On appeal from Superior Court, Law Division, Morris County.
Approved for Publication September 26, 1996. As Corrected November 26, 1996.
Before Judges Petrella, Landau and Kimmelman. The opinion of the court was delivered by Landau, J.A.D.
The opinion of the court was delivered by: Landau
The opinion of the court was delivered by LANDAU, J.A.D.
This is an appeal from an order dismissing plaintiff's complaint, which sought to compel defendant to submit to arbitration under N.J.S.A. 17:28-1.1 respecting uninsured motorist ("UM") coverage for one Peter Christo. Christo suffered injuries in a 1990 collision with an unidentified motor vehicle while driving a car owned by his employer and insured by MCA Insurance Company.
Plaintiff, Material Damage Adjustment Corporation (MDAC), is a servicing carrier for the New Jersey Automobile Full Insurance Underwriting Association (JUA), which insured Christo's personal automobile. The employer's MCA policy provided $100,000 of UM coverage. Christo's JUA policy also provided UM coverage.
N.J.S.A. 17:28-1.1a(2) provides in pertinent part:
All motor vehicle liability policies shall ... include coverage for the payment of all or part of the sums which the person insured thereunder shall be legally entitled to recover as damages from owners or operators of uninsured motor vehicles...
When the present complaint was filed, Christo was about to proceed in an uninsured motorist arbitration against JUA's servicing carrier, MDAC. His eligibility for UM coverage because of the unidentified status of the other vehicle appears to be undisputed. Christo had first filed his claim for UM benefits with MCA, which went into liquidation in 1993. By reason of the MCA insolvency, the New Jersey Property-Liability Insurance Guaranty Association (PLIGA) became responsible to honor a "covered claim," made under policies issued by MCA. N.J.S.A. 17:30A-5d, 30A-8a(1); Blew v. Brind Leasing, 216 N.J. Super. 359, 361, 523 A.2d 1076 (App. Div. 1987).
When PLIGA received Christo's claim, it responded with a letter advising that the claim would be "deferred" because it appeared that he could recover under his own automobile liability policy. Christo was advised to submit the claim to his carrier. According to MDAC, that claim was submitted, and "honored" in the sense that it is "presently being defended in the forum of UM arbitration." *fn1
This action was commenced by MDAC on verified complaint and order to show cause to require that PLIGA "honor its coverage obligation" under the MCA policy by participating in the pending UM arbitration and contributing to Christo's recovery on a pro-rata basis.
On June 23, 1995, the Law Division Judge dismissed the complaint, ruling that MDAC's demand that PLIGA participate in the Christo UM arbitration was prohibited by the language of N.J.S.A. 17:30A-5d. That section excludes from treatment as a "covered claim" under the New Jersey Property-Liability Insurance Guaranty Association Act (the Act) "any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise... (emphasis added)." The Judge concluded that the MDAC claim "is clearly otherwise, otherwise including everything..." and that PLIGA "is not responsible to join in an arbitration where there is a responsible solvent insurer liable for the claim."
MDAC, as JUA's servicing carrier, appeals from this dismissal. We reverse, as this suit to compel PLIGA to participate in arbitration is not an attempt to recover an amount as a subrogation recovery or otherwise, but concerns resolution of a coverage question not barred by ...