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Walkowitz v. Royal Globe Insurance Co.

Decided: May 5, 1977.

HOWARD WALKOWITZ, PLAINTIFF-APPELLANT,
v.
ROYAL GLOBE INSURANCE COMPANY, DEFENDANT-RESPONDENT



Lora, Crane and Michels. The opinion of the court was delivered by Michels, J.A.D.

Michels

Plaintiff Howard Walkowitz appeals from a summary judgment of the Law Division in favor of defendant Royal Globe Insurance Company declaring that the provision of its uninsured motorist (UM) endorsement which provides for a reduction in the amount payable for bodily injury by the amount of any worker's compensation award was not against public policy, and dismissing his damage claim under the UM endorsement because he had been awarded worker's compensation benefits in excess of the $10,000 limit provided by such coverage.

The undisputed facts are that plaintiff sustained personal injuries when he was involved in an automobile accident with an uninsured driver. At the time of the accident plaintiff was in the course of his employment for Rolling Auto

Store, Inc. The worker's compensation insurance carrier for Rolling Auto paid plaintiff the compensation benefits awarded, which amounted to $13,750. Plaintiff also made claim as an insured under the UM coverage provided by a liability policy issued to Rolling Auto by Royal Globe. The UM endorsement contains limits of liability for bodily injury of $10,000 a person and $20,000 an accident. Royal Globe declined payment, contending that it was entitled to set off against the $10,000 limit the $13,750 in worker's compensation benefits paid to plaintiff. Justification for the declination of payment was found in the UM endorsement, which, in pertinent part, provides:

III. LIMITS OF LIABILITY

Regardless of the number of insureds under this insurance, the company's liability is limited as follows:

(c) Any amount payable under the terms of this insurance because of bodily injury * * * sustained in an accident by a person who is an insured under the coverage shall be reduced by

(2) the amount paid and the present value of all amounts payable on account of such bodily injury under any workmens compensation law, disability benefits law or any similar law.

Plaintiff thereupon instituted this action seeking a declaration that the worker's compensation set-off provision was invalid and unenforceable as against public policy and immediately moved for summary judgment. The trial judge denied the motion, holding that the provision was not against public policy. The judge set off plaintiff's compensation award against the limit of coverage available under the UM endorsement and, since the award exceeded the limit of coverage, dismissed plaintiff's complaint. This appeal followed.

N.J.S.A. 17:28-1.1, which mandates the tender of UM coverage, in pertinent part provides:

No automobile liability policy or renewal of such policy, of insurance insuring against loss resulting from ...


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