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. ...