary-judgment motion on

October 16, 2020. The court discerned no ambiguity in State Farm's policy and

agreed with State Farm's interpretation of its policy. Accordingly, that same

day, the court entered an order granting summary judgment to State Farm and

dismissing plaintiff's complaint with prejudice. On January 13, 2021, plaintiff


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dismissed the claims against Ramirez and Wilfredo. Although the notice of

dismissal states that it was "without prejudice," we treat it as a final order

because plaintiff has filed this appeal contending that it is an appeal from a final

order.

                                        II.

         On appeal, plaintiff makes two arguments: (1) the State Farm policy is

ambiguous and should be construed against State Farm; and (2) plaintiff had a

reasonable expectation of coverage based on the policy's declaration page.

         We also granted the New Jersey Association for Justice (the Association)

leave to appear as amicus curiae. The Association joins in plaintiff's arguments .

In addition, the Association argues that the Legislature did not intend to leave

someone like plaintiff without coverage.         In that regard, the Association

contends that the basic policy on Ramirez's vehicle should be treated as

providing no insurance coverage and plaintiff should be allowed to recover

under State Farm's uninsured coverage.

         We reject the arguments made by plaintiff and the Association. The State

Farm policy was clear and unambiguous and does not provide UIM coverage to

plaintiff. The Association's argument was not raised below and is inconsistent

with the plain language of  N.J.S.A. 17:28-1.1(2)(d).


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      We review summary-judgment decisions de novo and apply the same

standard as the trial court. Davis v. Brickman Landscaping, Ltd.,  219 N.J. 395,

405 (2014). Accordingly, we consider whether there are any material fact

disputes and, if not, whether the moving party is entitled to judgment as a matter

of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 528-

29 (1995). The issue on this appeal is purely a question of law involving the

interpretation of the State Farm automobile policy.             In making that

interpretation, we look to the plain meaning of the language of the policy.

Longobardi v. Chubb Ins. Co. of N.J.,  121 N.J. 530, 537 (1990).

      The State Farm policy provides UIM coverage to an "insured" for "bodily

injury or property damage aris[ing] out of the ownership, operation,

maintenance or use of an underinsured motor vehicle." UIM coverage, however,

is limited to "insured." Insured is defined as "you"—that is, the named insured,

"resident relatives," and any person entitled to recover damages due to injury to

the named insured or a resident relative. The named insured in the policy was

J&Y LLC. Plaintiff was not a named insured, nor was she an employee of J&Y

LLC. Consequently, under the plain and unambiguous language of the State

Farm policy, she has no UIM coverage.




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      Plaintiff contends that the State Farm policy is ambiguous because it

discusses uninsured and underinsured motorist coverage in the same section.

Plaintiff also contends that the reference to "resident relatives" is confusing in

the context of a commercial automobile insurance policy.            "A 'genuine

ambiguity' arises only 'where the phrasing of the policy is so confusing that the

average policyholder cannot make out the boundaries of coverage.'" Progressive

Cas. Ins. Co. v. Hurley,  166 N.J. 260, 274 (2001) (quoting Weedo v. Stone-E-

Brick, Inc.,  81 N.J. 233, 247 (1979)).

      While State Farm's policy is not a model of clarity, there is no ambiguity

concerning the limitations on the UIM coverage. Uninsured coverage and UIM

coverage are discussed in separate subsections within the policy. Indeed, the

policy clarifies that its definition of "uninsured motor vehicle" does not include

"an underinsured motor vehicle." Ramirez's automobile insurance policy was a

basic policy that excluded bodily injury liability coverage. The Legislature has

stated that an automobile covered by a "basic" insurance policy is not considered

to be an "uninsured motor vehicle."  N.J.S.A. 17:28-1.1(2)(d). Consequently,

there was no ambiguity in State Farm's policy concerning the distinction

between uninsured coverage and UIM coverage.




