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Newman v. Selective Insurance Co.

July 29, 2009

FRANK J. NEWMAN, PLAINTIFF-RESPONDENT,
v.
SELECTIVE INSURANCE COMPANY, FRANK J. HEY AND THE ROHRABUAGH CORPORATION, DEFENDANTS, AND NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2057-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 22, 2008

Before Judges Rodríguez, Lyons and Kestin.

In this insurance coverage appeal, we must decide whether the trial court was correct in awarding Frank J. Newman (Newman) uninsured motorist (UIM) benefits equal to the amount of coverage maintained on his parents' personal automobile insurance policy issued by New Jersey Manufacturers Insurance Company (NJM). In reaching its decision, the trial court found that the step-down provision in NJM's insurance policy was void and that Newman was entitled to recover UIM benefits as a named insured on his parents' policy; he was not limited to the UIM terms of his own personal insurance policy, issued by New Jersey Indemnity Insurance Company (Indemnity). We affirm.

These are the salient facts. On July 25, 2002, while exiting the driver-side of a truck owned by his employer, Canada Dry Bottling Company, Newman was struck by a vehicle owned and operated by an uninsured motorist. The truck was owned and insured under a commercial insurance policy issued by Selective Insurance to Canada Dry. The policy had been procured by Frank J. Hey, a licensed insurance sales agent through the Rohrabuagh Corporation (Rohrabuagh).

At the time, Newman was covered by his own Indemnity policy, which limited his UIM coverage to $15,000 per bodily injury, subject to an aggregate limit of $30,000 per accident for all injuries sustained. At the time of the accident, Newman resided in his parents' home. Thus, he was also covered by his parents' NJM automobile insurance policy, which provided $300,000 in UIM coverage. The NJM policy, however, included a step-down clause:

A. The limit of liability shown in the Declarations for this coverage is our maximum limit of liability for all damages resulting from any one accident.

However, subject to our maximum limit of liability for this coverage:

1. If:

a. an Insured is not the named insured under this policy;

b. That Insured is a named Insured under one or more other policies providing similar coverage; and

c. All such other policies have a limit of liability for similar coverage which is less than the limit of liability for this coverage; then our maximum limit of liability for that Insured, for all damages resulting from any one accident, shall not exceed the highest applicable limit of ...


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