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Tornatore v. Selective Ins. Co. of America

June 17, 1997

JAMES TORNATORE, PLAINTIFF-APPELLANT,
v.
SELECTIVE INSURANCE COMPANY OF AMERICA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County.

Approved for Publication June 17, 1997.

Before Judges King, Conley and Loftus. The opinion of the court was delivered by King, P.j.a.d.

The opinion of the court was delivered by: King

The opinion of the court was delivered by

KING, P.J.A.D.

I.

This is an unusual claim asserted by plaintiff James Tornatore under the uninsured motorist endorsement of a standard automobile policy. Uninsured motorist insurance (UM) is compulsory in New Jersey under N.J.S.A. 17:28-1.1, which requires all carriers offering automobile liability insurance to also provide coverage:

for payment of all or part of the sums which the insured . . . shall be legally entitled to recover as damages from the operator or owner of an uninsured motor vehicle or hit and run motor vehicle . . . because of bodily injury, sickness or disease . . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured or hit and run motor vehicle.

[N.J.S.A. 17:28-1.1(a)(emphasis added).

This statute defines the scope of the coverage afforded by defendant Selective Insurance Company of America (Selective), although its policy describes UM coverage in slightly different language. *fn1 Under Selective's UM coverage the issues of legal liability and damages are decided through arbitration. *fn2 In New Jersey UM coverage questions are customarily decided by the court. Ohio Cas. Ins. Co. v. Benson, 87 N.J. 191, 194-99, 432 A.2d 905 (1981); New Jersey Manufacturers Ins. Co. v. Franklin, 160 N.J. Super. 292, 297, 389 A.2d 980 (App. Div. 1978); 2 Alan I. Widiss, Uninsured and Underinsured Motorist Law §§ 24.6, 24.7 (2nd ed. 1992); cf. In re Matter of Arbitration Between Grover, 80 N.J. 221, 230 (1979). This dichotomy of arbitrator-court responsibility also is reflected in Selective's policy language.

The operative facts are undisputed; the legal consequences of these facts on the issues of UM coverage and ultimate liability are sharply disputed. Generally, the factual allegations must be measured against the policy language to determine whether the allegations "fall within the risk insured against." Ohio Cas. Ins. Co. v. Flanagin, 44 N.J. 504, 512, 210 A.2d 221 (1965). Plaintiff describes the historic facts this way in his brief:

On January 20, 1990, the plaintiff, an off-duty Emergency Medical Technician, stopped to render assistance at a multi-vehicle accident scene on Interstate Route 295 and Route 42 in Bellmawr, New Jersey. The accident involved three charter buses and two trucks. It is undisputed that the accident was caused by a phantom automobile that fled the scene. Plaintiff entered one of the buses to render aid to injured passengers when someone on the bus yelled "fire" and panic ensued. Plaintiff was knocked down in the rush to escape the fire and suffered personal injuries.

Selective in its brief agrees that "for purposes of this appeal, the facts as plaintiff has alleged are not disputed." Selective describes the facts as follows:

Plaintiff is an emergency medical technician. On January 20, 1990, while he was off-duty, plaintiff stopped to render assistance at the scene of a multiple-vehicle accident which occurred on I-295 and Route 42 in Bellmawr, New Jersey. The accident involved three charter buses and two trucks. The accident was reportedly initiated by an automobile which went out of control and came to rest in such a way that it blocked a portion of the highway. The vehicle then ...


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