Vassiliu v. Daimler Chrysler Corp.
| Decision Date | 18 December 2000 |
| Citation | 813 A.2d 608,356 N.J. Super. 546 |
| Court | New Jersey Superior Court |
| Parties | Christine R. VASSILIU, as General Administratrix and as Administratrix ad Prosequendum of the Estate of Hristos Vassiliu, Deceased, Plaintiffs, v. DAIMLER CHRYSLER CORPORTION, Mt. Ephraim Dodge, Inc., Foulke Management Corporation and Shaun L. O'Brien, jointly, severally, or in the alternative, Defendants, Christine R. Vassiliu, as General Administratrix and as Administratrix ad Prosequendum of the Estate of Hristos Vassiliu, Deceased, Plaintiffs, v. Prudential Property & Casualty Insurance Company; Selective Insurance Company and Parkway Insurance Company, Defendants. |
Louis J. DeVoto, Ferrara, Rossetti & DeVoto, Cherry Hill, for Plaintiffs.
Stephen G. Sobocinski, Marlton, Tucker & Munyon, for Defendant, Selective Insurance Company.
Barbara J. Davis, Marshall, Dennehey, Warner, Coleman & Goggin, Cherry Hill, for Defendant, Prudential Property & Casualty Insurance Company.
This case presents an issue of first impression: should a wrongful death action and a survival action be considered as two separate claims, for purposes of determining the coverages available under "per person" or "per injury" split limits liability, uninsured motorist (UM) or underinsured motorist (UIM) insurance policies? The answer must be in the affirmative, since by statute, and under the recent pronouncement of the Supreme Court in Smith v. Whitaker, 160 N.J. 221, 734 A.2d 243 (1999), wrongful death actions and survival actions are treated as separate and discrete actions affording different damages remedies to different parties, even though they may arise from the identical occurrence—the death of a family member from injuries sustained in a vehicular accident. Accordingly, since the coverage limits of the Prudential liability insurance policy at issue in this case are $15,000/$30,000, a total of $30,000 is available: $15,000 for the wrongful death action, and $15,000 for the survival action. Similarly, since the coverage limits of the Prudential and Selective UIM policies at issue are each $100,000/$300,000, a total of $200,000 in UIM coverage is available: $100,000 for the wrongful death action, and $100,000 for the survival action. As discussed below, these UIM limits are reducible only by the amount of the liability insurance coverages available to defendant Shaun O'Brien.
Hristos Vassiliu was injured in a motor vehicle accident on June 24, 1995. He died from his injuries later that day. A survival action claim was brought by the General Administratrix of his estate, and a wrongful death action was brought by his Administratrix ad Prosequendum. The defendants were Shaun O'Brien, the motorist who ran a stop sign at a controlled intersection and broadsided Mr. Vassiliu's van as it was travelling on the through street in the intersection; and Daimler Chrysler Corp. and Mt. Ephraim Dodge, Inc., the manufacturer and seller, respectively, of Mr. Vassiliu's van. The theory alleged against Daimler Chrysler and Mt. Ephraim Dodge was that the seat belt system was defectively designed, the van was thus not "crashworthy", and the defect was a cause of enhanced injuries to and the death of Mr. Vassiliu. See, Poliseno v. General Motors Corp., 328 N.J.Super. 41, 744 A.2d 679 (App.Div.2000) ().
Defendant O'Brien was insured under two liability policies: (a) a $35,000 single limit policy issued by New Hampshire Insurance Co., who has deposited the full limit into court; and (b) a $15,000/$30,000 per person split limits policy issued by Prudential Property & Casualty Insurance Co. ("Prudential"). Prudential has deposited $15,000 from its policy into court. Plaintiffs also made underinsured motorist (UIM) claims under a $100,000/$300,000 UIM policy issued by Prudential, and a $100,000/$300,000 UIM policy issued by Selective Insurance Company ("Selective").1
Months before trial, notice was given by plaintiffs' counsel to the UIM carriers, Prudential and Selective, of the pendency of these actions, the trial date, and their right to intervene and participate. See, Zirger v. General Accident Ins. Co., 144 N.J. 327, 676 A.2d 1065 (1996) (). Neither of the UIM carriers appeared at trial or otherwise intervened in these actions.
