NOT FOR PUBLICATION WITHOUT THE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-4167-18T3
ANA S. DERAS,
Plaintiff-Appellant,
v.
YASAMIN T. HAMWI,
MARISOL D. SANTOS,
GOVERNMENT EMPLOYEES
INSURANCE COMPANY,
Defendants,
and
ALLSTATE NEW JERSEY
PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant-Respondent.
__________________________
Argued January 23, 2020 – Decided February 11, 2020
Before Judges Fuentes, Mayer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-3073-17.
Timothy S. Sellinger argued the cause for appellant
(Sellinger & Sellinger, PA, attorneys; Timothy S.
Sellinger, 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
Plaintiff Ana S. Deras appeals from a May 9, 2019 order granting
summary judgment to defendant Allstate New Jersey Property & Casualty
Insurance Company (Allstate) and denying her request for underinsured motorist
(UIM) coverage under Allstate's policy. We affirm.
The relevant facts are as follows. Plaintiff suffered an injury while she
was a passenger in a car (host vehicle) involved in an accident with another car
(tortfeasor's vehicle). The host vehicle, insured by Government Employees
Insurance Company (GEICO), was owned and driven by plaintiff's friend. The
tortfeasor's vehicle failed to stop at a stop sign and struck the host vehicle. The
tortfeasor's vehicle was insured by Plymouth Rock Assurance (Plymouth).
Plaintiff sought UIM coverage from Allstate as a resident relative living
in the household of her deceased husband's family. The family's cars were
insured under a policy issued by Allstate (Policy).
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2
Allstate denied plaintiff's UIM claim based on an exclusion in the Policy,
prohibiting coverage for resident relatives who are not occupants of a car insured
under the Policy, and who are insured under another policy. Allstate relied on
this exclusion, known as Exclusion C, stating it would not "provide underinsured
motorists coverage to any resident relatives who are not occupants of the insured
auto described on the Policy Declarations, . . . and who are insured under another
auto policy."
Allstate suggested plaintiff provide notice to GEICO of her UIM claim
because "GEICO [was] the host carrier involved" in the accident. If GEICO
provided UIM coverage and plaintiff recovered under the GEICO policy,
Allstate reasoned plaintiff would be insured by GEICO and therefore ineligible
for UIM benefits from Allstate.
Plaintiff's counsel wrote to Allstate, confirming coverage by GEICO and
advising Plymouth made a settlement offer. Counsel also advised of plaintiff's
intent to proceed with her UIM claim against Allstate. Allstate repeated its
denial of UIM coverage for plaintiff's claim.
Plaintiff sued the drivers and their insurance companies. She also sued
Allstate. Plaintiff settled with GEICO and Plymouth. After settling with these
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3
insurance companies, plaintiff dismissed all claims except her UIM claim
against Allstate.
Allstate filed a motion for summary judgment, seeking dismissal of
plaintiff's complaint because she was not covered under the Policy. Plaintiff
filed a cross-motion for summary judgment, seeking UIM coverage for her
injuries under the Policy. The trial judge agreed with Allstate's denial of UIM
coverage, granted Allstate's motion, and denied plaintiff's cross-motion. In a
May 9, 2019 order, the judge dismissed plaintiff's complaint against Allstate.
On appeal, plaintiff claims the judge erred in granting summary judgment
and dismissing her complaint against Allstate because she was entitled to UIM
coverage under the Policy.
We apply the same standard as the trial court when reviewing a summary
judgment decision. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016).
Summary judgment must be granted if "the pleadings, depositions, answers to
interrogatories and admissions on file, together with 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." R. 4:46-2(c). A trial
court's determination regarding summary judgment is "not entitled to any special
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4
deference," and is subject to de novo review. Manalapan Realty, L.P. v. Twp.
Comm. of Manalpan, 140 N.J. 366, 378 (1995).
"[T]he interpretation of an insurance contract is a question of law which
[the appellate courts] decide independent of the trial court's conclusions."
Thompson v. James, 400 N.J. Super. 286, 291 (App. Div. 2008) (second
alteration in original) (quoting Simonetti v. Selective Ins. Co., 372 N.J. Super.
421, 428 (App. Div. 2004)).
We must determine whether the Policy accords UIM coverage for
plaintiff's injuries. Under the Policy, an "insured person" is defined as the
policyholder "and any resident relative or civil union partner under New Jersey
law." The Policy defines an "underinsured auto" as a vehicle "to which a
liability bond or policy applies at the time of accident but its limit for liability
is less than the limit of liability for this coverage."
There are seven exclusions for which Allstate "will not pay any damages
an insured person is legally entitled to recover." One of the exclusions is
Exclusion C, which states Allstate "will not provide [UIM] coverage to any
resident relatives who are not occupants of the insured auto described on the
Policy Declarations, including a replacement auto and an additional auto, and
A-4167-18T3
5
who are insured under another auto policy." Relying on Exclusion C, Allstate
denied plaintiff's UIM claim.