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      Moreover, the use of the term "resident relative" does not create an

ambiguity concerning plaintiff. Where the named insured is a corporation, the

corporation has no "resident relatives." Nevertheless, contrary to plaintiff's

assertions, that does not render the coverage "illusory." The governing statute

states that an individual employed by an insured corporation is deemed to be

provided with the maximum UIM coverage available under the policy. See

 N.J.S.A. 17:28-1.1(f). Therefore, employees are a statutorily prescribed class

of persons who must be covered by the policy.

      There may be "common sense reasons" to find coverage from a corporate

automobile insurance policy, such as when the person is "not merely a

permissive, occasional, or errand-specific user of the insured vehicle." Pinto v.

N.J. Mfrs. Ins. Co.,  365 N.J. Super. 378, 409 (App. Div. 2004) (quoting Macchi

v. Conn. Gen. Ins. Co.,  354 N.J. Super. 64, 75 (App. Div. 2002)), aff'd  183 N.J.
 405 (2005). Both the statute and common sense recognize that State Farm's

coverage would extend to some individuals, but not plaintiff.

      Plaintiff also contends that she had a reasonable expectation that she

would have UIM coverage based on the declaration page to the J&Y LLC policy.

Initially, we note that plaintiff does not contend that she ever saw or was aware

of the coverage provided for in the declaration policy. Just as importantly, " an


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insured's reasonable expectations only matter when the court finds the relevant

language ambiguous." Katchen v. Gov't Emps. Ins. Co.,  457 N.J. Super. 600,

607 (App. Div. 2019). Because the State Farm policy clearly states who is

insured and plaintiff is not within that definition, there is no ambiguity , and we

need not consider plaintiff's alleged expectations. Indeed, a reasonable person

in plaintiff's position could not expect coverage after reading the plain language

of the policy. Ibid.

      The Association makes an argument concerning the intent of the

Legislature in providing for uninsured and UIM coverage. In that regard, the

Association argues that a car insured by a basic policy lacking bodily injury

liability insurance should be considered an uninsured vehicle for coverage

purposes. We reject this argument for two reasons.

      First, this argument was not made before the trial court. We generally

decline to consider arguments that are not presented to the trial court. See State

v. Sims,  466 N.J. Super. 346, 361 (App. Div. 2021); Fuhrman v. Mailander,  466 N.J. Super. 572, 596 (App. Div. 2021). Moreover, as an amicus curiae, the

Association "must accept the case before the court as presented by the parties

and cannot raise issues not raised" before the trial court. Nicholas v. Mynster,




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 213 N.J. 463, 477 n.13 (2013) (quoting Bethlehem Twp. Bd. of Educ. v.

Bethlehem Twp. Educ. Ass'n,  91 N.J. 38, 48-49 (1982)).

      Second, even if we were to consider the Association's argument, it is

inconsistent with the plain language of the relevant statutory provisions. The

Association argues that the Legislature has tried to strike a balance between

reducing the cost of automobile insurance by providing basic coverage. Under

the Automobile Insurance Costs Reduction Act,  N.J.S.A. 39:6A-1.1 to -35, the

Legislature gave insureds the option to have various types of coverage under a

basic automobile insurance policy. See  N.J.S.A. 39:6A-3.1. A basic policy does

not, by default, provide personal liability insurance but rather makes personal

injury liability coverage optional. Citizens United Reciprocal Exch. v. Perez,

 223 N.J. 143, 153-54 (2015) (discussing the legislative purpose and clear

meaning of  N.J.S.A. 39:6A-3.1). The Legislature also stated that a vehicle

covered by a basic policy is not considered an uninsured vehicle.  N.J.S.A.

17:28-1.1(2)(d). The Association argues that the Legislature's attempt to make

insurance coverage more affordable should not cause a lawful occupant of a

vehicle, who has no automobile insurance of her own, to be denied coverage. In

other words, the Association argues that the provision was an unintended




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consequence of the creation of basic policies and that we should construe

plaintiff's claim as a claim for uninsured motorist coverage.

      Even assuming the Association's argument has some policy appeal, it is

an argument that needs to be made to the Legislature, not to a court. As the

Association admits, the construction it seeks is at odds with the plain language

of the existing statute. Accordingly, we decline to create an exception that is

foreclosed by the plain language of the statute.

      Affirmed.




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