On appeal from Superior Court of New Jersey, Law Division, Camden County, L-4883-97 and L-6531-00.
Before Judges Conley, Newman and Carchman.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal arises from a personal injury automobile complaint, brought by plaintiff Christine R. Vassiliu both as General Administratrix of Hristos Vassiliu's estate and as Administratrix Ad Prosequendum for decedent's heirs, which, after settlement with a products liability defendant, proceeded to a bench trial adjudication of 100% liability on the part of the defendant tortfeasor driver with a total damages and prejudgment interest award of $2,182,121.79, and from plaintiff's subsequent, consolidated, underinsured motorist (UIM) insurance complaint which resulted in a December 18, 2000, order. In part, that order, the subject of this appeal, required appellant Prudential Property & Casualty Insurance Company (Prudential) to pay an additional $15,000 "representing the balance of the full limits of its [split] liability insurance policy" and requiring Prudential and appellant Selective Insurance Company (Selective) each to pay $67,500 from their respective UIM policies. Prudential and Selective appeal from these provisions of the December 18, 2000, order. We affirm in part and reverse in part.
The pertinent facts and procedural history are as follows. On June 24, 1995, Hristos Vassiliu, operating a Plymouth Voyager van, was traveling south on Route 553 in Franklinville, New Jersey. His speed was approximately 50 m.p.h. He had the right of way through an intersection with Route 604, upon which Shaun O'Brien was traveling in her F150 Ford truck. The speed of the O'Brien vehicle, too, was approximately 50 m.p.h. O'Brien's lane of travel was controlled at the intersection by a stop sign and a blinking red light, both of which she failed to comply with. Her vehicle struck the Plymouth Voyager. Vassiliu died within minutes.
In June 1997, decedent's wife, as General Administratrix (for the estate) and as Administratrix Ad Prosequendum (for the heirs of the estate), filed a personal injury complaint, setting forth a survival action on behalf of the estate and a wrongful death action on behalf of decedent's heirs (plaintiff and her child) against O'Brien and the manufacturer and seller of decedent's vehicle. As to the latter claim, plaintiff asserts in her brief that it was premised upon the "crashworthiness" of the vehicle and that:
Although the case was rather clear from the outset against defendant O'Brien, it was extremely complicated and hotly contested against [the manufacturer]. The issues centered around whether [the decedent] was wearing his seatbelt, whether it failed to restrain him and whether it would have made a difference, in any event, to the survivability of this violent 50 mile per hour collision.
While plaintiff's counsel made every effort to successfully present a products liability claim against [the manufacturer], newly discovered evidence shortly before trial made the plaintiff's burden insurmountable. In fact, plaintiff could not have proceeded with any expert testimony against [the manufacturer] on design defect or proximate causation. Simply put, it became absolutely clear that [the decedent] was not wearing his seat belt at the time of the collision and it would not have mattered in any event based on where [his] head struck the interior of the van.
Neither Prudential nor Selective have disputed these asserted weaknesses of plaintiff's liability claim against the manufacturer. However, we observe that the fact that decedent may not have been wearing his seatbelt does not ipso facto remove potential responsibility on the part of the manufacturer, although it would, indeed, make it more difficult to convince a jury of the manufacturer's contributory fault.
Defendant O'Brien was insured under two automobile liability policies. One was with New Hampshire Insurance Company for $35,000 and the other was a $15,000 per person/$30,000 per accident split limit policy with Prudential. The New Hampshire policy and $15,000 of the Prudential policy were deposited with the court. In addition, it is undisputed that the decedent had UIM coverage under two separate policies, one with Prudential and one with Selective. Both policies were split limit with $100,000 per person and $300,000 per accident. Although given notice of the litigation, neither Prudential nor Selective, as UIM carriers, intervened. However, Prudential was a liability carrier for O'Brien, though it contends its involvement in the trial was minimal. *fn1
Following extensive discovery, a jury trial commenced. But after selection of a jury, the manufacturer settled for $215,000 without concession of liability on its part. Neither Prudential, as a UIM carrier, nor Selective were advised of the settlement offer prior to plaintiff's acceptance. Following this settlement, the matter proceeded without a jury. O'Brien, who had filed a bankruptcy petition, *fn2 presented no witnesses and the bulk of plaintiff's evidence concerned the alleged damages. The bench trial judge found that O'Brien was 100% liable. He found no evidence of fault on the part of the manufacturer and dismissed all cross-claims.
The damage award by the bench trial judge reflected a finding of $175,000 for the estate on the survival action and $1,758,516.32 for the decedent's heirs on the wrongful death action. At the time of the entry of the judgment, plaintiff had O'Brien's $35,000 from the New Hampshire liability policy and $15,000 from Prudential's liability policy plus the $215,000 received from the settlement.
As we have said, the Prudential liability policy was a split limit policy with $15,000 per person and $30,000 per accident coverage. In this respect, the ...