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Macchi v. Connecticut General Insurance Company

August 20, 2002

AVI MACCHI, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
CONNECTICUT GENERAL INSURANCE COMPANY A/K/A CGU/NJ, FORMERLY KNOWN AS GENERAL ACCIDENT INSURANCE, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



Before Judges Petrella, Kestin, and Steinberg. On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County, MER-L-2586-00.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 6, 2002

Plaintiff sustained injuries when she stopped and left the car she was driving to help the driver of another, overturned vehicle. She seeks a declaratory judgment establishing her right to recover under the uninsured (UM) or underinsured (UIM) motorist coverage of an automobile insurance policy issued by defendant to the owner of the car plaintiff was driving, Innovative Packaging Corp. (the Innovative policy). *fn1

The matter came before the trial court on cross-motions for summary judgment argued on October 20, 2000. The motion judge determined as a matter of law that plaintiff had been "occupying" the insured vehicle at the time she was injured and was therefore covered under the Innovative policy. Accordingly, plaintiff's motion for summary judgment was granted and defendant's was denied.

Defendant moved for reconsideration and also raised a new issue regarding the applicability of a "step-down" provision in the Innovative policy. That motion was argued on December 15, 2000. On May 18, 2001, the judge granted the motion for reconsideration and made four rulings articulated in an oral opinion,

ù abjuring the October 20 ruling that plaintiff was "occupying" the insured vehicle;

ù determining that plaintiff was nevertheless entitled to coverage because defendant was estopped, by reason of its own conduct and delay in refusing coverage, from denying plaintiff's entitlement to recover;

ù holding defendant correct in asserting that plaintiff's recovery should be limited to $100,000 under the "step- down" provision of the Innovative policy; and # denying defendant's request to stay the customary UM/UIM arbitration.

Each party appeals from portions of the order. Plaintiff argues that the trial court erred in 1) holding that plaintiff was "stepped-down" to the $100,000 UM/UIM policy limits available under the Macchi policy, thereby denying plaintiff's claims for UM/UIM benefits under the $1,000,000 policy limits available in the Innovative policy; and 2) repudiating its October 20, 2000 ruling that plaintiff was "occupying" the covered automobile within the terms of the Innovative policy for the purpose of her UM/UIM claims against defendant. In addition to meeting plaintiff's arguments, defendant contends it gave plaintiff timely notice that she did not qualify for UM/UIM coverage under the Innovative policy and, therefore, defendant should not be estopped from denying coverage.

No dispute of fact exists regarding the incident that gave rise to the claim. We adopt the motion judge's summary in the October 20, 2000 disposition:

In this action, plaintiff seeks to recover underinsured motorist benefits from the defendant[] arising out of a motor vehicle accident which occurred on February 4th, 1998, on Route 130. The facts surrounding the event are not in dispute. But, for purposes of this motion, the Court notes, briefly, the plaintiff was operating, with permission, a vehicle owned by her estranged husband's business. On the date in question, plaintiff, along with her son, was en route to a video store, to return a video, when she witnessed a one-car accident on the opposite side of the road, which resulted in an overturned vehicle, in which the driver, Morlack, appeared trapped.

Plaintiff stopped her vehicle in the vicinity of the accident, and went to assist the driver. The driver was able to get out of the vehicle. While standing alongside the roadway, near the disabled vehicle, and its occupant, the plaintiff was struck when the vehicle operated by defendant Barbuto collided with the disabled vehicle, which, apparently, was partially in the roadway, causing the disabled vehicle to spin around, and strike the plaintiff.

According to plaintiff, when she stepped out of her own car to assist Morlack, she told her son to call the police and said that she "would be right back." She left her engine running, the lights on, and her purse in the car.

Plaintiff sustained serious injuries, including a collapsed lung, pelvic fracture, concussion, and temporal lobe hemorrhage. She suffered a severe brain injury resulting in multiple residual deficits including amnesia, impaired memory, and poor problem solving. According to plaintiff's doctors, she is permanently disabled and will require ongoing medical, orthopedic and neuropsychological/cognitive therapies and treatment for the remainder of her life. Her medical bills as of September 2000 totaled $45,000.

At the time of the accident, plaintiff and her husband, Michael, were separated and living in different homes in Florence, New Jersey. Although plaintiff claimed she had been attempting a reconciliation at the time, Mr. and Mrs. Macchi never lived together again, and they divorced in June 1999. The vehicle plaintiff was driving at the time she incurred her injuries was a Chevrolet Corvette owned by Michael or his business. That car was considered to be plaintiff's car. She used it on a daily basis, including for commuting to her job in Pennsylvania.

Michael Macchi owned the business in Trenton, Innovative Packaging Corporation ("Innovative"), which was the named insured on the Innovative policy, a "business auto policy." The Corvette was one of four covered vehicles. The policy specifies $1 million in both UM and UIM coverage on the Corvette. The UM and UIM coverage endorsement reads as follows:

A. COVERAGE

1. We will pay all sums the

"insured" is legally entitled to recover as compensatory damages from the owner or driver of an "uninsured motor vehicle" or an "underinsured motor vehicle". The damages must result from "bodily injury" sustained by the "insured," or "property damage" caused by an "accident". The owner's or driver's liability for these damages must result from the ...


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