ROBERT KATCHEN VS. GOVERNMENT EMPLOYEES INSURANCE COMPANY (L-2766-16, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5685-16T4
ROBERT KATCHEN,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
January 22, 2019
v. APPELLATE DIVISION
GOVERNMENT EMPLOYEES
INSURANCE COMPANY ("GEICO"),
Defendant-Appellant,
and
RIDER INSURANCE COMPANY
("RIDER"), and FARMERS INSURANCE
COMPANY OF FLEMINGTON
("FARMERS"),
Defendants-Respondents.
_____________________________________
Submitted November 27, 2018 – Decided January 22, 2019
Before Judges Fisher, Hoffman and Suter
(Judge Suter dissenting).
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-2766-16.
Rudolph & Kayal, PA, attorneys for appellant (Darren
C. Kayal, on the briefs).
Blume, Forte, Fried, Zerres & Molinari, PC, attorneys
for respondent Robert Katchen (David M. Fried, on
the brief).
Kriney & Vaughan, attorneys for respondent Rider
Insurance Company (William E. Vaughan, on the
brief).
Murray A. Klayman, PC, attorneys for respondent
Farmers Insurance Company of Flemington (Murray
A. Klayman, on the brief).
The opinion of the court was delivered by
HOFFMAN, J.A.D.
In this appeal, we consider whether an auto insurer may combine
uninsured (UM) and underinsured motorist (UIM) coverage in a single section
and include exclusions not listed on the policy's declaration page. We also
consider if an insurer may exclude UIM coverage for an accident involving a
vehicle owned by the insured but not covered under the subject policy.
Because we find the exclusion does not violate public policy or result in
ambiguity, we reverse.
I.
In December 2015, plaintiff suffered injuries in a motor vehicle accident
while operating his Harley Davidson motorcycle. Prior to settling with the
other driver for his policy limit of $25,000, plaintiff submitted a UIM claim
under three insurance policies he maintained: a motorcycle policy issued by
A-5685-16T4
2
defendant Rider Insurance Company (Rider), a commercial auto policy issued
by defendant Farmers Insurance Company of Flemington (Farmers), and a
personal auto policy issued by defendant Government Employees Insurance
Company (GEICO).1
In response, GEICO "disclaim[ed] coverage" based on an exclusion in
its policy. In its disclaimer letter, GEICO identified the relevant policy
language supporting its decision.
Section IV of GEICO's policy, which addresses both UM and UIM
coverages, provides, in relevant part:
LOSSES WE PAY
We will pay damages for bodily injury and property
damage caused by an accident which the insured is
legally entitled to recover from the owner or operator
of an uninsured motor vehicle or underinsured motor
vehicle arising out of the ownership, maintenance[,] or
use of that vehicle.
However, Section IV excludes coverage for "bodily injury sustained by an
insured while occupying a motor vehicle owned by an insured and not
described in the [d]eclarations and not covered by the Bodily Injury and
Property Damage liability coverages of this policy." Because the motorcycle,
1
The Rider policy provided $100,000 of UIM coverage, the Farmers policy
provided $1,000,000 in UIM coverage, and the GEICO policy provided UIM
coverage of $250,000.
A-5685-16T4
3
although owned by plaintiff, was not listed on the policy it issued, GEICO
determined it did not constitute an "owned auto," which the policy defined as a
"vehicle described in this policy for which a premium charge is shown for
these coverages." Based upon this determination, GEICO denied plaintiff's
claim.
Upon receiving GEICO's disclaimer, plaintiff filed a complaint against
all three defendant insurance carriers, seeking a declaratory judgment that t he
UIM coverage of all three carriers applied to the subject accident. GEICO
then filed a motion for a declaratory judgment, urging the court to find its
owned-motor-vehicle exclusion "valid, unambiguous, and enforceable." The
motion court denied GEICO's motion, viewing the language of GEICO's policy
as ambiguous, and holding that GEICO failed "to comply with the statutory
requirements [of] N.J.S.A. 17:28-1.1."
The parties thereafter came to an agreement that Rider and Farmers
would pay their pro-rata share of the $975,000 in UIM coverage owed to
plaintiff, and GEICO would take this appeal; if GEICO does not prevail, it
would pay its pro-rata share as well. Plaintiff, Rider, and Farmers
(respondents) all oppose GEICO's appeal and urge us to affirm.