Prior to jury selection, the wrongful death action and survival action claims against Daimler Chrysler and Mt. Ephraim Dodge were settled for $215,000, without any admission or adjudication of any fault or liability on the part of those settling defendants. Plaintiffs concede that the settlement amount exceeds the maximum concurrent limits of the UIM policies of Prudential and Selective.
A bench trial was conducted on plaintiffs' wrongful death action and survival action claims against the remaining defendant, Shaun L. O'Brien. She did not assert any contribution or indemnification claim against Daimler Chrysler, nor present any proofs that Daimler Chrysler was a culpable tortfeasor or in any manner at fault or responsible for the accident, Mr. Vassiliu's injuries, or his death. As noted, Prudential and Selective chose not to appear at trial, thereby foregoing their right to establish that Daimler Chrysler was an actually responsible tortfeasor.
In a written opinion, this Court determined that Ms. O'Brien was 100% negligent, and that her negligence was the sole proximate cause of the accident. The wrongful death action and survival action were treated as separate claims, pursuant to N.J.S.A. 2A:15-3 and N.J.S.A. 2A:31-1, et seq., and in accordance with the Supreme Court's pronouncements in Smith v. Whitaker, supra. The sum of $175,000 was awarded to Mr. Vassiliu's estate for the claim brought under the Survival Act, for his injuries, pain and suffering and fear of impending death. The sum of $1,750,000 was awarded to Mr. Vassiliu's dependent intestate survivors for the claim brought under the Wrongful Death Act, plus $8,516.32 for funeral expenses. No appeal was taken by defendant O'Brien.
The matter is now before the Court on two fronts. First, plaintiffs seek to compel payment of an additional $15,000 by Prudential from its liability policy, asserting that under Smith v. Whitaker, supra, the wrongful death action and survival actions are two separate causes of action and claims, and thus Prudential owes $15,000 towards the $175,000 survival action award, plus an additional $15,000 towards the $1,758,516.32 wrongful death action award. Defendant O'Brien joins plaintiffs in this regard, demanding that Prudential pay $30,000 on her behalf to the plaintiffs, towards satisfaction of the judgment that has been entered against her. Second, plaintiffs allege that a total of $200,000 should be available from the $100,000/$300, 000 concurrent UIM policies of Prudential and Selective: $100,000 towards the $175,000 survival action award, and an additional $100,000 towards the $1,758,516.32 wrongful death award. Plaintiffs further recognize that the $200,000 in available UIM coverage is subject to a set-off, credit or reduction by the $65,000 total limits of the underlying New Hampshire and Prudential liability policies. Thus, plaintiffs seek a total of $135,000 in UIM benefits: $67,500 towards the survival action award, and $67,500 towards wrongful death action award.
Prudential and Selective contend that wrongful death action and survival action claims are not separate claims, and thus the total coverage available under their UIM policies is $100,000, not $200,000, less the amounts payable under the Prudential and New Hampshire liability policies. Prudential similarly asserts that only $15,000 is payable under its $15,00/$30,000 split limits liability policy, not $30,000. Finally, Prudential and Selective assert that pursuant to N.J.S.A. 17:28-1.1(e) and Banter v. Hanover Ins. Co., 247 N.J.Super. 94, 588 A.2d 870 (App.Div.1991), no UIM benefits are payable in this case under either UIM policy, since the settlement amount paid by Daimler Chrysler exceeds the limits of the Prudential and Selective policies.
New Jersey statutes authorize two separate causes of action for the tortious injury to and death of a decedent: (1) a wrongful death action, pursuant to N.J.S.A. 2A:31-1 to -6 ("Death By Wrongful Act"); and (2) a survival action, pursuant to N.J.S.A. 2A:15-3 ("Survivor's Act"), for injuries, lost wages, physical impairment or disability, pain, suffering, hedonic damages, punitive damages or other losses that accrued to the decedent between injury and death. Smith v. Whitaker, 160 N.J. at 230-35, 734 A.2d 243 (); Alfone v. Sarno, 87 N.J. 99, 103-110, 432 A.2d 857 (1981) (); Eyoma v. Falco, 247 N.J.Super. 435, 589 A.2d 653 (App.Div.1991) ().
A Wrongful Death Act claim must be brought by the "Administrator ad prosequendum of the decedent", or the executor of the decedent's estate. N.J.S.A. 2A:31-2. A Survival Action claim is brought by the Administrator of the...
To continue reading
Request your trial