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Galante v. May

November 18, 2003

ANTHONY GALANTE, INDIVIDUALLY, AND AS ADMINISTRATOR AD PROSEQUENDUM AND GENERAL ADMINISTRATOR OF THE ESTATE OF JEANINE M. GALANTE, DECEASED, PLAINTIFF/RESPONDENT,
v.
MICHAEL A. MAY, FEDERICK J. MAY, KEVIN MOORE, SILBINA MAY, AS AN INTERESTED PARTY, ALLSTATE INSURANCE COMPANY, DEFENDANTS, AND LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT/APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-5368-00.

Before Judges Kestin, Cuff and Winkelstein.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 22, 2003

In this insurance coverage case we are asked to decide whether the existence of a survival action and a wrongful death action arising out of the death of a single person each trigger a separate"per person" coverage under a split limit liability policy, with limits of $100,000"per person," and $300,000"per accident." The Law Division judge concluded that because the wrongful death claim and the survivor claim were independent causes of actions, each claim was individually entitled to separate"per person" coverage under the policy. As a consequence, he entered a final judgment in favor of plaintiffs and against defendants for $200,000, representing $100,000 for the wrongful death claim and $100,000 for the survivor claim. We reverse. Based on the language of the policy, we conclude that the maximum coverage for both the wrongful death and survivor claims arising out of the injuries and ultimate death of the decedent is subject to a single $100,000"per person" liability limit.

On January 2, 1999, slightly past midnight, defendant Frederick May was driving a car, owned by defendant Michael May, on Route 4 westbound near the intersection with River Road in Teaneck. May was racing with a car driven by defendant Kevin Moore, traveling at a high rate of speed while weaving in and out of traffic. May's vehicle struck the curb, a traffic sign, a guardrail, and the base of a light pole, and eventually crashed down the side of River Road. May was injured in the accident. Jeanine Galante (decedent), his passenger, was ejected from the car and pronounced dead at the scene.

The car was insured by Liberty Mutual Insurance Company. The policy, in part A -"Liability Coverage - Insuring Agreement," says:"We will pay for damages for'bodily injury'... for which any'insured' becomes legally responsible because of an auto accident." The policy defines"bodily injury" as"bodily harm, sickness or disease, including death that results." The policy also contains a New Jersey Split Liability Limit endorsement which states:

The limit of liability shown in the Schedule or in the Declarations for each person for Bodily Injury Liability is our maximum limit of liability for all damages, including damages for care, loss of services or death, arising out of"bodily injury" sustained by any one person in any one auto accident.

On April 26, 2000, Anthony Galante, individually and as Administrator Ad Prosequendum and General Administrator of the Estate of Jeanine Galante, filed a wrongful death action under the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and a survivor action, under the New Jersey Survivor Act, N.J.S.A. 2A:15-3, against Moore and the Mays. He also filed a declaratory judgment action against Liberty Mutual in which he argued that the wrongful death and survivor actions each triggered a separate"per person" limit of liability of coverage under Liberty Mutual's policy.

With the Mays conceding liability, the parties stipulated that the coverage issue would be resolved by way of motion; the judge would determine the amount of coverage available and enter that amount as a final judgment against the Mays. After hearing arguments on the motion, the Law Division judge entered a final judgment on November 22, 2002, against the May defendants in the amount of $200,000. As the reason for his decision, the judge wrote on the order:"see Vassiliu v. Daimler Chrysler Corp." [356 N.J. Super. 447 (App. Div.), certif. granted, 175 N.J. 547 (2002)].

On appeal, Liberty Mutual argues that under the terms of the policy, wrongful death and survivor claims that arise out of"bodily injury" to one person only trigger one"per person" liability limit. Said another way, it asserts that the"person" in the policy language --"bodily injury sustained by any one person in any one auto accident" -- refers to decedent, not to"persons" such as decedent's survivors or decedent's estate.

Plaintiffs take a broader view of the policy language. They claim the"person" in that phrase refers to each person who is damaged as a result of the accident. In other words, because both decedent's estate and her survivors were damaged by the injuries decedent sustained in the accident, each of these"persons" would be entitled to claim up to $100,000 of"per person" coverage under the policy, subject to the $300,000"per accident" policy limitation.

Actions under both the New Jersey Wrongful Death Act and the New Jersey Survivor Act arise from the death of a party, but"they serve different purposes and are designed to provide a remedy to different parties." Smith v. Whitaker, 160 N.J. 221, 231 (1999). Recovery under the Wrongful Death Act compensates the survivors of the decedent for"the pecuniary losses they suffered because of the tortious conduct of others." Ibid. (quoting Alexander v. Whitman, 114 F.3d 1392, 1398 (3d Cir. 1997)). The Survivor Act preserves for the decedent's estate"any personal cause of action that decedent would have had if he or she had survived." Id. at 233. Thus, the Wrongful Death Act benefits the heirs of the decedent, while the Survivor Act provides a remedy to a decedent's executor or administrator.

Generally,"under [insurance] policies fixing a maximum recovery for bodily injury to one person, the limitation is applicable to all claims of damage flowing from such bodily injury, and it is therefore, immaterial that some part of the damages may be claimed by a person other than the one suffering the bodily injuries." Williams v. State Farm Mut. Auto Ins. Co., 99 N.J. Super. 377, 380 (Law Div. 1968), aff'd, 104 N.J. Super. 403 (App. Div.), aff'd, 54 N.J. 580 (1969). In Williams, the court held"that the husband's claim for loss of services and medical expenses are included within the $25,000 limit of liability; in other words, all damage claims, direct and consequential, resulting from injury to one person are subject to the $25,000 limitation." Id. at 379. The total recovery could not exceed the limits of liability under the contract, no matter how many individuals legally shared in the recovery. Ibid.; see also Harris v. ...


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