On Appeal from Superior Court of New Jersey, Law Division, Morris County.
Approved for Publication March 11, 1996.
Before Judges Shebell, Stern and Wallace. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
The opinion of the court was delivered by SHEBELL, P.J.A.D.
Universal Insurance Company ("Universal") appeals from an order of the Law Division compelling arbitration under the uninsured motorist (UM) endorsement of a policy of motorcycle insurance it issued to plaintiff, David Kerwien, on the issue of whether his motor vehicle accident was caused by an unidentified hit and run vehicle. The endorsement, affording coverage of $15,000, covered accidents caused by a hit and run vehicle where the owner or operator "cannot be identified." It required arbitration if the parties were unable to agree as to whether the insured was legally entitled to recover or as to the amount of damages.
Based upon the information available as to the identity of the vehicle, plaintiff sued the Melone defendants, listed below. During the litigation, plaintiff settled with the Melones' insurance carrier for $35,000, without any admission of involvement by the Melones. Universal, therefore, denied that plaintiff was entitled to recover under the UM coverage of Universal's policy.
Thus, the issue presented is whether plaintiff, after obtaining a substantial settlement of his claim against certain parties based on their alleged ownership and operation of the hit and run vehicle, can thereafter obtain UM benefits from his own insurance company. Plaintiff asserts he may collect the difference between the settlement amount he received and the value of his damages to the extent of the UM coverage.
On December 31, 1991, plaintiffs, David Kerwien and his wife, Margarita, filed a complaint in the Law Division against defendants Jennifer Melone and Jane Doe, the alleged operators of the hit and run vehicle, and Lawrence A. Melone and Jean Melone, the alleged owners, for negligence arising out of the accident of June 7, 1991. Defendants' answer denied all allegations of the complaint.
On or about October 26, 1993, Universal moved to intervene, pursuant to R. 4:33-1. Universal was then permitted to intervene as of right.
On May 5, 1994, plaintiff gave a release to the Melones, based upon a settlement with their insurance carrier wherein plaintiff was paid $35,000, without defendants admitting involvement in the collision. A stipulation of dismissal with prejudice as to the Melones was filed.
In August 1994, Universal moved in the same action to prohibit plaintiffs from pursuing a UM claim against it. Plaintiffs cross-moved to compel arbitration. The Law Division Judge denied Universal's motion to prohibit plaintiff from pursuing a UM claim, and granted plaintiffs' cross-motion to compel arbitration. This appeal followed.
The facts as presented to us show that on June 7, 1991, plaintiff sustained injuries in a three-vehicle accident on Route 4 in Paterson. Plaintiff's motorcycle was struck by a vehicle that was making an illegal U-turn, causing plaintiff to strike a third vehicle. The vehicle that struck plaintiff's motorcycle fled the scene. Witnesses at the scene identified the fleeing ...