A-5685-16T4
4
II.
We review the interpretation of a contract de novo. Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Sealed Air Corp.
v. Royal Indem. Co., 404 N.J. Super. 363, 375 (App. Div. 2008). When an
insurance contract's terms are clear and unambiguous, we interpret the policy
as written, using the "plain, ordinary meaning" of the words used. Zacarias v.
Allstate Ins. Co., 168 N.J. 590, 595 (2001). But where an ambiguity arises, we
interpret the policy in favor of the insured and against the insurer. President v.
Jenkins, 180 N.J. 550, 562-63 (2004).
An ambiguity exists when "the phrasing of the policy is so confusing
that the average policyholder cannot make out the boundaries of coverage."
Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979). We consider the entire
policy in determining if an ambiguity exists, but do not "engage in a strained
construction to support the imposition of liability." Longobardi v. Chubb Ins.
Co. of N.J., 121 N.J. 530, 537 (1990). Insurance policies are to be interpreted
narrowly, but the provisions within are presumed valid and effective if
"specific, plain, clear, prominent, and not contrary to public policy." Princeton
Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997) (citing Doto v. Russo, 140 N.J.
544, 559 (1995)).
A-5685-16T4
5
On appeal, GEICO argues the motion judge incorrectly found the subject
policy ambiguous and in violation of N.J.S.A. 17:28-1.1. GEICO asserts its
exclusion unambiguously bars UIM coverage for a loss sustained by plaintiff
while operating a motor vehicle he owned but did not insure under GEICO's
policy. We agree.
Respondents argue GEICO's policy, which addresses both UM and UIM
coverage in the same section, violates the statutory mandate that all motor
vehicle liability policies, except basic automobile insurance policies, shall
include coverage "for payment of all or part of the sums which the insured or
his legal representative shall be legally entitled to recover as damages from the
operator or owner of an uninsured motor vehicle . . . ." N.J.S.A. 17:28-1.1.
This violation of the statutory mandate regarding UM coverage, respondents
assert, renders the entire section ambiguous. See Rider Ins. Co. v. First
Trenton Cos., 354 N.J. Super. 491, 498 (App. Div. 2002); N.J.S.A. 17:28-1.1.
Respondents further argue the lack of a distinction between UM and UIM will
either cause a policyholder to believe that UM coverage is not available , or
will leave the policyholder confused as to when UM benefits apply.
Respondents' arguments lack merit. This case does not involve UM
coverage. Plaintiff did not present a claim for UM benefits, only UIM
A-5685-16T4
6
benefits. Whether the clause is ambiguous as to the UM benefits has no
bearing on whether the clause is ambiguous in regards to UIM benefits.
Additionally, we do not find the policy's definitions or lack of
definitions of certain terms render it ambiguous. The policy excludes UIM
coverage when an insured suffers injuries in a "motor vehicle" owned by the
insured but not covered by the policy. Plaintiff asserts the failure to define
"motor vehicle" results in an ambiguity as to the difference between "autos"
and "motor vehicles," despite the fact that the exclusion only uses the term
"motor vehicle." While GEICO could have included a definition of "mot or
vehicle" in its policy, if the words used in an exclusionary clause are clear and
unambiguous, "a court should not engage in a strained construction to support
the imposition of liability." Longobardi, 121 N.J. at 537.
The challenged exclusion explicitly states UIM coverage is not provided
for an insured's injuries sustained in a motor vehicle owned by the insured but
not covered by the policy. Any ordinary reasonable person understands a
motorcycle is a type of motor vehicle. Of note, the legal definition of motor
vehicle includes a motorcycle. See N.J.S.A. 39:1-1 (defining "motor vehicle"
to include "all vehicles propelled otherwise than by muscular power, excepting
such vehicles as run only upon rails or tracks and motorized bicycles").
A-5685-16T4
7
In addition, plaintiff would have specifically understood that his
motorcycle constituted a motor vehicle when he registered it with the State
since the registration application calls for "the name of the insurer of the
vehicle and the policy number." N.J.S.A. 39:3-4 (requiring owners to register
vehicles driven on public roadways, including motorcycles, and to obtain
separate insurance).
