CHRISTOPHER RICCIARDI v. ALLSTATE INSURANCE CO

NOT FOR PUBLICATION WITHOUT THE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-4045-19

CHRISTOPHER RICCIARDI,

          Plaintiff-Appellant,

v.

ALLSTATE INSURANCE CO.,

     Defendant-Respondent.
__________________________

                   Argued September 15, 2021 – Decided October 27, 2021

                   Before Judges Messano, Accurso and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Docket No. L-1779-18.

                   Michael A. Rabasca argued the cause for appellant (The
                   Epstein Law Firm, PA, attorneys; Michael J. Epstein,
                   of counsel and on the briefs; Michael A. Rabasca, on
                   the briefs).

                   Joseph B. O'Toole, Jr. argued the cause for respondent
                   (O'Toole, Couch & Della Rovere, LLC, attorneys;
                   Joseph B. O'Toole, Jr., on the brief).

PER CURIAM
      In this automobile insurance coverage dispute, plaintiff Christopher

Ricciardi appeals from June 30, 2020 Law Division orders, dismissing his

complaint against defendant Allstate Insurance Company on the parties' cross -

motions for summary judgment. On appeal, plaintiff reprises his argument that

he was a "resident relative" as defined in his brother's Allstate policy, entitli ng

plaintiff to underinsured motorist (UIM) coverage.          He further maintains

Allstate should be precluded, under equitable principles, from belatedly denying

coverage on the ground that plaintiff's personal vehicle was insured under

another automobile policy. We reject these contentions and affirm.

      We summarize the relevant facts from the record before the motion judge

in a light most favorable to the non-moving party. Ben Elazar v. Macrietta

Cleaners, Inc.,  230 N.J. 123, 135 (2017).

      Plaintiff was injured in a January 15, 2017 collision with an underinsured

motorist while driving his brother's pickup truck during their move to Florida.

Allstate insured the pickup truck; the policy listed plaintiff's brother as the only

named insured. Claiming his injuries exceeded the $50,000 bodily injury policy

limit tendered by the tortfeasor's insurance carrier, plaintiff sought coverage as

a "resident relative" under his brother's Allstate policy, which provided up to

$250,000 UIM coverage.          Plaintiff's personal vehicle was insured by


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Government Employees Insurance Company (GEICO), which limited UIM

coverage for bodily injury claims to $25,000.

       In response to plaintiff's claim for UIM coverage and Longworth1

approval to resolve his claims against the tortfeasor, Allstate denied coverage in

its May 26, 2017 correspondence to plaintiff's Florida attorney. Allstate asserted

plaintiff "was a non-resident operator of [its] insured's vehicle" and, as such, the

policy's "UIM limits would 'step down' to the mandatory minimum specified by

the laws of New Jersey." See  N.J.S.A. 17:28-1.1(a)(1) (setting the mandatory

minimum amount of bodily injury coverage at $15,000). Notably, three months

earlier on January 16, 2017, Allstate had denied plaintiff's claim for personal

injury protection (PIP) benefits, asserting plaintiff's GEICO policy was

"PRIMARY." See  N.J.S.A. 39:6A-4.2 (authorizing PIP benefits "for the named

insured and any resident relative in the named insured's household who is not a

named insured under an automobile insurance policy of his own").

      At the time of the accident, the brothers were en route to Delray Beach,

Florida, to move into a new apartment. Their lease term commenced that same

day. For three months prior to the move, the brothers had lived together in their



1
  Longworth v. Van Houten,  223 N.J. Super. 174 (App. Div. 1988) (defining
the obligations of insureds and insurers in the UIM context).
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parents' Scotch Plains, New Jersey home. Before moving into his parents' home,

plaintiff had resided for several years in Brooklyn, New York, with his

girlfriend. Plaintiff's driver's license and GEICO policy were issued in New

York State.

      Plaintiff filed his complaint against Allstate in May 2018, seeking a

declaration that he qualified as a "resident relative" of his brother's household

and was entitled to UIM benefits under the Allstate policy. Although Allstate's

ensuing answer did not expressly deny coverage on the ground that plaintiff was

the named insured on his GEICO policy, Allstate generally asserted separate

defenses under the "no-fault" statute,  N.J.S.A. 39:6A-1 to -35, and the UIM

statute,  N.J.S.A. 17:28-1.1 to -1.9.

      The discovery period was protracted by motion practice, initially

stemming from Allstate's failure to answer plaintiff's interrogatories and request

for documents. Ultimately, the judge granted plaintiff's unopposed motion to

strike Allstate's answer and defenses based on the carrier's failure to respond to

plaintiff's request for a single admission. The August 5, 2019 memorializing

order provided that Allstate "conclusively . . . admitted . . . its sole stated reason

for denying UIM benefits to plaintiff is that plaintiff was not a resident relative

of [his brother] on the date and at the time of the subject accident."


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      At the close of discovery, plaintiff moved for partial summary judgment

on the coverage issue. Allstate opposed plaintiff's motion and cross-moved to

vacate the August 5, 2019 order and reinstate its answer and defenses. Allstate

contended plaintiff lacked any intention to continue his residence at the Scotch

Plains home, which was the address associated with the policy, and there was

no evidence in the record demonstrating the policy was amended to include

plaintiff as a new driver in the household.

