On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Before Judges Pressler, Dreier and Kleiner.
The opinion of the court was delivered by
Plaintiff, Joanne Eason, appeals from the involuntary dismissal of her claims against defendant Township of Montclair on the basis of the immunity provided by the New Jersey Tort Claims Act. She also appeals from a summary judgment enforcing a twenty percent "reimbursement set-off" for non-economic losses contained in plaintiff's insurance policy.
On June 4, 1989, plaintiff was driving north on Willowdale Avenue in Montclair. She had not driven on Willowdale in the last twenty years and did not know whether it was controlled by a stop sign at the intersection of Washington Avenue. She knew, however, that most intersections in Montclair were governed by some form of traffic control. ("I knew that most of Montclair streets either went straight through or there was a stop light or stop sign"). As she approached the intersection, plaintiff looked for a stop sign or some other type of traffic control device, and not seeing one, proceeded into the intersection. At the same time, defendant Chester Johnstone was driving eastbound on Washington Avenue. It is undisputed that although there had been a stop sign controlling the traffic on Willowdale Avenue, the sign was missing at the time of the accident. Defendant Johnstone knew that Washington Avenue was a through street and therefore did not stop at the intersection. An accident resulted and plaintiff was severely injured.
At trial, the Township moved for an involuntary dismissal of the claims against it. The trial Judge granted the motion, finding the Township immune from liability under the Tort Claims Act as interpreted in Smith v. State of New Jersey, Dep't of Trans., 247 N.J. Super. 62 (App. Div. 1991), certif. denied, 130 N.J. 13 (1992). Plaintiff's appeal forces us to reexamine this court's reasoning in Smith, holding that a public entity will not be liable for its failure to replace a warning sign; our reasoning in Shuttleworth v. Conti Constr. Co., Inc., 193 N.J. Super. 469, 475 A.2d 48 (App. Div. 1984), holding that a public entity may be liable for its failure to maintain a stop sign; and the Supreme Court's treatment of a related railroad signal problem in Weiss v. New Jersey Transit, 128 N.J. 376, 608 A.2d 254 (1992).
Plaintiff also appeals from the summary judgment granted to the New Jersey Automobile Full Insurance Underwriting Association (JUA) on her complaint seeking to void the reimbursement set-off provision contained in her automobile insurance policy. Plaintiff's insurance policy, issued through the JUA, contained a provision which apparently allows the JUA to recoup up to twenty percent of any recovery for noneconomic loss. Plaintiff alleged that she did not request nor did she agree to be bound by those provision and that the inclusion of those provisions resulted from the agent's fraud or unconscionable conduct. The trial court ruled that even if plaintiff's allegations of fraud and unconscionable conduct on the part of the insurer were true, a reasonable inspection of plaintiff's policy would have revealed the set-off provision. Accordingly, the trial court found that plaintiff would be bound by the terms of her policy.
On January 11, 1990, plaintiff filed her complaint charging Johnstone with negligence,*fn1 and also alleging that the Township of
Montclair was negligent in failing to replace the missing stop sign. Several months later plaintiff filed a separate action against defendants Pennsylvania National Mutual Casualty Company, the servicing carrier for the JUA and Regency Insurance Agency, the producing broker. In this complaint plaintiff sought to have the reimbursement set-off provision contained in her automobile insurance policy declared null and void. Plaintiff initially sought damages in the amount of $5,000. Fifteen months later plaintiff filed an amended complaint in the insurance action adding the JUA as a defendant and increasing the amount of damages plaintiff claimed to $2,500,000. The tort claims and the policy actions were consolidated.
Plaintiff was initially insured through Continental Casualty Company as a servicing carrier for the JUA. When the Continental policy was about to expire, plaintiff contacted Regency Insurance regarding a new policy. Plaintiff allegedly requested that her new policy contain the same coverage as her expiring policy. Although the prior policy did not have a reimbursement set-off, the application for the new policy requested such a provision. Plaintiff insists that she did not fill out the application requesting this coverage. There is support for her allegation: the application lists plaintiff as a single male although she is a divorced female; her occupation is misspelled as "auditer;" her address is misspelled as "Monclair;" the premium is added incorrectly. At oral argument on the summary judgment motion, the attorney for JUA conceded that someone other than plaintiff filled out the application.
Plaintiff was, however, sent renewals of her insurance policy clearly setting forth her coverage. All of the policies stated on the second page of the declaration "REIMBURSEMENT SET-OFF APPLIES." Plaintiff acknowledges that she received at least two of these renewals, and plaintiff's premium was lower because of the set-off.
On the first day of trial, the JUA's motion to sever the issue of the validity of the reimbursement set-off from the personal injury action was granted. At that time, the JUA also moved for summary judgment, but the motion was carried for three weeks, and was then granted. Plaintiff was the first witness. At the end of her testimony, the Township successfully moved to dismiss the claims against it based on the immunity provided in the Tort Claims Act, N.J.S.A. 59:1-1 et seq. Plaintiff now ...