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CNA Insurance Company v. Canning

January 19, 2000

CNA INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
v.
WENDY J. CANNING AND ANTHONY CIRRINGIONE, DEFENDANTS-APPELLANTS.
CONTINENTAL INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
JAMES E. HUEBNER, DEFENDANT-RESPONDENT.



Before Judges King and P.G. Levy.

The opinion of the court was delivered by: P.G. Levy, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 1, 1999

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

On January 22, 1995, Anthony Cirringione was injured when the automobile he was driving, owned by Cheryl Kudrna, collided with a vehicle driven by Wendy Canning. He sued Canning and learned during discovery, that her liability insurance policy had a limit of $100,000. Cirringione's own policy had a $50,000 limit for liability coverage (and thus the same amount for underinsured motorist coverage (UIM)). Kudrna's car, considered the host vehicle for Cirringione, had a liability limit of $500,000 insured by CNA Insurance Company.

Cirringione asserted that Canning, the tortfeasor, was underinsured by $400,000, the difference between the host's coverage and the tortfeasor's, and sought UIM coverage from the host's insurer, CNA. CNA denied coverage because Cirringione's personal coverage was less than the tortfeasor's.

On September 20, 1995, James Heubner was operating a car owned by Jane McConnell, and he was injured when that car collided with another operated by Francis Ellis and owned by Susan Little. Heubner had $15,000 coverage on his own policy issued by Prudential Insurance Company. McConnell, owner of the host vehicle, had $300,000 coverage with Continental Insurance Company, and Little, the alleged tortfeasor, had $25,000/$50,000 coverage with Newark Insurance Company. Thus, Heubner asserted that Little was underinsured by $275,000, the difference between the host's coverage and the tortfeasor's, and sought UIM coverage from the host's insurer, Continental. Continental denied coverage because Heubner's liability limit was less than the tortfeasor's.

Each insurance company filed a declaratory judgment action. CNA succeeded on its motion for summary judgment but Continental did not. Cirringione and Continental each appealed and we ordered the appeals consolidated because the issues are practically identical. The CNA policy defines a "covered person" for underinsured motorist coverage purposes as:

1. You or any family member.

2. Any other person occupying your covered automobile.

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.

The Continental policy is quite similar:

1. Covered person means:

c. Any [] person occupying an insured motor vehicle with your consent, except when struck by, a vehicle owned by you or that person which is not ...


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