On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Michels, Skillman and Wefing. The opinion of the court was delivered by Michels, P.J.A.D.
Defendant Rutgers Casualty Insurance Company (Rutgers) appeals and plaintiff Royal Insurance Company (Royal) cross-appeals from a summary judgment of the Law Division that (1) declared that Rutgers and Royal shall equally pay an underinsured motorist arbitration award and post-judgment interest to defendant Sherri L. Davidson (Ms. Davidson) and (2) ordered Rutgers to reimburse Royal for fifty percent of all costs incurred by Royal in the arbitration proceedings, including the arbitrators' fees and Royal's attorneys' fees. The pivotal issue raised by this appeal is whether the Rutgers insurance policy or the Royal insurance policy provided Ms. Davidson with her primary underinsured motorist coverage or whether both policies provided concurrent coverage and, if so, what amount each policy must contribute toward payment of the award.
The facts giving rise to this appeal are undisputed. Ms. Davidson was injured as a result of an automobile accident involving Ms. Sandra Mimms. Ms. Davidson was operating an automobile owned by her employer, Arrow Pontiac, a Division of Auerbach Chevrolet Corporation. The Arrow Pontiac automobile was insured under a garage policy issued by Royal to Auerbach Chevrolet Corporation which contained underinsured motorist coverage with limits of $500,000 per accident. Ms. Davidson, as part of her compensation package, was permitted to drive the automobile for both personal and business use, but was required to contribute $25 per month towards the cost of the insurance covering that vehicle.
Ms. Mimms was operating an automobile which was insured by a policy with a personal injury liability limit of $25,000. Ms. Davidson made a claim against Ms. Mimms to recover damages for the personal injuries she sustained as a result of the accident. Ms. Mimms' insurance company paid Ms. Davidson the entire $25,000 policy limit in satisfaction of her claim against Ms. Mimms.
At the time of the accident, Ms. Davidson's husband, Carl L. Davidson, owned a GMC truck which he had purchased jointly with Ms. Davidson. He also owned a Chevette passenger automobile.
Both the GMC truck and the Chevette were covered by a Rutgers personal automobile policy which named "Carl L. & Sherri L. Davidson" as insureds and contained underinsured motorist coverage with limits of $300,000 per accident.
After Ms. Davidson settled with Ms. Mimms, she filed an arbitration claim against Rutgers and Royal, seeking to recover the amount of her uncompensated loss under the underinsured motorist provisions of the respective policies. Both Rutgers and Royal refused to pay Ms. Davidson, each contending that its policy provided only excess underinsured motorist coverage, not primary coverage. Prior to the scheduled arbitration hearing, Rutgers informed Ms. Davidson and Royal that it did not intend to participate in the arbitration. Ms. Davidson thereupon instituted an action in the Law Division seeking a court order to compel Rutgers to participate in the arbitration proceedings or, alternatively, to appoint an arbitrator to represent Rutgers at those proceedings. The Law Division did not order Rutgers to appear, but ordered that the arbitrator for Royal also act as the arbitrator for Rutgers.
The arbitration proceeded without the participation of a representative for Rutgers. At the Conclusion of the proceedings, the panel of arbitrators awarded Ms. Davidson damages in the total sum of $82,500 for the personal injuries she sustained in the accident. Since Ms. Davidson had received $25,000 from Ms. Mimms' insurance company, her net underinsured motorist award was $57,500. By agreement, the panel of arbitrators did not resolve the issue of the liability of Rutgers and Royal for payment of the award because this issue was to be resolved by the Law Division. Following the arbitration, Royal demanded that Rutgers reimburse it for one-half of the arbitration fees and costs, but Rutgers refused.
Royal thereupon instituted this action in the Law Division against Rutgers and Ms. Davidson, seeking a declaratory judgment that (1) Rutgers pay Ms. Davidson the balance due on the underinsured motorist award of $57,500 on the ground that the
Rutgers policy provided the primary coverage; (2) Rutgers reimburse it for one-half of the fees and costs incurred in prosecuting the arbitration; and (3) Rutgers reimburse it for the attorneys' fees and costs incurred in prosecuting the declaratory judgment action. Rutgers denied that it was under any liability to Royal or to Ms. Davidson because it claimed that the Royal policy provided the primary underinsured motorist coverage and its policy only provided excess coverage. By way of counterclaim, Rutgers sought a declaratory judgment that (1) its underinsured motorist coverage was excess to the primary coverage provided by the Royal policy; (2) it was not under any liability to Ms. Davidson because the net arbitration award of $57,500 was less than the limits of Royal's underinsured motorist coverage; and (3) Royal reimburse it for all attorneys' fees and costs incurred in defending this action. Alternatively, Rutgers contended that if it were under any liability to Ms. Davidson, then it was only liable for its pro rata share of the net arbitration award, based on the proportion that its limit of liability bore to the total limits of all applicable underinsured motorist coverage.
On cross-motions for summary judgment, the trial court found that "because of certain factors of Ms. Davidson's employment", the Royal policy "was personal insurance coverage and basically in the nature of first party coverage." The trial court also found that the underinsured motorist coverage of the Rutgers policy issued to Ms. Davidson and her husband was also "personal and basically first party coverage," and ordered that Royal and Rutgers each pay fifty percent of the net arbitration award and that Rutgers reimburse Royal for one-half of the cost of the arbitration proceedings, including the arbitrators' fees and Royal's attorneys' fees. This appeal and cross-appeal followed.
Rutgers seeks a reversal of the judgment, contending that the Royal policy issued to Auerbach Chevrolet Corporation covering the automobile operated by Ms. Davidson was the primary underinsured motorist coverage and that the Rutgers policy issued to Ms. ...