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Zimmerman v. United Services Automobile Association

Decided: December 2, 1992.

MARK C. ZIMMERMAN, PLAINTIFF-APPELLANT,
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION AND JOHN DOES 1 THROUGH 5, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Burlington County.

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

Pressler

[260 NJSuper Page 370] Plaintiff Mark C. Zimmerman appeals from an order denying his motion to vacate the order dismissing his complaint with prejudice. The dismissal was ordered because of the failure to

have timely served defendant with fully responsive interrogatories. We reverse.

In August 1988, plaintiff sustained severe back injuries in an automobile accident. He required two laminectomies and incurred medical expenses in excess of $40,000. He was then an insured of defendant United Services Automobile Association, which had issued an automobile liability policy to him providing coverage of $100,000/$300,000. That policy also had an underinsured motorist provision (UIM), affording, however, UIM coverage of only $15,000/$30,000. The tortfeasor allegedly responsible for the accident was covered by a minimum $15,000/$30,000 policy, thus precluding plaintiff's recourse to his own UIM coverage. He brought this action for reformation of the policy claiming that defendant had breached its statutory duty by not offering him optional UIM coverage in addition to the mandated minimum.

The complaint was filed in late November 1989. It alleged, in critical part, that plaintiff, having no expertise in insurance matters, relied on the advice of defendant's agents in choosing his coverages. Based on that reliance and the "professional information and choices he had received from defendant," plaintiff alleged that he opted to purchase $100,000 in basic liability coverage and, had he known of the additional UIM option, would have elected that coverage in the amount of $100,000 as well. By its answer, filed five months later, defendant admitted its "duty to comply with applicable law relating to notification to plaintiff of available additional underinsured motorist coverage." It alleged, however, without specificity, that "it complied with the applicable law."

In June 1990, some fourteen months after the filing and service of its answer, defendant served plaintiff with a set of interrogatories containing 62 questions and 88 subparts. The questions addressed both plaintiff's medical condition and his reformation cause of action, making a number of duplicative inquiries respecting his requests over the years for policy

changes and respecting, as well, the circumstances of the issuance to him of the subject policy with its minimum UIM coverage.

Plaintiff did not answer the interrogatories. Defendant's substituted counsel wrote to plaintiff's attorney requesting answers, and there were apparently also some telephone calls between the lawyers' offices, none of which succeeded in evoking answers. Consequently, in June 1991 defendant moved for dismissal of plaintiff's action for failure to answer interrogatories. It does not appear that plaintiff responded to this motion at all, and on July 26, 1991, a dismissal order was entered. The order did not specify whether the dismissal was with or without prejudice.

Following entry and service of the order, plaintiff's attorney finally prepared answers which plaintiff certified and were apparently served on defendant on October 25, 1991, simultaneously with plaintiff's motion for reinstatement of the complaint. That motion was supported by counsel's certification stating that "fully responsive answers" had now been served and that the $300 payment to the clerk required by R. 4:23-5(a)(1) had been paid. Defendant responded by filing a cross motion for dismissal of the complaint with prejudice. The basis of the motion was the assertion that the answers were not adequately responsive, thus depriving defendant of its "right to know what plaintiff's claim is . . . ." Both parties having waived argument, these motions were considered on the papers. An order was entered on November 8, 1991, dismissing the complaint with prejudice. The record indicates neither a response from plaintiff to the cross motion nor any indication of reasons by the Judge for his grant of the cross motion.

Plaintiff promptly made another motion, again seeking reinstatement of the complaint and, in the alternative, reconsideration of the dismissal with prejudice. Counsel asserted in support of this motion that the original answers had been adequate to apprise defendant of the claim and beyond that, that supplementary

answers had been served on defendant on December 3, 1991. This motion was orally argued. Without a substantive consideration of the interrogatories themselves, the answers and the supplementary answers, the court concluded in general terms that the answers did not appear to be adequately ...


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