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Selective Ins. Company of America v. Hojnoski

December 30, 1998


Before Judges Baime, A. A. Rodr¡guez and Kimmelman.

The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.

[9]    Argued: November 5, 1998

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

This appeal requires us to construe the meaning of N.J.A.C. 11:3-2.7, a section of the New Jersey Personal Automobile Insurance Plan (PAIP), which requires insurers doing business in New Jersey to offer uninsured (UM) and underinsured (UIM) coverage up to $500,000. We hold that this regulation must be read as subject to the limitation set by N.J.S.A. 17:28-1.1b, i.e. an insurer cannot offer an amount of UM/UIM coverage which exceeds the bodily injury and property damage limits.

The relevant facts are uncontroverted. On July 2, 1995 defendants Helen and Joseph Hojnoski, New Jersey residents, were injured when the motorcycle they were riding collided head-on with a pick-up truck operated by Richie Richeson. The accident occurred in Gastonia, North Carolina. The Hojnoskis were riding their motorcycle southbound on Interstate 85 when it was hit by Richeson's northbound pick-up truck which crossed the median into their lane of traffic. The Hojnoskis were run over by the truck, sustaining severe personal injuries. They settled with Richeson for $50,000, his policy limits.

At the time of the accident, the Hojnoskis were covered by two insurance policies. One was an automobile insurance policy issued by Selective Insurance Company (Selective) with combined UIM limits of $500,000. The second one was a motorcycle insurance policy issued by Rider Insurance Company (Rider) which provided the following limits for bodily injury: $15,000 per person, $30,000 per accident and $5,000 for property damage. The Hojnoskis made a claim for UIM benefits under the Selective policy. Selective denied their UIM claim and filed a verified complaint against the Hojnoskis and Rider for a declaration of rights. In count one, Selective alleged that the Hojnoskis were not entitled to UIM benefits under the Selective policy. In count two, Selective alleged that Rider violated N.J.S.A. 17:28-1.1b by failing to offer the Hojnoskis UIM benefits up to $500,000.

Selective moved for partial summary judgment on count two. Rider cross-moved for summary judgment. The Judge granted Rider's motion for summary judgment, denied Selective's motion for partial summary judgment, and ordered Selective to pay Rider $1,134 in attorney's fees pursuant to R. 4:42-9(a)(6). The Judge reasoned that this rule authorizes attorney's fees in a UIM indemnification action. Thereafter, Selective settled the UIM claims with the Hojnoskis for $475,000, but preserved its right to appeal.


On appeal, Selective contends that N.J.S.A. 17:28-1.1 requires insurers licensed to do business in New Jersey to offer a motor vehicle insurance policy with UM/UIM limits of up to $250,000 per person/$500,000 per accident or $500,000 combined single limit. In its reply brief, Selective argues for the first time that Rider violated the PAIP, specifically N.J.A.C. 11:3-2.7. This argument is improperly raised. It is well settled that we will not consider an issue not raised below unless it goes to the jurisdiction of the trial court or concerns a matter of substantial public interest. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). It is also improper to raise an issue for the first time in an appellate reply brief. Sulcov v. 2100 Linwood Owners, 303 N.J. Super. 13, 40 (App. Div.) certif. granted, 152 N.J. 10 (1997); Warren Twp. v. Suffness, 225 N.J. Super. 399, 412 (App. Div.), certif. denied, 113 N.J. 640 (1988). Because there is an apparent conflict between the regulation and the statute, we address the merits of the contention.

The PAIP was established pursuant to N.J.S.A. 17:29D-1. It institutes a plan for the administration and apportionment of automobile and motorcycle insurance. N.J.A.C. 11:3-2.1-2.3. Insurers licensed to do business in this State are required to participate in the PAIP, save certain exempted providers. N.J.A.C. 11:3-2.4. In relevant part, N.J.A.C. 11:3-2.7 provides:

(a) PAIP shall provide to qualified applicants . . . uninsured/underinsured motorists and physical damage coverages at the minimum levels required by law, including all options thereto.

(b) PAIP shall provide a variety of increased limits for the above coverages, up to the following:

2. $250,000 per person/$500,000 per accident for uninsured/ underinsured motorists bodily injury liability coverage and $100,000 for uninsured/underinsured motorists property damage liability coverage, or a combined single limit of $500,000 for uninsured/underinsured bodily injury liability and property damage liability coverages.

Selective contends that Rider violated this section by failing to offer the Hojnoskis the opportunity to purchase UIM coverage up to a ...

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