On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-1723-01.
The opinion of the court was delivered by: Sapp-peterson, P.J. Cv. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fall, Parker and Sapp-Peterson.
Defendant, Agway Insurance Company (AIC), appeals from the trial court's determination that under a policy of insurance issued to its insured, decedent Irving Winner, plaintiffs are entitled to underinsured motorist (UIM) coverage and are also entitled to have their UIM claim proceed through arbitration.*fn1
The dispute stems from a March 8, 2000, motor vehicle accident. Winner was struck by a vehicle driven by Donald Revill as he walked across Woodlane Road in Westampton Township after retrieving mail from a mailbox located across the street from his home. Winner sustained massive injuries and died in the arms of his son, Roger Winner, while being prepared for transfer from an ambulance to a helicopter.
On June 11, 2001, Winner's widow and executrix of his estate, Evelyn Winner, filed a wrongful death and survivor action against Revill. The complaint was later amended on November 7, 2001, to include a Portee v. Jaffee, 84 N.J. 88 (1980), claim on behalf of Roger Winner, who is alleged to have suffered severe emotional distress after observing his father's horrific injuries and witnessing the last moments of his life.
At the time of the accident, Winner owned a farm named Sunnyside Dairies, Inc., which was insured by AIC. The policy included UIM coverage in the amount of $500,000 per incident. The UIM provision of the policy provides:
2. With respect to damages resulting from an "accident" with an "underinsured motor vehicle", we will pay under this coverage only if a. or b. below applies:
a. The limit of any applicable liability bonds or policies have been exhausted by judgments or payments; or
b. A tentative settlement has been made between an "insured" and the insurer of an "underinsured motor vehicle" and we:
(1) Have been given prompt written notice of such tentative settlement; and
(2) Advance payment to the "insured" in an amount equal to the tentative settlement within 30 days ...