STATE OF NEW JERSEY VS. DWAYNE WILSON (07-04-0720, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0457-15T1
DONG I. SHIN,
Plaintiff-Appellant,
v.
CNA1 and VALLEY FORGE INSURANCE
COMPANY,
Defendants-Respondents.
_______________________________
Argued January 24, 2017 — Decided March 10, 2017
Before Judges Reisner and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
2342-15.
John F. Golden argued the cause for appellant
(Albert Buzzetti & Associates, LLC, attorneys;
Mr. Golden, on the brief).
Edward M. Napierkowski argued the cause for
respondent (CNA Coverage Litigation Group,
attorneys; Charles G. Carluccio, III, on the
brief).
PER CURIAM
1
Plaintiff incorrectly named "CNA" as a defendant. CNA is a
service mark and not an insurer of the policy at issue.
In this declaratory judgment action, plaintiff Dong I. Shin
appeals from the August 21, 2015 orders granting summary judgment
to defendant Valley Forge Insurance Company (VFIC) and denying
plaintiff's motion for summary judgment. The motion judge
determined that plaintiff was not entitled to underinsured
motorist (UIM) coverage under the business policy issued by VFIC
for an accident that occurred while he was driving his wife's car
from church on a Sunday. Because the policy lists plaintiff
individually as the named insured, the UIM endorsement covers his
personal car, and some of the language in the UIM endorsement
indicates coverage, we agree with plaintiff and reverse both
orders.
The facts are not in dispute and the parties agree summary
judgment is appropriate. Plaintiff obtained commercial insurance
from VFIC for his wholesale florist business. He leases a 2007
Mitsubishi refrigerator truck that he uses to carry flowers for
his business. Plaintiff, rather than his business entity, is the
only named insured on a business automobile insurance policy issued
by VFIC for UIM coverage with a $1,000,000 limit. The Mitsubishi
truck is listed on the policy as a "covered 'auto'" and plaintiff's
personal cars, without description, are listed as covered in the
UIM endorsement.
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On August 5, 2012, plaintiff was driving his three children
and a friend home from church in a BMW X5 owned by his wife when
he was rear-ended by another vehicle. Plaintiff sustained injuries
and filed three insurance claims in connection with the accident.
He settled with the company that insured the vehicle that hit him,
for the full policy limit of $25,000. Plaintiff also asserted a
claim under his wife's personal insurance policy for the BMW that
he was driving the day of the accident. Plaintiff settled for
$25,000, which was the remaining balance of the $50,000 policy
after the previous $25,000 settlement was deducted.
Plaintiff filed a third claim under his business auto
insurance policy with VFIC. After taking plaintiff's deposition,
VFIC denied his claim on the basis that at the time of the accident,
plaintiff was driving his wife's BMW, a car not covered by the
policy. Plaintiff then filed a declaratory judgment action seeking
a determination that VFIC was required to provide him with UIM
coverage for the August 5 motor vehicle accident.
We review the trial court's grant of summary judgment de novo
and apply the same standard as the trial court. Cypress Point
Condo. Ass'n v. Adria Towers, LLC, 226 N.J. 403, 414 (2016).
Summary judgment must be granted if a review of the record shows
"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
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matter of law." R. 4:46-2(c). No special deference is afforded
to the legal determinations of the trial court when no issue of
fact exists. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co. of Pittsburg, 224 N.J. 189, 199 (2016).
Insurance policies are generally interpreted according to
their plain and ordinary meaning. Progressive Cas. Ins. Co. v.
Hurley, 166 N.J. 260, 273-74 (2001). However, when the policy is
ambiguous, "courts should interpret the contract in accordance
with the 'reasonable expectations' of the insured." Shotmeyer v.
N.J. Realty Title Ins. Co., 195 N.J. 72, 82 (2008). "Only where
there is a genuine ambiguity, that is, 'where the phrasing of the
policy is so confusing that the average policyholder cannot make
out the boundaries of the coverage,' should the reviewing court
read the policy in favor of the insured." Templo Fuente De Vida
Corp., supra, 224 N.J. at 200 (quoting Progressive Cas. Ins. Co.,
supra, 166 N.J. at 274); see also Zacarias v. Allstate Ins. Co.,
168 N.J. 590, 601 (2001) (policies will be read according to
insured's understanding when they contain overly technical text,
hidden pitfalls, obscure fine print or require strenuous study to
comprehend).
