On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication November 26, 1997.
Before Judges Shebell, D'Annunzio and A.a. Rodriguez. 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
Plaintiff, Sandra Steckler, appeals from an order granting summary judgment to defendant, Market Transition Facility (MTF), entered on September 5, 1996 and from the denial of her motion for reconsideration entered on November 13, 1996. We reverse and remand.
Plaintiff instituted suit in the Law Division on December 9, 1994 seeking to compel MTF to participate in underinsured motorists (UIM) arbitration. She alleged that she did not own an automobile or live in a household in which anyone owned an automobile and that MTF provided automobile insurance coverage, including UIM coverage, to Joel Felsher, owner of a Ford Taurus automobile registered in New Jersey.
Plaintiff alleged that on August 30, 1991, while in Massachusetts, she was a passenger in the Felsher automobile when she suffered personal injuries as a result of an accident caused by the sole negligence of the driver of another vehicle. The culpable vehicle had automobile liability coverage only in the minimum amount permitted in Massachusetts. Therefore, she settled her claim against the lone tortfeasor for the maximum available amount of $10,000, although allegedly reasonable compensation for her injuries well exceeds that amount.
Plaintiff demanded that defendant either pay her UIM claim or submit it to arbitration, but at all times, defendant has refused plaintiff's demand. Plaintiff filed this action to compel defendant to submit the claim to arbitration, pay counsel fees and costs of suit, or to obtain such other relief as may be appropriate under the circumstances.
Inexplicably, neither party has supplied this court with a copy of the answer filed on behalf of MTF. Defendant's memorandum of law accompanying its motion for summary judgment seeks dismissal because on April 21, 1992, plaintiff settled her claim with the tortfeasor and executed a release in his favor. Defendant's memorandum states that "after settling that claim, plaintiff then notified the MTF that she was asserting a UIM claim, by letter of May 8, 1992 (Exhibit D). *fn1 " The MTF failed to respond, so plaintiff's attorney filed the within lawsuit to compel the MTF to name an arbitrator and arbitrate the UIM claim.
The memorandum also states, "We do not admit that the MTF owes coverage." It then continues:
Since we do not admit coverage, we cannot provide the Court with a copy of the insurance policy between the insured and the MTF. However, we can direct the Court to the policy language that would be applicable if there was a policy in effect, the standard MTF policy language that appears in Craig and Pomeroy, New Jersey Auto Insurance Law at Appendix C-1, pages 579 to 608 (Exhibit E). The standard policy language provides that: "If we make a payment under this policy and the person to whom or for whom payment was made has the right to recover damages from another, we shall be subrogated to that right. That person shall do: (1) whatever is necessary to enable us to exercise our right; and (2) nothing after loss to prejudice them." (Exhibit E, at page 592). *fn2
The September 5, 1996 order granting summary judgment to defendant does not reveal whether oral argument was presented or whether the court placed its opinion on the record. We have been supplied only with a transcript of the argument and decision relating to plaintiff's motion for reconsideration. On October 11, 1996, the Judge, after hearing oral argument on that motion, reserved decision. On October 21, 1996, he rendered his written decision:
The following is my determination in the matter of Steckler vs. Market Transition Facility of New Jersey for ...