      Following argument, the judge issued an oral decision, denying plaintiff's

motion without prejudice and extending the discovery end date. The judge

permitted additional discovery, which was limited to whether plaintiff qualified

as a member of his brother's household. Accordingly, the judge vacated the

August 5, 2019 order, and reinstated Allstate's answer and defenses.

      Thereafter, plaintiff renewed his motion for partial summary judgment on

the same grounds. Allstate opposed plaintiff's motion and cross-moved for

summary judgment, arguing that even if plaintiff were deemed a resident relative

under Allstate's UIM provision, because plaintiff was the named insured on his

own automobile insurance policy, he was consequently not entitled to Allstate's

full UIM coverage.




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        Allstate summarized its limits of liability provision of UIM coverage as

follows2:

              (1) $250,000 is available to the named insured, resident
              spouse or civil partner of named insured and resident
              relatives[,] who [is] in an insured auto or non-owned
              vehicle that [is] not the named insured, spouse, or civil
              union partner of a named insured on another policy.

              (2) $15,000 is available to named insured, civil union
              partner or resident spouse of the named insured or
              resident relative[,] who [is] in a motor vehicle owned
              by that person or a resident relative or is available for
              regular use by that person or resident relative which is
              not an insured vehicle on the policy and is insured for
              similar coverage under another policy.

              (3) $15,000 for all other insured persons.

              [(Emphasis added).]

Because plaintiff was the named insured on his own GEICO policy, Allstate

primarily contended his claim fell within category three.

        Acknowledging it did not assert this coverage defense in its May 26, 2017

denial letter – and that its motion "could . . . have been filed sooner" – Allstate

nonetheless argued the issue was raised during litigation.        As one notable

example, Allstate referenced its interrogatory answer to plaintiff's request for

facts supporting its affirmative defenses. That answer specifically cited the UIM


2
    Plaintiff does not dispute Allstate's summary of the provision.
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statute and asserted plaintiff had his own automobile insurance policy issued by

GEICO. And when deposed, plaintiff acknowledged he was insured under the

GEICO policy. Because it was definitive in its denial of plaintiff's UIM claim

from "the very beginning," Allstate argued plaintiff did not establish detrimental

reliance that would otherwise entitle him to equitable relief from "a valid

limitation within the insurance contract."

      Following oral argument, the motion judge reserved decision and

thereafter issued a cogent written statement of reasons that accompanied the

June 9, 2020 orders. The judge squarely addressed the issues raised in view of

the governing law.

      Initially, the motion judge determined issues of fact precluded judgment

as a matter of law as to whether plaintiff intended to establish residency while

residing with his brother at the Scotch Plains home. The judge elaborated:

            Plaintiff testified at his deposition that his residence in
            New Jersey was temporary. Furthermore, he has a New
            York license and uses a Staten Island address for vital
            documents such as his insurance and driver's license
            information even though he has been living in Florida
            for more than three years. Also, [p]laintiff worked at
            the Country Club Services in Millburn, New Jersey
            part-time for six weeks. Working in New Jersey for
            such a short time, along with having a New York
            license, a New York address listed on his insurance
            policy and testifying that living in New Jersey was
            temporary could lead a reasonable juror to find that

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            [plaintiff] did not intend to establish residency in New
            Jersey at the time before the accident.

The motion judge also found "at issue . . . whether [plaintiff's] brother gave

proper notice to Allstate about the fact that [p]laintiff was now living with him

and was properly defined as a resident insured."

      Turning to Allstate's motion, the judge focused on the "clear and

unambiguous" terms of the policy's UIM step-down provision, which resulted in

the mandatory minimum limit applying here. Because that limit did not exceed

the tortfeasor's $50,000 bodily injury policy limit, the judge concluded Allstate's

UIM provision was not triggered, thereby dismissing plaintiff's UIM claim.

      In reaching his decision, the motion judge rejected plaintiff's argument

that the equitable remedies of laches, estoppel, or waiver applied here where

Allstate's delayed defense "ambush[ed]" plaintiff. Citing the record evidence to

the contrary, the judge found no "suggesti[on] that [p]laintiff changed his

position in any manner in reaction to Allstate's purported failure to properly rely

upon the step-down provision."

      We review the trial court's decision on summary judgment de novo,

applying the same legal standard as the trial court. RSI Bank v. Providence Mut.

Fire Ins. Co.,  234 N.J. 459, 472 (2018). We must therefore determine "whether

the evidence presents a sufficient disagreement to require submission to a jury

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or whether it is so one-sided that one party must prevail as a matter of law."

Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 536 (1995) (citation

omitted).

      Summary judgment must be granted "if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a matter of law."

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,  224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). If there is no genuine issue of

material fact, we must then "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) (citation omitted).

      Because the interpretation of an insurance contract is a question of law,

our review is de novo. Polarome Int'l, Inc. v. Greenwich Ins. Co.,  404 N.J.

