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Tozzo v. Universal Underwriters Insurance Co.

Decided: January 25, 1993.

DOMINICK TOZZO, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF CAROLE TOZZO, DECEASED, PLAINTIFF-APPELLANT-CROSS-RESPONDENT,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, DEFENDANT-RESPONDENT-CROSS-APPELLANT, AND LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Havey, Stern and Brochin. The opinion of the court was delivered by Brochin, J.A.D.

Brochin

Henry Santiago drove his car on the wrong side of the road and collided with an automobile in which plaintiff Dominick Tozzo and Carole Tozzo, his wife, were passengers. Mr. Tozzo was seriously injured and Mrs. Tozzo died as the result of the collision.

At the time of the collision, Mr. Santiago was employed by the Federal Drug Enforcement Agency. The automobile he was driving was owned by the federal government, but he was not using it on government business. The government denied liability. Mr. Santiago is said to have no personal liability insurance and no significant assets.

Mr. Tozzo filed a personal injury action in federal court against the United States and a declaratory judgment action in the New Jersey Superior Court against his automobile insurer, defendant Universal Underwriters Insurance Company. In the federal action he sought damages for his own personal injury

and for his wife's death, and in the state action, indemnification under the uninsured motorist coverage of his automobile insurance policy. Universal Underwriters intervened in the federal action.

Mr. Tozzo's policy afforded him the coverage required by N.J.S.A. 17:28-1. The statute provides for payment to the insured of

all or part of the sums which the insured or his legal representative shall be legally entitled to recover as damages from the operator or owner of an uninsured motor vehicle. . . because of bodily injury, sickness or disease, including death resulting therefrom sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured . . . motor vehicle. . . .

[ N.J.S.A. 17:28-1.1(a) (Emphasis added).]

However, "uninsured motor vehicle" is defined so that it excludes a "motor vehicle which is owned by the United States or Canada or a state, political subdivision or agency of those governments or any of the foregoing. . . ." N.J.S.A. 17:28-1.1(e)(2)(c).

Universal Underwriters denied coverage on the ground that the tortfeasor was not driving an "uninsured motor vehicle" because his automobile was owned by the United States. Mr. Tozzo moved for summary judgment. Judge Peter B. Cooper granted his motion and ordered Universal Underwriters to submit his uninsured motorist claim to arbitration, but provided that the insurer would "have no obligation to pay . . . the amount awarded at arbitration until a reasonable time after the judicial resolution of the [personal injury] case now pending in Federal Court. . . ."

Mr. Tozzo appealed from the provision of the order deferring payment until Disposition of the suit against the United States. Universal Underwriters cross-appealed from the ruling that its insured was ...


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