Marotta v. New Jersey Auto. Full Ins. Underwriting Ass'n By and Through Liberty Mut. Ins. Co.

• Decision Date: 31 March 1995
• Parties: Concetta MAROTTA, Plaintiff, v. NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOC. By and Through its servicing carrier, LIBERTY MUTUAL INS. CO., Defendants. NEW JERSEY AUTOMOBILE FULL INS. UNDERWRITING ASSOC. By its servicing carrier LIBERTY MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. Anthony J. MAROTTA, Concetta Marotta, Jack Berk, Eileen Berk, International Insurance Company (a/k/a Crum & Forster Personal Insurance) and the American Insurance Company (a/k/a Fireman's Fund Insurance Co.), Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 525

280 N.J.Super. 525

656 A.2d 20

Concetta MAROTTA, Plaintiff, v. NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOC. By and Through its servicing carrier, LIBERTY MUTUAL

INS. CO., Defendants.

NEW JERSEY AUTOMOBILE FULL INS. UNDERWRITING ASSOC. By its

servicing carrier LIBERTY MUTUAL INSURANCE

COMPANY, Plaintiff-Appellant, v. Anthony J. MAROTTA, Concetta Marotta, Jack Berk, Eileen

Berk, International Insurance Company (a/k/a Crum & Forster

Personal Insurance) and the American Insurance Company

(a/k/a Fireman's Fund Insurance Co.), Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Submitted Feb. 8, 1995.

Decided March 31, 1995.

Slimm & Goldberg, Westmont, for appellant New Jersey Automobile Full Ins. Underwriting Ass'n (Laurie Harrold Rizzo, of counsel and on the brief).

Law Offices of Stanley P. Stahl, Voorhees, for respondent Intern. Ins. Co. (Beth A. Wright and Sharon K. Galpern, on the brief).

McDonald, Nathan & Hendershot, New Brunswick, for respondent The American Ins. Co. (Nicholas J. Hendershot, on the brief).

Before Judges SKILLMAN, WALLACE and KLEINER.

The opinion of the court was delivered by

KLEINER, J.A.D.

Plaintiff New Jersey Automobile Full Insurance Underwriting Association ("NJAFIUA") by its servicing carrier, Liberty Mutual Insurance Company, appeals from an order denying its motion for summary judgment in a declaratory judgment action seeking a determination of insurance coverage.

On October 5, 1987, Anthony Marotta and Concetta Marotta were residents of Philadelphia. Anthony owned a condominium in Wildwood, and the Marottas used that condominium regularly during the summer and occasionally on non-summer weekends. On that date, Anthony, representing himself as a New Jersey resident, applied for a $500,000 single limit automobile liability insurance policy which was issued by plaintiff. The policy was renewed on October 5, 1988.

On October 10, 1988, Anthony struck a motor vehicle in Philadelphia operated by defendant Jack Berk, in which Eileen Berk was a passenger. The Berk vehicle was insured by defendant International Insurance Company ("International"). That vehicle was also insured under a business policy by American Insurance Company ("American"). Berk's insurance policies both provided uninsured/underinsured motor coverage with policy coverage limits less than the liability insurance coverage limits insuring the Marotta vehicle.

In June 1989, the Berks filed a complaint in the Court of Common Pleas in Philadelphia for compensatory damages and named Anthony Marotta as defendant. An answer was filed by the NJAFIUA through its servicing carrier. That suit is still pending.

Thereafter, based upon an investigation, plaintiff concluded that Marotta had misrepresented facts which it contended rendered Marotta ineligible for a policy of liability insurance issued by the NJAFIUA. N.J.S.A. 17:30E-3m, provides in part:

"Qualified applicant" means a person domiciled in New Jersey who is an owner of an automobile registered, or to be registered within 60 days of application, and principally garaged in this State, who has been refused coverage in the voluntary market, and who cannot be or is not placed in the voluntary market through the procedures established pursuant to subsection a. of section 26 of P.L.1983, c. 65 (C.17:30E-14).

More specifically, plaintiff contended that Marotta's motor vehicle was not registered or principally garaged in New Jersey, and that Marotta's domicile was in Pennsylvania.

Plaintiff then filed a complaint for declaratory judgment seeking to avoid all claims against the policy of liability insurance it had issued Marotta, or alternatively, to limit the extent of insurance coverage to the statutory mandatory compulsory insurance of $15,000 per person, $30,000 per accident and $5,000 property damages prescribed in N.J.S.A. 39:6A-3 and N.J.S.A. 39:6B-1. ¹

After discovery was complete, plaintiff filed a motion for summary judgment, and defendants International and American each filed separate cross-motions for summary judgment seeking an order declaring that plaintiff's entire policy limit of $500,000 must be provided to indemnify Marotta against the Berks' pending claims. ² After oral argument, the motion judge denied plaintiff's motion and granted summary judgment on each defendant's cross-motion. We reverse and conclude that plaintiff must indemnify Marotta only to the extent of the compulsory insurance proscribed in N.J.S.A. 39:6A-3 and N.J.S.A. 39:6B-1.

