Coniglario v. Hanover Ins. Co.

• Court: New Jersey Superior Court
• Writing for the Court: LONGHI
• Citation: Coniglario v. Hanover Ins. Co., 559 A.2d 875, 233 N.J.Super. 627 (N.J. Super. 1989)
• Decision Date: 05 April 1989
• Parties: John CONIGLARIO, Plaintiff, v. HANOVER INSURANCE COMPANY, Defendant.

Page 627

233 N.J.Super. 627

559 A.2d 875

John CONIGLARIO, Plaintiff, v. HANOVER INSURANCE COMPANY, Defendant.

Superior Court of New Jersey, Law Division Middlesex County.

Decided April 5, 1989.

Evan L. Goldman, East Brunswick, for defendant, Hanover Ins. co.

David New, for plaintiff (Herbert New & David New, Clifton).

LONGHI, J.S.C.

This is an action by an insured against his automobile insurance carrier seeking to obtain money damages under both the uninsured (UM) and underinsured motorist coverage (UIM) provisions of his policy. The matter comes before the court on cross motions for partial summary judgment. The issue presented has not been decided in any reported case in New Jersey.

For the purpose of these motions the facts are undisputed. On October 18, 1985, plaintiff, John Coniglario, was operating his vehicle in the south bound lane of Route 35 in Sayreville, New Jersey. He was injured when Jeffrey Ercolino who was driving his vehicle in the north bound lane suddenly swerved into the south bound lane and the two vehicles collided. Ercolino has alleged that a burgundy colored vehicle cut him off and forced him into plaintiff's path. This vehicle fled the scene and is not otherwise identified.

At the time of the accident Ercolino was insured solely under an Allstate automobile liability policy of insurance which had a $25,000 limit. Plaintiff, Coniglario, was insured under a Hanover Insurance Company (Hanover) policy which provided liability limits of $100,000 and further provided coverage to the insured in the amount of $100,000 for bodily injury arising from accidents occurring with an uninsured or underinsured motorist. The UM and UIM coverage appears in a single endorsement for which a single premium is paid.

Ercolino has paid to the plaintiff the full $25,000 of coverage provided by his insurance policy. Coniglario now seeks to proceed against Hanover under both the UM and UIM coverage provisions of his policy. Hanover resists and asserts that since its policy provides UM and UIM protection as one single coverage by payment of one premium, the insured may pursue a claim under UM or UIM, but may not proceed under both provisions simultaneously.

The policy in question provides $100,000 liability coverage. Section C of the policy provides for UM coverage in the same amount. The declaration sheet and Part C state that UM coverage includes UIM coverage.

Under the heading INSURING AGREEMENT, the policy provides in relevant part:

We will pay damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" or "underinsured motor vehicle" where such coverage is indicated as applicable in the Schedule or Declarations ...

The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the "uninsured motor vehicle" or "underinsured motor vehicle."

The Insuring Agreement defines an uninsured and underinsured motor vehicle and unequivocally states " '[u]nderinsured motor vehicle' does not include an 'uninsured motor vehicle'." In addition, the Agreement specifies " '[u]ninsured motor vehicle' does not include an 'underinsured motor vehicle'." The language of the insurance policy is in compliance with the requirements of the statute N.J.S.A. 17:28-1.1.

In New Jersey all automobile insurance carriers must include in their policies of insurance a provision for bodily injury coverage for injuries an insured sustains by an uninsured motorist. N.J.S.A. 17:28-1.1a. See also N.J.S.A. 39:6A-14. Carriers are not required to include UIM coverage in their policies. However, since 1983 they are obligated to make available as an option to their insured the additional protection of UIM coverage up to the limits of the insured's liability policy, but not exceeding a maximum of $500,000 single limit. N.J.S.A. 17:28-1.1b. The pertinent portion of the statute states "... underinsured motorist coverage shall be provided as an option by an insurer to the named insured...." (emphasis added ). The statutory scheme is clear. An insurance carrier issuing automobile liability insurance policies in the State of New Jersey must include UM coverage in its policy and must offer UIM coverage as an additional protection against drivers of underinsured motor vehicles. See Longworth v. Ohio Casualty Co., 223 N.J.Super. 174, 538 A.2d 414 (App.Div.1988) for a history and import of UIM coverage. Once UIM coverage is provided in the insurance policy it is a protection afforded to the insured against injuries received from an operator of an underinsured vehicle in addition to any protection given as against uninsured motor vehicles.

The policy provided plaintiff by Hanover includes UM and UIM coverage. Plaintiff was involved in an accident with two motor vehicles. One vehicle qualifying as an uninsured (burgundy colored vehicle) and the other as an underinsured (Ercolino). Hanover is thus contractually bound to pay to its insured, Coniglario, up to the limits of both coverages provided in its policy, for any damages that may be recoverable against the uninsured and the underinsured motor vehicles.

Hanover argues that plaintiff cannot have...