Respondents also argue the exclusion in the policy is inconsistent with
the intent and underlying policy of the UIM statute because the policy's
declaration page gave no warning of the exclusion and it improperly ties the
UIM coverage to the insured vehicle rather than the insured person.
Respondents further argue the insured's reasonable expectations cannot be
defeated "unless the declaration page itself so warns the insured," citing
Universal Underwriters Ins. Co. v. N.J. Mfrs. Ins. Co., 299 N.J. Super. 307,
319 (App. Div. 1997) (quoting Lehrhoff v. Aetna Cas. & Sur. Co., 271 N.J.
Super. 340, 347 (App. Div. 1994)). However, an insured's reasonable
expectations only matter when the court finds the relevant language
ambiguous. See Passaic Valley Sewerage Com'rs v. St. Paul Fire & Marine
Ins. Co., 206 N.J. 596, 608 (2011). Because we do not find the language
ambiguous, we need not consider plaintiff's claimed reasonable expectations.
Regardless, the facts and circumstances of this case do not support an
A-5685-16T4
8
argument that plaintiff had a reasonable expectation that the UIM coverage in
his auto policy would apply to a claim involving his motorcycle, a vehicle not
covered on his auto policy.
Respondents also misplace reliance on Universal. In that case, as here,
the insured maintained an auto policy covering his automobiles but not his
motorcycle, which he separately insured with Universal Underwriters
Insurance Company (Universal). Universal, 299 N.J. Super. at 311. The
insured sustained injuries in an accident while operating his motorcycle, and
Universal took the position that the UIM coverage of the insured's auto insurer,
New Jersey Manufacturers Insurance Company (NJM), should "participate on
a pro[-]rata basis in any potential award." Ibid. NJM rejected the claim, in
part because the liability section of its policy excluded liability coverage for
motorcycles, i.e., for motorized vehicles with fewer than four wheels. Id. at
311-12. However, unlike the case under review, in Universal, the UIM section
of NJM's policy contained no exclusion for injury to an insured while using an
owned vehicle not insured under the NJM policy. Id. at 313-15.
Under those circumstances, we rejected NJM's argument that either the
coverage provisions of N.J.S.A. 17:28-1.1(b), or the motorcycle exclusion
provision in the liability section of the policy, would operate to limit the
A-5685-16T4
9
insured's right to UIM coverage for the motorcycle accident. Id. at 318, 322-
23. We concluded:
[S]ince NJM's policy provides UIM coverage for
injuries sustained by an insured in an accident with an
underinsured motorist, regardless of whether the
vehicle the insured is occupying is insured under its
policy, and NJM by its policy terms agrees to share in
the loss if other insurance is applicable, NJM must
participate in the loss.
[Id. at 315.]
Because the case involved the application of a liability provision to UIM
coverage, in Universal we determined an ambiguity existed. Therefore, we
proceeded to examine the insured's reasonable expectations to determine if the
exclusion applied. We turned to the policy's declaration page, which made no
mention of the UIM exclusion. Id. at 319. We noted that "boilerplate
exclusions could not be used to defeat coverage implied from the express
terms of the declaration page," that the reasonable expectations created by the
declarations page are controlling, and "therefore, [they] cannot be defeated
unless the declaration page itself so warns the insured." Ibid. (quoting
Lehrhoff, 271 N.J. Super. at 347) (internal quotation marks omitted). Because
the declaration page did not mention any exclusion, we rejected NJM's
"technical argument that because its policy excludes from any liability
coverage an accident arising from the use of a motorcycle, the insurance
A-5685-16T4
10
statutes bar recovery under the underinsured motorist section of its policy."
Id. at 316.
Here, GEICO's declaration page does not list any exclusions. Thus,
respondents argue the subject UIM exclusion cannot be enforced. However,
we find Universal readily distinguishable. Universal concerned the application
of a liability provision to a UIM claim. Id. at 320. This case concerns the
application of a clearly-worded UIM provision to a UIM claim.
In Morrison v. American International Insurance Co. of America, 381
N.J. Super. 532, 540 (App. Div. 2005), we noted the well-established principal
that clear language in the policy should be interpreted as written. Id. at 538
(citing Nav-Its, Inc. v. Selective Ins. Co., 183 N.J. 110, 118 (2005); President
v. Jenkins, 180 N.J. 550, 562 (2004)). We further noted that our Supreme
Court has "refused to endorse a per se rule that an insurance contract is
ambiguous solely because its declaration[]s sheet, definitions section, and
exclusion provisions are separately presented." Id. at 540 (discussing Zacarias
v. Allstate Ins. Co., 330 N.J. Super. 231 (App. Div. 2000), aff'd, 168 N.J. 590(2001)). A rule that would require exclusions to appear on the declaration
page would result in even more fine print and "run the risk of making
insurance policies more difficult for the average insured to understand." Id. at
540-41 (citing Zacarias, 168 N.J. at 603). It would also eviscerate the rule that
A-5685-16T4
11
a clause should be read in the context of the entire policy. Id. at 541 (citing
Zacarias, 168 N.J. at 603).
Applying Zacarias and Morrison, the declaration page here does not
control. The failure to list the exclusion at issue on the declaration page does
not automatically render the contract ambiguous. Reading the GEICO policy
in its totality, we conclude the exclusion is clear and unambiguous. The fact
that the exclusion is not mentioned on the declaration sheet does not bar its
enforcement.
Respondents also argue the exclusion cannot be enforced because UIM
coverage must follow the driver – not the vehicle. In Universal, we held we
could not impose the liability provision on UIM coverage because to do so
would link UIM protection to the vehicle. Universal, 299 N.J. Super. at 322
("It is improper to incorporate a policy's liability exclusions, which are vehicle
oriented, into the [UIM] provisions because the two sections provide entirely
separate and distinct types of coverage."). Unlike the NJM policy in
Universal, the UIM exclusion at issue here appears in the section dealing with
UIM coverage.2
2
Of note, in Universal, Judge Landau's concurring opinion addressed the
prospect that a clearly worded UIM exclusion could lead to a different result:
(continued)
A-5685-16T4
12
Respondents further assert UIM insurance follows the insured and not
the vehicle. Aubrey v. Harleysville Ins. Cos., 140 N.J. 397, 399 (1995). But
GEICO's policy is not inconsistent with this mandate. GEICO's exclusion
states it will not cover losses occurring in an owned vehicle not insured under
its policy. This does not mean the policy will only cover losses that occur in a
covered vehicle. Had plaintiff suffered injuries while in a rental car or another
vehicle he did not own, the exclusion would not apply. Likewise, had plaintiff
been struck by a vehicle while walking down the street, the exclusion would
not apply. Thus, GEICO's policy does not unlawfully link coverage to an
insured's vehicle.
Our dissenting colleague finds Section IV of GEICO's policy ambiguous
because it "does not make clear there may be a difference between an insured
auto and a motor vehicle for purposes of UM or UIM coverage." In addition,
(continued)
It is interesting to note that, prior to endorsement, the
Universal policy contained a clause which expressly
limited its UIM coverage to accidents involving the
insured's motorcycle, i.e., to accidents for which
liability coverage also exists. Subject to compliance
with applicable law, a similar UIM limitation might
have been clearly and unambiguously expressed in the
NJM policy.
[Universal, 299 N.J. Super. at 324-25.]
A-5685-16T4
13
the dissent finds significant that "the Department of Banking and Insurance
Auto Insurance Buyers Guide does not reference any such nuanced type of
exclusion for UIM" for the circumstances presented here, i.e. "if the car is not
covered[,] then the insured is not covered." Because this case does not
concern UM coverage, and because the Buyer's Guide3 provides only "general
information," these arguments lack persuasion.
In Magnifico v. Rutgers Casualty Insurance Co., 153 N.J. 406, 415
(1998), our Supreme Court noted that its opinion in French v. New Jersey
School Board Association Insurance Group, 149 N.J. 478, 493-95 (1997),
"emphasized the significance of the clear language of applicable insurance
policies in resolving cases of UIM coverage," and observed that "[p]olicy
drafters have either anticipated or can anticipate most of the recurring
problems in this area." Significant to the matter under review, the Court
3
The last page of the Buyer's Guide includes the following cautionary note, in
bold:
This Buyer’s Guide is intended to provide
general information to help you make
coverage choices. It is not a substitute for
the policy language, which governs.
Additional information regarding
coverages or premiums is available from
the insurer or producer.
