On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-4913-02.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2005
Before Judges Lintner, Parrillo and Holston.
Defendant, Bernard Jeffers, a Pennsylvania resident, appeals from the grant of summary judgment in favor of plaintiff, National Union Fire Insurance Company of Pittsburgh (National Union), declaring that the commercial auto policy issued by National Union to defendant's employer in New Jersey did not provide additional underinsurance (UIM) coverage over and above that which was provided by defendant's personal policy issued in Pennsylvania. We reverse because the UIM coverage provided to defendant by his Pennsylvania policy was not "similar" to that provided by the National Union policy and thus National Union's step-down provision limiting coverage was not triggered.
The facts are undisputed. Defendant was operating a vehicle owned by his employer, Schiavone Buckley Cornell, when he was involved in an accident on the Ben Franklin Bridge. Defendant filed a Law Division complaint for personal injuries against the operators of the other vehicles, one was uninsured and the other maintained a liability policy issued by GSA Insurance Company (GSA) with limits of $100,000 per person and $300,000 per accident. Eventually, GSA deposited its $100,000 policy limits with the court.
At the time of the accident, defendant was covered for UIM benefits by two separate insurance policies. He was the named insured under a Pennsylvania policy issued by Harbor Specialty Insurance Company (Harbor Specialty) covering his own vehicle with UM and UIM limits of $15,000/$30,000. Additionally, although not a named insured, he was covered for New Jersey UIM benefits under the National Union policy as a person "'occupying' a covered 'auto.'" The National Union policy had UM and UIM limits of $1,000,000,000 and contained the following "step-down" provision.
1. Regardless of the number of covered "autos", "insureds", premiums paid, claims made or vehicles involved in the "accident", the Limit of Insurance shown in the Schedule or Declarations for Uninsured Motorists Coverage and Underinsured Motorists Coverage is the most we will pay for all damages resulting from any one "accident" with an "uninsured motor vehicle" or an "underinsured motor vehicle".
a. However, subject to our maximum Limit of Insurance for this coverage, if:
(1) An "insured" is not the individual named insured under this policy; [and]
(2) That "insured" is an individual named insured under one or more other policies providing similar coverage; and
(3) All such other policies have a limit of insurance for similar coverage which is less than the Limit of Insurance for this coverage; then the most we will pay for all damages resulting from any one "accident" with an "uninsured motor vehicle" or an "underinsured motor vehicle" shall not exceed the highest applicable limit of insurance under any coverage form or ...