The responsibility of an insurance carrier for claims arising prior to a retroactive revocation of a liability insurance policy was most recently discussed in Dillard v. Hertz Claim Management, 277 N.J.Super. 448, 650 A.2d 1 (App.Div.1994). In Dillard, the policy of a host driver was canceled retroactively for nonpayment of the initial insurance premium. Id. at 449, 650 A.2d 1. The date of revocation was subsequent to an automobile accident in which the host driver's passenger was injured. Ibid. Dillard relied upon our decision in Fisher v. New Jersey Automobile Full Insurance Underwriting Ass'n, 224 N.J.Super. 552, 557-58, 540 A.2d 1344 (App.Div.1988), where a liability policy was retroactively void due to the lack of qualification of the original named insured. Dillard, supra, 277 N.J.Super. at 453, 650 A.2d 1. Despite the retroactive revocation, an injured passenger was entitled to recover personal injury protection benefits.

Our decision in Dillard, supra, did not require a determination of the extent of insurance coverage available to satisfy the claim of the injured passenger. That is the precise question posed by this appeal.

N.J.S.A. 39:6-48 provides:

No motor vehicle liability policy shall be issued or delivered in this State, as proof of financial responsibility, unless such policy discloses the name, address and business of the insured, the coverage afforded by the policy, the premium charged therefor, the policy period, the limit of liability and the agreement that the insurance thereunder is provided in accordance with the coverage defined in sections twenty-four and twenty-five of this act 1 and in this section and is subject to all of the provisions of this act.

The motor vehicle liability policy shall be subject to the following provisions which need not be contained therein:

(a) The liability of a company under a motor vehicle liability policy shall become absolute when loss or damage covered by the policy occurs and the satisfaction by the insured of a final judgment of the loss or damage shall not be a condition precedent to the right or duty of the carrier to make payment on account of the loss or damage. No such policy shall be canceled or annulled as respects any loss or damage by any agreement between the carrier and the insured after the insured has become responsible for the loss or damage and any such cancellation or annulment shall be void. Upon the recovery of a final judgment against a person for the loss of damage if the judgment debtor was at the accrual of the cause of action insured against liability therefor under a motor vehicle liability policy, the judgment creditor shall be entitled to have the insurance money applied to the satisfaction of the judgment. The policy may provide that the insured or a person covered by the policy shall reimburse the company for payments made on account of an accident, claim or suit involving a breach of the terms, provisions or conditions of the policy; and, if the policy provides for limits in excess of the limits designated in this section the insurance carrier may plead against the judgment creditor, with respect to the amount of the excess limits of liability any defenses which it may be entitled to plead against the insured. The policy may further provide for the prorating of the insurance thereunder with other applicable valid and collectible insurance.

(b) ....

[Ibid. (emphasis added).]

As noted by the statutory footnote, sections N.J.S.A. 39:6-46 and N.J.S.A. 39:6-47 of the original act have been repealed. ³ Automobile liability insurance is now mandated by the "New Jersey Automobile Reparation Reform Act," N.J.S.A. 39:6A-1 to -35, and particularly by N.J.S.A. 39:6A-3, and by N.J.S.A. 39:6B-1, found within the chapter entitled "Compulsory Motor Vehicle Insurance." N.J.S.A. 39:6A-3 and N.J.S.A. 39:6B-1 contain identical language: "Every owner or registered owner of an automobile registered or principally garaged in this State shall maintain automobile coverage." The mandated coverage is $15,000 per person, $30,000 per accident, and $5,000 for property damage.

In analyzing the provisions of N.J.S.A. 39:6-48, we note that the statute encompasses a general rule applicable to automobile insurance:

"It has been universally held or recognized that an insurer cannot, on the ground of fraud or misrepresentations relating to the inception of the policy, retrospectively avoid coverage under a compulsory or financial responsibility insurance law so as to escape liability to a third party...."

[Williams v. American Home Assurance Co., 121 N.J.Super. 351, 364, 297 A.2d 193 (App.Div.1972) (emphasis added) (quoting 7 Am.Jur.2d, Automobile Insurance, § 9 at 303 (1963), certif. denied, 62 N.J. 260, 300 A.2d 344 (1973)).]

N.J.S.A. 39:6-48 also provides that a liability carrier may plead against a judgment creditor of its insured any defense which the insurance carrier had against its insured when the judgment creditor seeks to recover any sum in excess of mandatory insurance coverage. No defense is available to the insurance carrier for the mandated insurance coverage. Based upon N.J.S.A. 39:6-48, if Jack Berk, for example, were to recover a judgment against Marotta in the litigation now pending in Philadelphia, he would become a judgment creditor of Marotta and would then be entitled to assert a claim against the NJAFIUA for the payment of that judgment up to $15,000. Any...