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Lee v. New Jersey Skylands Insurance Co.

May 6, 2008

CHERYL LEE, PLAINTIFF-APPELLANT,
v.
NEW JERSEY SKYLANDS INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Atlantic County, L-4808-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 25, 2008

Before Judges C.S. Fisher and C.L. Miniman.

Plaintiff Cheryl Lee appeals from a partial summary judgment in favor of defendant New Jersey Skylands Insurance Company on the first count of her complaint seeking uninsured motorist benefits and dismissing the balance of her complaint as settled. We affirm.

The facts in the record before us are limited,*fn1 as is the procedural history. Plaintiff, who was insured by defendant with UIM coverage of $100,000, was involved in a motor vehicle accident on August 16, 2003. Michael Curron, the driver of the other vehicle was insured by Westfield Insurance Company with a policy limit of $50,000. Plaintiff's attorney notified defendant on December 15, 2004, that she would be making a UIM claim. About ten weeks later, without any further notice to defendant, plaintiff settled her claim against Curron for $45,000.

Two weeks thereafter plaintiff advised defendant that she had settled with Curron and made a demand for an amount in excess of the UIM coverage. Defendant denied coverage on March 31, 2005, advising that "you did not properly notify us of your intention to accept the underlying limits and as such you have now prejudiced our right to subrogation under Longworth [v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988)]."

Plaintiff filed a suit seeking, among other relief, to compel payment of UIM benefits. Defendant sought a summary judgment dismissing the claim for UIM benefits under Longworth.

Plaintiff argued that her initial letter notifying defendant of her intent to make a claim satisfied the Longworth requirements but the motion judge determined that the initial letter was insufficient because Longworth required that a UIM carrier be given notice of a proposed settlement and an opportunity to pay the UIM benefits and take an assignment of the insured's right of action against the tortfeasor. The judge filed an order on August 21, 2006, dismissing the UIM claim. The balance of the action settled on September 25, 2006. This appeal followed.

On appeal, plaintiff contends that the motion judge erred when he granted defendant's motion for summary judgment on the first count because plaintiff failed to comply with Longworth.

Plaintiff also advances certain arguments in support of her case that were not presented to the motion judge.

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."

[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]

The additional arguments advanced by the plaintiff do not concern the jurisdiction of the court or any matter of great public interest. As a consequence, we confine our consideration of plaintiff's appeal to the issue of whether she complied with the Longworth requirements of notice to ...


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