A-5685-16T4
14
quoted with approval the rationale articulated by Judge Herman D. Michels in
Royal Insurance Co. v. Rutgers Casualty Insurance Co.:
[W]e recognize that [UIM] coverage has been
characterized by some courts as being "personal to an
insured." . . . . However, this characterization of
[UIM] coverage cannot overcome the clear and
unambiguous language of a policy and render the
policy's "excess" clause void and unenforceable. It is
fundamental that in the absence of a statutory
prohibition to the contrary, an insurance company has
a right to impose whatever conditions it desires prior
to assuming its obligations, including providing
whether its policy shall be primary to or excess over
other collectible insurance, and how it will contribute
with such other insurance. Such qualifying provisions
should be construed in a common sense and logical
fashion in accordance with the language used.
[271 N.J. Super. 409, 419-20 (App. Div. 1994) (citing
Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43
(1960); Schneider v. New Amsterdam Cas. Co., 22
N.J. Super. 238, 243 (App. Div. 1952); Wilkinson &
Son, Inc. v. Providence Washington Ins. Co., 124 N.J.
Super. 466, 469 (1973)).]
In defense of the challenged UIM exclusion, GEICO asserts the
arguments advanced by the [r]espondents fail to
consider how insurance companies write policies.
Insurance is the business of risk evaluation.
Companies issue policies to their customers based on
the risks. There are numerous valuations to go into
the issuance of a policy. However, one of the most
significant in terms of the policy cost is the make,
model, and year of the vehicles insured.
A-5685-16T4
15
In this regard, we note that GEICO's declaration page does not list the
2006 Harley Davidson as a vehicle insured under the GEICO policy; instead,
the policy lists only one insured vehicle, the insured's 2007 Dodge Ram.
Given the fact that motorcycle operators and passengers sustain trauma in
accidents without the protection found in autos and trucks, such as airbags,
seatbelts and the vehicles themselves, it is axiomatic that motorcycle usage
presents a far greater risk of injury than other motor vehicles. 4
Reversed.
4
According to the National Highway Traffic Safety Administration, in 2016,
9.94 cars out of 100,000 ended up in fatal crashes, while the rate for
motorcycles was 60.9 per 100,000 registered motorcycles; per vehicle mile
traveled, motorcycles have a fatality rate twenty-six times greater than
passenger cars. NAT'L HIGHWAY TRAFFIC & SAFETY ADMIN.'S NAT'L CTR. FOR
STATISTICS & ANALYSIS , MOTORCYCLES: 2016 DATA (UPDATED, TRAFFIC
SAFETY FACTS, REPORT NO. DOT HS 812 492) (2018).
A-5685-16T4
16
_________________________________
SUTER, J.A.D., dissenting.
I most respectfully dissent. Section IV of the GEICO policy concerns
uninsured motorist (UM) and underinsured motorist (UIM) coverages. It
provides coverage to the policy insured as follows:
We will pay damages for bodily injury and property
damage caused by an accident which the Insured is
legally entitled to recover from the owner or operator
of an uninsured motor vehicle or underinsured motor
vehicle arising out of the ownership, maintenance or
use of that vehicle.
Section IV then includes fourteen exclusions that limit the scope of the
coverage. Exclusion five declares that Section IV does not apply
[t]o bodily injury sustained by an insured while
occupying a motor vehicle owned by an insured and
not described in the Declarations and not covered by
the Bodily Injury and Property Damage liability
coverages of this policy.
There is nothing "clear or unambiguous" here as the majority asserts.
The Policy Index lists Section IV as pertaining to UM coverage, making no
mention of UIM. It is only when Section IV is reviewed that it becomes clear
the section addresses both UM and UIM. Section IV alternates between use of
the term "insured," which is defined, and "you," which is defined in another
section of the policy. It defines the term "insured auto" and then uses the term
"motor vehicle" in the exclusions, which is not defined in the policy. This
section does not make clear there may be a difference between an insured auto
and a motor vehicle for purposes of UM or UIM coverage. The Declarations
page does not reference that there are any exclusions from the UM or UIM
coverages, requiring the policyholder to read through the policy, discover the
exclusions and then interpret them without the aid of fully defined terms.
