On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5416-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Messano.
Plaintiff Deborah Billotti appeals from the motion judge's order of January 11, 2007, that dismissed her complaint against defendant USAA Casualty Insurance Company. In that complaint, plaintiff alleged that defendant had issued an automobile insurance policy to her husband Joseph that was in effect on August 10, 2003, the day she was involved in a motor vehicle accident.*fn1 She was significantly injured in the accident and the tortfeasor's insurer, Allstate, ultimately tendered the limit of its policy, $100,000. Plaintiff sought to compel arbitration under the underinsured motorist coverage (UIM) provided by defendant's policy. She also sought reformation of the insurance contract increasing the UIM policy limits from $15,000 per accident and $30,000 per claim, as set forth on the policy's declaration page, to a single limit of $300,000 per claim. She contended that because defendant could not produce a coverage selection form (CSF) executed by Joseph at the time of the policy's issuance, the UIM coverage limit should be the same as the policy's limit for bodily injury claims.
After defendant filed its answer to the complaint and after discovery, both parties moved for summary judgment. When both motions were denied, plaintiff and defendant moved for reconsideration.*fn2 Judge Jamie S. Perri once again denied both requests. She found that defendant was not entitled to immunity under N.J.S.A. 17:28-1.9a because it could not produce a signed CSF. Although defendant had produced a number of renewal forms sent to Joseph that clearly indicated the UIM policy limit was $15,000/$30,000, the judge believed summary judgment was inappropriate, noting that although "it [was] undisputed that USAA issued an initial policy with UIM limits of $15,000/$30,000 and that there was never [any] requested  change in the limits . . . issues of fact existed regarding [Joseph's] reasonable expectations of the coverage . . . under the policy and the reasonable[ness] of his subsequent actions upon receipt of the policy and the renewal offers." To resolve these issues of fact, the judge ordered a plenary hearing.
During the hearing held on November 27, 2006, defendant introduced numerous policy documents into evidence and several of its employees testified via videoconference from its Texas office. Plaintiff and Joseph also testified. After considering the evidence and the arguments of counsel, Judge Perri issued a comprehensive written decision dated January 8, 2007.
We first summarize the judge's factual findings. Plaintiff first became aware of the policy's UIM limits when she and Joseph "'met with an attorney a few months after the accident.'" She claimed Joseph was quite upset because "'when he first bought the policy, he said he wanted the maximum amount of coverage in case we got sued or if we were hit by a person with no insurance.'"
Joseph first purchased a policy through defendant in 1992 and plaintiff was added as an insured when they married in 2002. While he had no specific recollection of the event, Joseph testified in his deposition that he told defendant's agent that he wanted a "'good policy'" with coverage limits of $300,000 "'so [he would be] covered.'" However, Judge Perri noted that Joseph's recollection was "remarkably more detailed" at the plenary hearing. He now claimed that he had specifically told defendant's representative that "he wanted '$300/$500 so that I would be covered . . . in case . . . I was sued or in case I was hurt by an uninsured drunk driver.'" Judge Perri found this testimony "strains belief," but nevertheless found plaintiff "is bound by [Joseph's] specific request to USAA to provide him with $300,000 in uninsured motorist coverage."
Joseph could not recall receiving the original policy materials, though he did remember receiving packages of information from defendant from time to time thereafter. His review of this information was limited to making sure the proper vehicles were covered; additionally, Joseph knew how to contact defendant and did so to make changes to the policy such as adding plaintiff as an insured and adding and dropping vehicles.
Defendant could not produce any of the original policy documents and only produced policy information from 1997 forward. Nevertheless, Judge Perri concluded that the original policy contained $15,000/$30,000 UIM limits because Joseph acknowledged never making any change to the coverage limits after he first purchased the policy in 1992.
Two of defendant's employees testified as to its usual business practices regarding data entry and records retention. Judge Perri found that based upon that testimony, "USAA complied with its usual business practices and in fact provided [Joseph] with a Buyer's Guide and [CSF] at the time it issued the original policy in 1992." She also found that given Joseph's "admitted practice of failing to review documents received from USAA in detail . . ., and his practice of failing to return signed [CSF] forms . . . with each renewal, the reasonable inference to be drawn is that [Joseph] would not have reviewed the Buyer's Guide when it was received."
Judge Perri then considered the legal arguments raised by plaintiff. Citing our decision in Martinez v. John Hancock Mut. Life Ins. Co., 145 N.J. Super. 301 (App. Div. 1976), certif. denied, 74 N.J. 253 (1977), the judge held that Joseph was "under a duty to examine his insurance policies" and that he was "required to notify the company of [any] inconsistency" between its terms and those he desired. She further concluded that the "average reader" would have noticed from a simple review of the declarations page that the UIM policy limits were not $300,000 as Joseph said he requested. She concluded that the continued failure by Joseph over the ensuing years of the policy's existence to review defendant's correspondences, coupled with the lack of any "fraud or unconscionable conduct, precludes the plaintiff from seeking the equitable relief of reformation . . . ."
The judge also denied plaintiff's claim that defendant should be equitably estopped from denying coverage at the $300,000 limit. Once again citing Martinez, the judge reasoned that plaintiff had failed to demonstrate that defendant had misrepresented "the fact or extent of coverage," and also failed to demonstrate Joseph's reasonable and detrimental reliance upon any misrepresentation. ...