After oral argument, the motion court stated in its reasons
that "the BMW at the time of the accident was not a covered
vehicle, and was not a substitute for the covered vehicle when it
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was being used on a Sunday for personal family activities, to wit
driving from church, and therefore not engaged in the business as
a florist. See [Dickson] v. Selective Insurance Company, 363 N.J.
Super. 344 (App. Div. 2003) in support of this position." In
Dickson, we found no UIM coverage for an individual injured in his
private vehicle being driven for non-business reasons. We stated:
"Because he was neither a specifically named or covered driver,
nor a person listed as insured or covered in the 'drive other'
endorsement, he was not entitled to UIM protection under the
employer's policy for an accident occurring in a vehicle not owned
and insured by his employer, and having no relation to his
business." Dickson, supra, 363 N.J. Super. at 353.
The VFIC policy states:
Schedule of Coverages and Covered Autos
This policy provides only those coverages
where a charge is shown in the premium column
below. Each of these coverages will apply
only to those "autos" shown as covered
"autos". "Autos" are shown as covered "autos"
for a particular coverage by the entry of one
or more of the symbols from the Covered Auto
Section of the Business Auto Coverage Form
next to the name of the Coverage.
[Emphasis added.]
Unlike in Dickson, here plaintiff was the one named insured
on the policy and both the leased truck used for flower deliveries
as well as his privately "Owned 'Autos' Subject to A Compulsory
5 A-0457-15T1
Uninsured Motorist Law" were specifically listed as covered autos
on the UIM endorsement. The UIM endorsement begins with the
statement, "For a covered 'auto'. . . this endorsement modifies
insurance . . . ." The UIM endorsement, however, also contains
the following language:
B. Who Is An Insured
If the Named Insured is designated in the
Schedule or Declarations as:
1. An individual, then the following are
"insureds":
a. The Named Insured and any "family
members."
b. Anyone else "occupying" a covered "auto"
or a temporary substitute for a covered
"auto." The covered "auto" must be out of
service because if its breakdown, repair,
servicing, "loss" or destruction.
c. Anyone for damages he or she is entitled
to recover because of "bodily injury"
sustained by another "insured."
2. A partnership, limited liability company,
corporation or any other form of organization,
then the following are "insureds":
a. Anyone "occupying" a covered "auto"
or a temporary substitute for a covered
"auto." The covered "auto" must be out
of service because of its breakdown,
repair, servicing, "loss" or
destruction.
b. Anyone for damages he or she is
entitled to recover because of "bodily
injury" sustained by another "insured."
6 A-0457-15T1
c. The Named Insured for "property
damage" only.
This language requires that all persons occupy a "covered
'auto'" to be included in the UIM coverage except for the named
insured, when an individual, and his or her family members. VFIC
argues that because plaintiff's wife's car, which was involved in
the accident, was not a covered business or personal vehicle under
the UIM endorsement, UIM coverage is not available. In the
endorsement, however, the "Who Is An Insured" language establishes
coverage for the individually named insured, regardless of the
vehicle he or she is occupying at the time of the accident.
"As to insurance contracts specifically, 'the general rule
of construction [is] that if the controlling language of a policy
will support two meanings, one favorable to the insurer and the
other to the insured, the interpretation favoring coverage should
be applied.'" Cypress Point Condo. Ass'n, supra, 226 N.J. at 416
(quoting Mazzilli v. Accident & Cas. Ins. Co., 35 N.J. 1, 7
(1961)). Applying the unambiguous language in the portion of the
UIM endorsement concerning "Who Is An Insured," plaintiff is
entitled to coverage.
Reversed. We remand for the entry of an order denying
defendant's summary judgment motion and granting plaintiff's
summary judgment motion. We do not retain jurisdiction.
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