Here, the issue is whether plaintiff is eligible for UIM benefits under the
Policy as a resident relative subsequent to her receipt of benefits as an insured
under the GEICO policy. In determining whether a claimant shall receive UIM
benefits, courts employ a two-step approach. Di Ciurcio v. Liberty Mut. Ins.
Co., 299 N.J. Super. 426, 429 (App. Div. 1997). "First, the court must determine
whether a UIM claimant . . . qualifies for UIM benefits. "1 Ibid. "[T]he second
step requires a determination as to whether plaintiff is entitled to the benefits of
more than one policy in light of the relevant policies' terms." Ibid.
Plaintiff contends she is entitled to UIM coverage under Endorsement
ANA11-1 (Endorsement) of the Policy. The Endorsement provides the coverage
limits apply to
an insured person who is the named insured or resident
spouse of the named insured on this policy and any
resident relative who is not the named insured or spouse
of a named insured on another insurance policy, and
who is in, on, getting into or out of an insured auto or
non-owned auto . . . .
1
Neither party contests that plaintiff could qualify for UIM benefits because
the damages associated with her injuries were greater than the limits of the
insurance policies issued to the host vehicle and the tortfeasor's vehicle.
A-4167-18T3
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To trigger the Endorsement provision, a person must be covered under the
Policy.
Plaintiff argues the Endorsement, rather than Exclusion C, applied and she
was entitled to UIM coverage under the Policy. She also claims the
Endorsement and Exclusion C are "self-contradictory and ambiguous."
Our Supreme Court indicated "the critical factor in UIM coverage
litigation is the policy language." N.J. Mfrs. Ins. Co. v. Breen, 153 N.J. 424,
431 (1998). "UIM insurance is essentially a creature of contract law and should
be interpreted accordingly." Di Ciurcio, 299 N.J. Super. at 432.
In appellate review of an insurance policy, the court
construes the policy as any other contract to give effect
to the parties' intentions at the time the contract was
made. Where the terms of such a contract are clear,
they are to be accorded their plain and ordinary
meaning . . . . The parties to an insurance contract may
contract for any lawful coverage, and the insurer may
limit its liability and impose restrictions and conditions
upon its obligation under the contract not inconsistent
with public policy or statute.
[French v. N.J. Sch. Bd. Ass'n Ins. Grp., 149 N.J. 478,
492 (1997) (omission in original) (quoting Leader Nat'l
Ins. Co. v. Am. Hardware Ins. Grp., 545 N.W.2d 451,
455 (Neb. 1996)).]
See also Royal Ins. Co. v. Rutgers Cas. Ins. Co., 271 N.J. Super. 409, 419 (App.
Div. 1994) ("It is fundamental that in the absence of a statutory prohibition to
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the contrary, an insurance company has a right to impose whatever conditions it
desires prior to assuming its obligations . . . .").
Courts enforce the terms of an insurance contract as written, so long as
the language is clear. Thompson, 400 N.J. Super. at 291 (quoting Conduit &
Found. Corp. v. Hartford Cas. Ins. Co., 329 N.J. Super. 91, 99 (App. Div. 2000)).
"[W]here the terms of an insurance policy are ambiguous, '[appellate courts]
look for the probable intent of the parties and their reasonable expectations.'"
Ibid. Ambiguous terms should be construed liberally in favor of the insured.
Ibid.
Based on our review of the Policy, the Endorsement does not apply if there
is no UIM coverage. The plain language of Exclusion C states UIM coverage is
not available for any resident relatives who (1) "are not occupants of the insured
auto described on the Policy Declarations," and (2) "who are insured under
another auto policy." Absent a statutory prohibition, Allstate has the right to
relieve itself of liability, as in this situation, by imposing conditions prior to
assuming an obligation. See French, 149 N.J. at 492. We are satisfied the
Endorsement relied upon by plaintiff is inapplicable because there is no UIM
coverage as a result of plaintiff's being deemed an insured under GEICO's
policy.
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Here, the plain meaning of the Policy is not ambiguous. Exclusion C
eliminates coverage for plaintiff because she was insured under the GEICO
policy. Section IV of the GEICO policy, entitled "Uninsured/Underinsured
Motorists Coverage," provides "protection for you and your passengers." The
GEICO policy provided UIM coverage for an "insured" and defined the term
"insured" as "[a]ny other person while occupying an owned auto." Because
plaintiff was occupying the host vehicle, she was an "insured" under GEICO's
policy, triggering Exclusion C under Allstate's policy, and therefore not entitled
to UIM benefits from Allstate.
Plaintiff's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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ANA S. DERAS VS. YASAMIN T. HAMWI (L-3073-17, PASSAIC COUNTY AND STATEWIDE)
Combined Opinion