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Pinto v. Garretson

Decided: December 29, 1989.

DAVID PINTO, EXECUTOR OF THE ESTATE OF THE LATE EZEKIEL PINTO AND HILDA PINTO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
ROBERT N. GARRETSON AND ALLSTATE INSURANCE COMPANY, DEFENDANTS-RESPONDENTS



Michels, R.s. Cohen and Brochin. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Plaintiffs David Pinto, executor of the estate of the late Ezekiel Pinto and Hilda Pinto, individually, appeal from a summary judgment of the Law Division entered in favor of defendants Allstate Insurance Company (Allstate) and Robert N. Garretson (Garretson). Plaintiffs instituted suit against Allstate and Garretson, alleging professional negligence in failing to exercise due diligence in the sale of underinsured motorist coverage to Ezekiel Pinto (Pinto). On appeal, plaintiffs contend that the trial court erred in granting summary judgment in favor of the defendants, because Garretson was negligent in failing to advise Pinto of the importance of the Buyer's Guide/Written Notice and in failing to recommend that Pinto purchase additional underinsured motorist coverage. Additionally, plaintiffs contend that Allstate was vicariously liable for Garretson's negligence.

We have carefully considered the record in light of the arguments presented and are satisfied that the trial court properly granted summary judgment in favor of defendants in this matter and that all of the issues of law raised are clearly without merit. R. 2:11-3(e)(1)(E). Accordingly, the summary judgment under review is affirmed substantially for the reasons expressed by Judge Reavey in her oral opinion of May 27, 1988.

Additionally, on January 1, 1984, an amended version of the uninsured and underinsured motorist coverage statute, N.J.S.A. 17:28-1.1(b), became operative. The amendment required for the first time that insurers offer as an option increased limits of uninsured (UM) and underinsured (UIM) coverage up to the

bodily injury liability limits carried by the insured. As amended in 1984, N.J.S.A. 17:28-1.1(b) specifically provided:

b. Uninsured and underinsured motorist coverage shall be provided as an option by an insurer to the named insured up to at least the following limits: $250,000.00 each person and $500,000.00 each accident for bodily injury; $100,000.00 each accident for property damage or $500,000.00 single limit, subject to an exclusion of the first $250.00, of such damage to property for each accident, except that the limits for uninsured and underinsured motorist coverage shall not exceed the insured's motor vehicle liability policy limits for bodily injury and property damage, respectively.

Rates for uninsured and underinsured motorist coverage for the same limits shall, for each filer, be uniform on a Statewide basis without regard to classification or territory.

Pursuant to Section 17 of the New Jersey Automobile Insurance Freedom of Choice and Cost Containment Act of 1984, the Commissioner of Insurance promulgated standards for the written notice and buyer's guide to be provided to applicants for automobile insurance and policyholders. N.J.A.C. 11:3-15.1 through 15.9. The Commissioner's regulations established "the necessary minimum standards companies shall use in giving notice of available coverages, options and rate credits." N.J.A.C. 11:3-15.1.

These regulations required all New Jersey insurers to provide a Buyer's Guide/Written Notice and coverage selection form to all policyholders on or before May 15, 1984. See N.J.A.C. 11:3-15.3(b). The section further provided for inclusion of a Written Notice with each notice of renewal for the policies renewing after July 1, 1984. N.J.A.C. 11:3-15.3(c). The regulations detailed the required content of the written notice and the buyer's guide. N.J.A.C. 11:3-15.4; 11:3-15.5. Additionally, the regulation stated that the "written notice also shall provide a selection form enabling the named insured to choose coverage options." N.J.A.C. 11:3-15.4(b). The regulations also set forth the specific coverages and options to be included in the written notice and buyer's guide, including higher limits of uninsured and underinsured motorist coverage. N.J.A.C. 11:3-15.6(a)(5). Finally, N.J.A.C. 11:3-15.9 provides that:

The buyer's guide and written notice incorporate and therefore satisfy any and all other notice requirements previously set forth for the coverage options required by the New Jersey Automobile Reparation Reform Act, the New Jersey Automobile Insurance Reform Act of 1982 and the New Jersey Automobile Insurance Freedom of Choice and Cost Containment Act of 1984.

Pursuant to these regulations, by May 1984, Allstate mailed its Buyer's Guide/Written Notice to all insureds, including Pinto. Section IV of the Buyer's Guide, entitled "Uninsured Motorists Coverage (Including ...


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