On appeal from Superior Court, Chancery Division, Morris County.
Lynch, Crane and Horn. The opinion of the court was delivered by Crane, J.A.D.
Defendant appeals from a final judgment of the Chancery Division which declared that the Uninsured Motorist Endorsement on a policy issued by defendant affords coverage to plaintiffs and ordered defendant to proceed to arbitrate plaintiffs' claims. Plaintiffs have cross-appealed from that part of the judgment which denied them counsel fees.
The case was considered by the trial judge without hearing testimony since the facts were undisputed. The essential facts are that while plaintiff Jose Fernandez was living in New Jersey in 1974 he procured an insurance policy from defendant covering his 1969 Mercury and his 1964 Chevrolet. During the period of coverage Paulina Fernandez, Jose's
wife, and Eugenio Berovides, Jose's brother-in-law who resided in the Fernandez household, were injured in an automobile collision with an uninsured vehicle in Atlanta, Georgia. At the time of the collision Paulina and Eugenio were riding in an uninsured vehicle owned and operated by Eugenio.
Defendant admits that each of the plaintiffs is in the status of an insured under the policy. Defendant contends however that coverage must be denied because of the terms of an exclusion in the policy which reads as follows:
This insurance does not apply:
(b) to bodily injury to an insured while occupying a highway vehicle (other than an insured highway vehicle) owned by the named insured, any designated insured or any relative resident in the same household as the named or designated insured, or through being struck by such a vehicle, but this exclusion does not apply to the named insured or his relatives while occupying or if struck by a highway vehicle owned by a designated insured or his relatives.
In essence, the clause excludes coverage when an insured is occupying an uninsured vehicle whether the same is owned by him, a designated insured or any relative resident in the same household. The essential question we must determine is whether the exclusionary clause is violative of the requirement of N.J.S.A. 17:28-1.1 that an automobile liability policy issued in this State must include coverage
We are of the view that as a matter of statutory construction the clause in question seeks to place a limitation on the coverage afforded ...