The Supreme Court has said "[g]enerally speaking, courts construe
insurance policies consistent with the objectively reasonable expectations of
the insured." Aubrey v. Harleysville Ins. Cos., 140 N.J. 397, 404 (1995). We
have said that ambiguities "found in the policy should be construed against the
insurer and 'exclusionary clauses should be strictly construed.'" Universal
Underwriters Ins. Co. v. New Jersey Mfrs. Ins. Co., 299 N.J. Super. 307, 312
(App. Div. 1997). My colleagues agree that when a policy is ambiguous, an
insured's reasonable expectation then is considered. Passaic Valley Sewerage
Comm'rs v. St. Paul Fire & Marine Ins. Co., 206 N.J. 596, 608 (2011).
The reasonable expectation by an insured before this decision was that
UIM coverage followed the insured and not the vehicle. Aubrey, 140 N.J. at403 (citing Fernandez v. Selected Risks Ins. Co., 82 N.J. 236, 241 (1980)).
This is because UIM is:
first-party coverage insuring the policyholder and
others who have the status as "insureds" under the
policy against the possibility that they will be injured
or suffer property loss in an accident caused by a
2 A-5685-16T4
motor vehicle when the liability insurance covering
that other vehicle is insufficient to pay their full
losses.
[Universal, 299 N.J. Super. at 320 (quoting Craig &
Pomeroy, N.J. Auto Ins. Law § 26:1 (1997)).]
The majority opinion agrees with that proposition and then proceeds to
undercut it by agreeing with GEICO that if the vehicle is not listed in the
Declarations page, there is no UIM coverage for the owner. According to the
majority, therefore, if the car is not covered then the insured is not covered.
The Department of Banking and Insurance Auto Insurance Buyers Guide does
not reference any such nuanced type of exclusion for UIM.
Underinsured Motorist Coverage pays you if you are
in an auto accident caused by a driver who is insured,
but who has less coverage than your underinsured
motorist coverage. Damages greater than the limits of
the other driver's policy are covered by your policy up
to the difference between the limits of your
underinsured motorist coverage and the other driver's
policy limit.
[New Jersey Auto Insurance Buyer's Guide 8
https://www.state.nj.us/dobi/division_consumers/pdf/a
utoguide02.pdf (last visited December 21, 2018)
(emphasis added).]
The Declarations page does not hint at an exclusion either.
The majority attempts to provide examples to prove their point that UIM
coverage will continue, after this opinion, to follow the person and not the
vehicle. For instance, the majority implies coverage will still apply where the
3 A-5685-16T4
"plaintiff suffered injuries while in a rental car or another vehicle he did not
own" or if plaintiff were "struck by a vehicle while walking down the street."
We are not tasked with interpreting this policy for factual situations that are
not before us, but the exclusion in paragraph six of Section IV should be
considered before assuming that coverage will continue to follow the insured.
Exclusion six provides that coverage does not apply "[t]o bodily injury
sustained by an insured while occupying a motor vehicle not owned by, and
furnished for the regular use of the insured when involved in an accident with
an underinsured motor vehicle." This seems to exclude a plaintiff from UIM
coverage in a vehicle he does not own.
The majority opinion provides that "whether the clause is ambiguous as
to the UM benefits has no bearing on whether the clause is ambiguous in
regard to UIM benefits." This appears to concede that the policy exclusion in
question would be construed as ambiguous if we were dealing with UM
coverage, but is "clear and unambiguous" for UIM coverage. It is error to
conclude that the very same sentence in an exclusion is clear for one type of
coverage and not for another. Respectfully, it is the same policy, the same
sentence, and the same ambiguities.
This is not a question of which UIM policy is primary or excess as
referenced by the majority in its citation to Royal Insurance Co. v. Rutgers
4 A-5685-16T4
Cas. Ins. Co., 271 N.J. Super. 409, 419-20 (App. Div. 1994); it is a matter of
coverage. The question is whether the insured would understand from the
Declarations page and policy provisions that UIM coverage was limited. As
the Court stated in Kievit v. Loyal Protective Life Ins. Co.,
[w]hen members of the public purchase policies of
insurance they are entitled to the broad measure of
protection necessary to fulfill their reasonable
expectations. They should not be subjected to
technical encumbrances or to hidden pitfalls and their
policies should be construed liberally in their favor to
the end that coverage is afforded "to the full extent
that any fair interpretation will allow."
[34 N.J. 475, 482 (1961) (citations omitted).]
I would affirm the trial court's order.
5 A-5685-16T4