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Hesser v. Harleysville-Garden State Ins. Co.

January 31, 1996

DENISE A. HESSER, PLAINTIFF-RESPONDENT,
v.
HARLEYSVILLE-GARDEN STATE INSURANCE CO., DEFENDANT-APPELLANT.



On appeal from the Superior Court, Law Division, Camden County.

Approved for Publication January 31, 1996.

Before Judges Skillman, Levy and Eichen. The opinion of the court was delivered by P. G. Levy, J.A.D.

The opinion of the court was delivered by: Levy

The opinion of the court was delivered by P. G. LEVY, J.A.D.

In this matter we consider whether plaintiff's automobile insurance policy or N.J.S.A. 17:28-1.1, or both, provided $75,000 uninsured motorist coverage plus $75,000 underinsured motorist coverage for her injuries from an accident involving both uninsured and underinsured vehicles, under a liability policy declaring $75,000 to be its "maximum limit of liability for all damages resulting from any one accident." Plaintiff was granted a declaratory judgment, providing the total of both coverages available regardless of the limit. We disagree and therefore reverse.

Plaintiff was a passenger in a car owned and operated by Linda Freund which collided with an automobile owned and driven by Carmen Sylvester. Freund was insured by Keystone Insurance Companies with liability coverage limits of $15,000 per person and $30,000 per accident, while Sylvester was uninsured. Each passenger (three in the Freund vehicle and one in Sylvester's) was seriously injured, and Keystone agreed to tender its $30,000 policy limit, subject to the passengers' agreement to equitably distribute those proceeds.

Defendant Harleysville Garden State Insurance Co. (Harleysville) issued a personal auto policy to plaintiff. She was seriously hurt, with injuries to her brain, skull and face. Plaintiff notified defendant that she sought $75,000 for her claim against Sylvester under the policy's uninsured motorist (UM) coverage as well as $75,000 for her claim against Freund under the underinsured motorist (UIM) coverage. Harleysville agreed to pay $75,000 to settle plaintiff's UM claim but denied any availability of UIM coverage because its total liability under the policy was limited to $75,000 for any one accident.

The various coverages selected when the Harleysville policy was purchased are summarily stated on the declarations page simply as:

Coverages Limits of Liability

LIABILITY $75,000 EA ACCDNT

UNINSURED MOTORIST $75,000 EA ACCDNT

Part C of the policy is the endorsement for "Uninsured Motorists Coverage - New Jersey." While both the declaration of coverage and the endorsement use only the term "uninsured motorist," the policy also includes coverage for underinsured motorists in this endorsement. The "schedule" listing the vehicles to be insured with their attendant limits of liability and premiums is headed (in bold type) by the words: "UNINSURED MOTORISTS COVERAGE (Includes Underinsured Motorists Coverage). The "insuring agreement" begins by stating:

We will pay compensatory damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" ...


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