ANA S. DERAS VS. YASAMIN T. HAMWI (L-3073-17, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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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 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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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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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

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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.
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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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