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Weinisch v. Sawyer

December 6, 1989


King, Shebell and Baime. The opinion of the court was delivered by Shebell, J.A.D.


[237 NJSuper Page 196] We are called upon to review the propriety of a Law Division ruling, in a damage action requesting reformation of an insurance contract, that plaintiff was not entitled to a jury trial on any issue other than punitive damages. In his complaint, plaintiff Bibi Weinisch alleged that defendants Allstate Insurance Co., Inc. (Allstate) and its agent Thomas E. Sawyer (Sawyer) breached their duty to him by failing to advise him of the availability of higher underinsured motorist (UIM) coverage under his insurance contract. Plaintiff sought to reform the contract and also compensatory and punitive damages. The action against Allstate and its agent Sawyer alleged negligence,

breach of contract and breach of statutory duty. Defendants' answer denied the allegations and asserted that plaintiff had no right to a trial by jury.

Both parties filed motions for summary judgment and for in limine determinations. Defendant sought to strike plaintiff's jury demand on the one hand, and plaintiff attempted to limit defendants' introduction of plaintiff's failure to read informational material on the other. The motions for summary judgment were denied. The court struck plaintiff's request for a jury trial, except as to punitive damages. All other requests for in limine relief were denied. We denied plaintiff's motion for leave to appeal. A bench trial was held, after which the judge rendered an oral decision dismissing plaintiff's complaint. Plaintiff now appeals.

On May 25, 1984, plaintiff sustained injuries when his car was struck from the rear in Marlboro Township, New Jersey. Plaintiff filed suit against the negligent driver and settled with her insurance company for the policy limits of $100,000.

At the time of the accident, plaintiff had automobile liability coverage of $250,000/$500,000, with a $1,000,000 liability umbrella, but uninsured/underinsured motorist coverage (UM/UIM) of only $15,000/$30,000. Plaintiff alleged that defendants failed to advise him of the availability of optional UIM coverage of $250,000/$500,000 and that such failure was breach of a duty owed to him by defendants.

Plaintiff first purchased automobile insurance from Allstate in 1966, when New Jersey statutes and insurance regulations did not require carriers to offer uninsured or underinsured motorist coverage. See N.J.S.A. 17:28-1.1. In 1969, plaintiff instructed Sawyer to increase his bodily injury liability coverage to the highest available amount, $250,000/$500,000. From 1966 to 1983, plaintiff's policy was automatically renewed on a yearly basis. During that period, New Jersey law changed to require that every automobile liability policy issued or renewed in New Jersey contain a minimum statutory limit of uninsured

motorist coverage, and in 1973 that coverage was included in all Allstate automobile policies. Underinsured motorist coverage became available to Allstate customers in 1980 when Allstate became a subscriber to the Insurance Services Office.

The primary factual dispute between the parties involved conflicting versions of what transpired in May 1984, after plaintiff had received a packet of documents sent to him by Allstate. Plaintiff asserted that he had contacted Sawyer by phone concerning the information in the documents and was told that if he did not want to reduce his coverages or lower his premiums, he could ignore the documents. Sawyer, he maintained, advised him to throw away the form and not worry about it, that Sawyer would take care of it. Plaintiff claimed he threw away the package of Allstate documents based upon Sawyer's advice.

Plaintiff made this call to Sawyer from his home in the presence of his wife. She testified that she witnessed her husband's phone call to Sawyer in May 1984. She knew plaintiff had phoned Sawyer to talk about the documents he had received in the mail. Plaintiff claimed he did not read the brochures provided by Allstate because he felt that he was paying high premiums for a lot of insurance coverage and felt that his agent would take care of his needs if there was any additional coverage that he needed.

Sawyer had no recollection of the May 1984 conversation with plaintiff. He testified that his usual and ordinary business practice at that time, when he was receiving 25-30 calls a day about the Allstate information packets, was that when a policy-holder telephoned him he would answer any specific questions. When callers indicated that they did not understand a form, Sawyer would go over the entire form and explain the coverages or changes one by one. Sawyer asserted that had he received a call from plaintiff about the materials, he never would have advised him that the forms did not need to be filled out and returned, as Sawyer was aware that the documents

informed insureds that they could buy increased limits of coverage, including bodily injury, liability and UIM coverage, as well as a variety ...

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