On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-13024-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
Defendant, State Farm Indemnity Company (State Farm), appeals from the denial of its motion for summary judgment in relation to a motor vehicle accident involving plaintiff, Kim Amabile. On March 13, 2001, plaintiff was a passenger in a vehicle driven by her boyfriend, now husband, Howard Dean, when it was rear-ended by a vehicle driven by an underinsured motorist (UIM). She settled with the tortfeasor, then sued Dean's insurance carrier, State Farm, for UIM benefits.
State Farm moved for summary judgment on the basis that plaintiff was not an "insured" for the purpose of UIM coverage under the policy issued to Dean. His policy expressly limits UIM benefits to Dean, his spouse, and resident relatives, and there is no dispute that plaintiff did not come within any of those descriptions; however, the motion judge concluded that there was a genuine issue of fact as to Dean's expectation when he purchased the policy. Since he purchased uninsured motorist (UM) coverage and UIM at the same time and as a package, Dean claims he had a subjective belief that UIM would cover persons who might be injured as passengers in his vehicle. The motion judge denied defendant's summary judgment motion on April 28, 2006, and denied its motion for reconsideration on June 28, 2006.
On appeal, defendant contends that the court erred in denying its motion for reconsideration and summary judgment because plaintiff was not entitled to UIM benefits under Dean's insurance policy. We agree.
Disputes involving insurance contracts are resolved by looking to the language of the policy. Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 499-500 (1987). The express language of Dean's policy states that, by definition, an insured includes: "a. you; b. your spouse; c. your relatives who are neither listed as named insured on any other personal automobile policy nor a spouse of such named insured; and d. any person entitled to recover damages because of bodily injury to an insured under a. through c. above."
According to her deposition testimony, at the time of the accident, plaintiff was living with her sister and later moved in with Dean. Thus, she was not a resident of his household, nor a relative, and she did not come within the policy definition of an insured. If the expressed language of an insurance policy is clear and unambiguous, the court is bound to enforce the policy as it is written. Royal Ins. Co. v. Rutgers Cas. Ins. Co., 271 N.J. Super. 409, 416 (App. Div. 1994). The language of Dean's policy is unambiguous, and should be enforced to limit those covered by his UIM. UIM is optional, not mandatory, coverage, and State Farm is permitted to limit coverage. See N.J.S.A. 17:28-1.1(b); Royal Ins. Co., supra, 271 N.J. Super. at 419 ("It is fundamental that in the absence of a statutory prohibition to the contrary, an insurance company has a right to impose whatever conditions it desires prior to assuming its obligations.").
Furthermore, plaintiff had no reasonable expectation of UIM coverage since she cannot be expected to have seen the policy before the accident. If she had seen the policy, she would have seen that she was clearly excluded from UIM coverage. It should be noted that plaintiff is not left without remedy; she has already collected from the tortfeasor, and as a passenger in Dean's car, she had a right to sue those responsible for her injuries, including Dean, subject, of course, to the limitations imposed by the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1.1 to -35. See, e.g., Serrano v. Serrano, 183 N.J. 508 (2005), where the injured passenger sued his wife, who was driving their minivan, and the driver and owner of the car with which the minivan collided.
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