Super. 241, 260 (App. Div. 2008); see also Nicholas v. Mynster,  213 N.J. 463,

478 (2013) (recognizing appellate courts review summary judgment motions de

novo and accord no deference to the judge's conclusions on issues of law).

"[F]or mixed questions of law and fact, [an appellate court] give[s] deference

. . . to the supported factual findings of the trial court, but review[s] de novo the


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lower court's application of any legal rules to such factual findings." State v.

Pierre,  223 N.J. 560, 577 (2015) (citations omitted).

      Courts "give special scrutiny to insurance contracts because of the stark

imbalance between insurance companies and insureds." Zacarias v. Allstate Ins.

Co.,  168 N.J. 590, 594 (2001).      Courts should interpret insurance policies

according to "their plain, ordinary meaning." Id. at 595. Insurance policies are

"contracts of adhesion" and should be interpreted as such. Ibid. Accordingly,

exclusionary provisions "must be construed narrowly; the burden is on the

insurer to bring the case within the exclusion." Homesite Ins. Co. v. Hindman,

 413 N.J. Super. 41, 46 (App. Div. 2010).           Exclusionary provisions are

nonetheless "presumptively valid and will be given effect if specific, plain,

clear, prominent, and not contrary to public policy." Ibid. Accordingly, if there

is no ambiguity in the language, courts should not write a better policy than the

one purchased. Ibid.

      On appeal, plaintiff argues the motion judge's decision granting Allstate's

motion "ignored" Allstate's admission under Rule 4:22-1; failed to apply the

equitable principles to Allstate's untimely defense; and based its decision on

"incorrect facts and assumptions." Plaintiff further asserts the judge erroneously

denied his motion by failing to apply basic contract principles, and too narrowly


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defining "household," "resident," and "residence," in a manner not supported by

the policy language. Plaintiff also argues there were no issues of material fact

that precluded judgment as a matter of law on the coverage issue.

      We have considered de novo plaintiff's contentions in view of the

applicable law, and conclude they lack sufficient merit to warrant extended

discussion in our written opinion. R. 2:11-3(e)(1)(E). We affirm substantially

for the reasons expressed by the motion judge in his well-reasoned decision,

adding the following remarks.

      As a preliminary matter, even assuming plaintiff qualified as a resident

relative under the Allstate policy, he was not entitled to UIM coverage because

he was insured under his own automobile policy. Nor are we convinced Allstate

was foreclosed from raising in its cross-motion for summary judgment that the

policy's UIM step-down provision precluded coverage. Notably, plaintiff does

not challenge the judge's finding that the terms of the UIM step-down provision

were "clear and unambiguous." Nor does he assert his GEICO policy was not

in effect at the time of the accident.

      Rather, plaintiff's contentions focus on the inequities of Allstate's trial

position, i.e., litigating the residency defense for two years, then raising – at the

close of discovery – the uncontroverted defense that plaintiff's GEICO coverage


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precluded full UIM recovery under the step-down provision of Allstate's policy.

While we agree with Allstate that its motion "could . . . have been filed sooner,"

we likewise concur with the motion judge's observation that the "G[EICO]

policy was always in the mix."

      Indeed, as early as the day after the accident, Allstate notified plaintiff it

denied his PIP claim because plaintiff was covered by his GEICO policy. We

acknowledge plaintiff's argument that the judge erroneously found Allstate

disclaimed "UIM" coverage in its January 16, 2017 letter. But that error does

not affect the outcome here, where the judge correctly determined Allstate's May

26, 2017 correspondence "specifically disclaimed coverage [under] the step-

down provision[.]" Moreover, Allstate generally pled an affirmative defense

under the UIM statute and specifically asserted plaintiff was insured by GEICO

in its answer to plaintiff's interrogatory regarding the factual basis for its

affirmative defenses.

      Little need be said regarding plaintiff's contention that Allstate's

"conclusive admission" precluded it from asserting plaintiff's UIM claims were

barred under the policy's step-down provision. Rule 4:22-1, governing requests

for admissions, allows a party to seek "the truth of any matters of fact within the




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scope of [the discovery rule]." Failure to answer the request within thirty days

of service, results in an admission of the matter. Ibid.

       "The purpose of a request for admissions is to establish matters to be true

for purposes of trial when there is not a real controversy concerning them[,] yet

their proof may be difficult or expensive." Essex Bank v. Capital Res. Corp.,

 179 N.J. Super. 523, 532 (App. Div. 1981). "A request for admissions . . . thus

serve[s] the relatively limited purpose of eliminating the necessity of proving

facts which are or should be uncontroverted." Ibid.; see also Torres v. Pabon,

 225 N.J. 167, 185 (2016). "[A] request for admissions should not be used in an

attempt to establish the ultimate fact in issue." Essex Bank,  179 N.J. Super. at
 533.

       In the present matter, the August 5, 2019 order, which deemed the

plaintiff's request admitted, was later vacated in the same December 23, 2019

order that restored Allstate's answer and defenses. Moreover, the request for

admission did not seek to establish uncontroverted facts, but rather went to the

very core of Allstate's defense under the UIM provision of the policy.

       Affirmed.




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