On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8054-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, R. B. Coleman and Lyons.
Plaintiff John Malmendier is a tow truck operator whose employer was insured by Insurance Corporation of Hannover (ICH). Plaintiff was injured when he was struck by a car that he was towing, which was insured by AAA Mid-Atlantic Insurance (AAA). AAA settled with plaintiff for near its liability policy limit. Plaintiff, whose injuries exceeded that amount, sought underinsured motorist (UIM) coverage from his employer's insurer, defendant ICH. ICH denied coverage and, in the alternative, sought contribution from AAA. ICH appeals from a January 24, 2007, order granting summary judgment to AAA and the subsequent March 2, 2007, order denying ICH's motion to reconsider that ruling. After consideration of the issues advanced on appeal, we affirm.
On October 30, 2003, Christine Nobile (Nobile) drove her 1998 Volvo to the Pathmark in Edgewater where her vehicle became disabled. She called a towing service, which dispatched plaintiff, a flatbed tow truck driver from Tumino's Towing. Upon arrival, Nobile instructed plaintiff to tow her vehicle to a local gas station. Once at the gas station, plaintiff began to unload Nobile's vehicle from the flatbed into a gas station parking spot. In the process, plaintiff entered the Nobile vehicle to engage its emergency parking brake. He then drove the tow truck forward. He exited the truck and walked to an area between the tow truck and Nobile's vehicle.
While plaintiff was stowing his towing equipment, Nobile entered her vehicle and inadvertently disengaged the emergency parking brake. Because the car was parked on a grade, the car rolled forward. Plaintiff's right leg was pinned between the vehicle and the flatbed tow truck, causing severe injury to his leg.
Plaintiff commenced a suit against Nobile. Her automobile insurance carrier, AAA, settled the bodily injury claim for $98,000, $2000 less than the AAA policy limit of $100,000. After sending ICH a "Longworth letter," to which ICH did not object, plaintiff gave a general release to Nobile and AAA. See Longworth v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988).
Because his damages exceeded that settlement amount, plaintiff filed this suit against his employer's automobile insurance carrier, ICH, claiming UIM benefits. ICH denied an obligation to afford plaintiff UIM coverage and, in the alternative, filed a third-party complaint for contribution against AAA.
On November 30, 2006, following the exchange of discovery, AAA filed a motion for summary judgment seeking dismissal of the third-party complaint on the grounds that it did not owe contribution to ICH because AAA's UIM limits are not greater than its liability limits and because plaintiff was not "occupying" the Nobile vehicle, insured by AAA. ICH filed a cross-motion for summary judgment on January 9, 2007, on the grounds that it is entitled to contribution from AAA because plaintiff was "using" the Nobile vehicle, insured by AAA, and because the Nobile vehicle was underinsured relative to all of the policies "held" by plaintiff.
The trial court granted summary judgment to AAA and denied ICH's cross-motion. In its written opinion, the court found:
ICH cannot seek contribution from AAA for UIM benefits because the motor vehicle tortfeasor's coverage is identical to AAA's UIM benefits. The controlling language in N.J.S.A. 17:28-1.1(e) is clear in defining what an underinsured is. In this case, Ms. Nobile was covered up to $100,000 under the AAA policy and the UIM per person limit for the named insured (Nobile) was $100,000, with a step-down to $15,000 for strangers to the policy. Thus, even if [plaintiff] were considered an "insured" under the AAA policy, the AAA liability limits, $100,000, when credited against the AAA UIM limits, $100,000, amounts to a zero balance in UIM benefits. Consequently, Ms. Nobile's vehicle was not "underinsured" by statutory and insurance policy language and ICH is not entitled to any contribution from AAA.
On February 12, 2007, ICH filed a motion for reconsideration, which was denied by order dated March 2, 2007.
The matter then proceeded to a bench trial on plaintiff's claims against ICH. The matter was tried to conclusion, resulting in a "net judgment" in plaintiff's favor against ICH in the amount of $150,000, entered on May 3, 2007.*fn1
ICH now appeals from the orders granting AAA's summary judgment motion and denying its cross-motion. On appeal, ICH raised the following points for our consideration:
THE MOTION COURT ERRED IN FAILING TO MAKE ANY FINDINGS AS TO THE CONTENTION THAT PLAINTIFF WAS "USING" THE TORTFEASOR'S VEHICLE AND, THEREFORE, WAS AN "INSURED" ENTITLED TO COVERAGE UNDER THE UIM ENDORSEMENT OF THE TORTFEASOR'S INSURANCE POLICY ISSUED BY AAA MID-ATLANTIC INSURANCE COMPANY OF NEW JERSEY.
THE MOTION COURT ERRED BY FAILING TO DETERMINE THAT THE TORTFEASOR'S VEHICLE WAS UNDERINSURED RELATIVE TO ALL OF THE POLICIES OF INSURANCE, COMBINED, "HELD" BY PLAINTIFF.
THE MOTION COURT SHOULD HAVE FOUND THAT THE ICH AND AAA INSURANCE POLICIES ARE CO-PRIMARY, SO THAT THE INSURERS WOULD SHARE IN ANY JUDGMENT OR SETTLEMENT DOLLAR-FOR-DOLLAR, ON A CONCURRENT BASIS.
ICH appeals the court's ruling on a summary judgment motion. In considering a summary judgment motion, the trial court must not "weigh the evidence and determine the truth of the matter"; it must only decide whether there is a genuine issue for trial. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). Further, the trial judge must decide: whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged ...