The opinion of the court was delivered by: Menza
Defendant, Keystone Insurance Company, moves for summary judgment in this declaratory judgment action contending that its insurance policy does not provide coverage to plaintiff.
This case of first impression involves the question of whether a next of kin may bring a wrongful death action under the underinsured motorist provision of a decedent's automobile insurance policy.
Plaintiff, Sharon Corcione, is the executrix and next of kin of the decedent Georgette Fish, who died after being struck, while a pedestrian, by an automobile driven by one Jason Auletto. Auletto's automobile liability policy was in the amount of $15,000, a sum which was paid to the Fish estate. At the time of the accident, Fish owned an automobile which was insured with the defendant, Keystone Insurance Co., and contained an underinsured motorist provision which provided coverage in the amount of $250,000. Sharon Corcione, executrix of the Fish estate, has brought a wrongful death action against defendant, Keystone Insurance Co., under the underinsured motorist provision of the policy.
The Keystone policy defines "insured" as follows:
1) You or any "family member".
2) Any other "person occupying your covered auto".
3) Any person for damages that person is entitled to recover because of "bodily injury" to which this coverage applies sustained by a person described in 1 or 2 above.
It defines "bodily injury" as follows:
Bodily injury means bodily harm, sickness or disease, including death that results.
It is defendant's contention that the definition of insured under the policy does not permit a cause of action for wrongful death brought by an insured's next of kin, and that absent such a contractual provision, there is nothing in the law that affords said coverage.
Plaintiff responds that this action is permitted under the provisions of the Keystone policy as well as under the wrongful death statute, N.J.S.A. 2A:31-1 and the uninsured and the underinsured motorists statute, N.J.S.A. 17:28-1.1.
Defendant contends that the definition of an insured contained in the policy permits underinsured claims to be made only by an insured, as defined in sections 1 and 2, for his pain, suffering and disability, or by an administrator or executor of an insured for the pain, suffering and disability the insured suffered prior to death (survival action). Thus, defendant contends that the policy does ...