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Spagnuolo v. Fireman's Fund Insurance Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 5, 2008

DONNA SPAGNUOLO, PLAINTIFF-APPELLANT,
v.
FIREMAN'S FUND INSURANCE COMPANY, SUCCESSOR IN INTEREST, TO PARKWAY INSURANCE, A FICTITIOUS ENTITY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1384-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 19, 2008

Before Judges Stern, A. A. Rodríguez and Collester.

Plaintiff appeals from an order of September 7, 2007, dismissing her complaint with prejudice.*fn1 The facts are undisputed. Plaintiff was insured under an automobile liability policy issued by defendant with underinsured motorist (UIM) coverage in the amount of $300,000.

On March 22, 2003, she was struck by a vehicle operated by Michael Pinto which had liability limits in the amount of $300,000. However, because it was a commercial policy, plaintiff's carrier recovered $88,882 in PIP benefits from Pinto's carrier, and plaintiff claims entitlement to those funds as part of her UIM coverage. Plaintiff argues that she "is entitled to proceed by way of her underinsurance claim insofar as she has met her threshold requirements regarding the comparison of the insurance policies." This is because "since the tortfeasor's policy is a commercial policy without PIP coverage, it is thus rendered 'inadequate' when compar[ed] . . . to plaintiff's $300,000 UIM coverage." The dispute is over the $88,882 which plaintiff seeks as UIM benefits after plaintiff made a Longworth*fn2 settlement with Pinto's carrier for the policy limits following deduction of the PIP benefits recovered by plaintiff's carrier, FFIC.

Because plaintiff's and Pinto's policy limits were the same, plaintiff is not entitled to UIM benefits. The PIP reimbursement does not reduce Pinto's policy liability limits or make plaintiff's UIM limits greater than his. See David v. Government Employees Ins. Co., 360 N.J. Super. 127, 143-44, 150- 51 (App. Div.), certif. denied, 178 N.J. 251 (2003), to which we adhere. Accordingly, we affirm the judgment.


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