On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication April 3, 1997.
Before Judges Shebell and P.g. Levy. 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
This appeal arises out of a dispute between the defendant insurance carriers, appellant, Worldwide Insurance Group ("Worldwide") and respondent, Amgro, Inc. ("Amgro"), over which of the two is obligated to provide plaintiff, Marek Koniecpolski, with underinsured motorist ("UIM") coverage. The Law Division Judge held that only Worldwide was liable to provide UIM coverage. We reverse and hold that Amgro is primarily liable.
On March 31, 1994, plaintiff filed a Complaint in the Law Division against Worldwide and Amgro. He requested the court to declare "which of the two insurance companies should provide primary coverage ...." Defendants filed Answers and asserted cross-claims against the other, each requesting a declaratory judgment that the other was responsible to provide primary coverage to plaintiff. On March 28, 1996, Worldwide moved for summary judgment, and Amgro filed a cross-motion for summary judgment. In a written opinion, dated May 14, 1996, the Judge held that Worldwide alone must provide UIM benefits. The damages issue was submitted to arbitration, and it was determined that plaintiff's gross damages were $35,000. Worldwide appeals.
Plaintiff was involved in an automobile accident while driving his ex-wife's automobile in Florida. His ex-wife had Amgro insurance with UIM coverage $50,000 per person/$100,000 per accident. Plaintiff was neither a named insured nor a resident spouse under the Amgro policy. Plaintiff had UIM coverage with Worldwide in the amount of $250,000 per person/$500,000 per accident. He settled with the tortfeasor's liability insurance carrier for $10,000, the maximum amount available.
The Worldwide and the Amgro policies each contain similar language pertaining to "Other Insurance:"
If there is other applicable similar insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits.
However, any insurance we provide with respect to a vehicle you do not own, or a vehicle owned by you or any family member which is not insured for this coverage under this policy, shall be excess over any other collectible insurance.
It is not disputed that these provisions are applicable to UIM coverage.
In holding that Amgro is not responsible to provide UIM coverage to plaintiff, the Judge held that under Aubrey v. Harleysville Ins. Companies, 140 N.J. 397, 658 A.2d 1246 (1995), "the plaintiff had no 'reasonable expectation' that entitles him to recover under Amgro's policy." The Judge wrote:
the plaintiff is not entitled to fortuitous protection of his ex-wife's policy. In a recent appellate decision, Aubrey was ...