On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-3098-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin and Payne.
Plaintiff, Danielle Maleta, was injured in an auto accident with Tahia Fahmy while driving a car owned by Christopher Warren. She settled for $97,500 her claim against Fahmy, who had been issued a policy of automobile insurance with liability limits of $100,000 by Ohio Casualty Insurance Company. Maleta then pursued underinsured motorist (UIM) coverage afforded by a policy issued by defendant New Jersey Manufacturers Insurance Company (NJM) to Warren. NJM denied benefits as the result of a step-down clause contained in its New Jersey UM/UIM endorsement, and after suit was filed, it was granted summary judgment on the basis of that clause.
On appeal from the order of summary judgment, Maleta contests the existence of a step-down provision applicable to UM/UIM coverage, and claims alternatively that the presence of the step-down was not sufficiently disclosed and is thus unenforceable. We disagree and affirm.
At the time of the accident, Maleta was insured as a family member under a policy with $100,000 UIM limits issued to her mother by State Farm Insurance Company. However, we have been informed that the coverage was not available to her because that coverage was equal in amount to that available under Fahmy's Ohio Casualty policy. As a result of the equivalence in coverage, the underinsured motorist provisions of the State Farm policy were not triggered, there being no underinsurance.
Warren's NJM policy afforded UM/UIM coverage in Part C of its coverage provisions. Those provisions defined an underinsured motor vehicle to mean:
2. With respect to an insured who:
a. Is not the named insured under this policy or any other policy; and
b. Is insured as a spouse or family member under one or more other policies providing similar coverage, underinsured motor vehicle means a land motor vehicle . . . to which a liability . . . policy applies at the time of the accident, but its limit for liability is less than the highest applicable limit of liability under insurance providing coverage to that insured as a spouse or family member.
Because the $100,000 UM/UIM coverage available to Maleta as a family member under her mother's State Farm policy was equal to that available pursuant to tortfeasor Fahmy's Ohio Casualty policy, Warren's NJM's UM/UIM coverage, like the coverage purchased by Maleta's mother, was not available to Maleta. We discern no reason why the State Farm and NJM policies should be treated differently in this regard.
If we nonetheless assume the applicability of NJM's UM/UIM coverage provisions in this case, we nonetheless conclude, as did the motion judge, that as the result of the operation of the policy's step-down provisions and the statutory right of set- off, Maleta would still be unable ...