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Severino v. Malachi

August 12, 2009

LESLIE LAUREN SEVERINO, ADMINISTRATIX AD PROSEQUENDUM OF THE ESTATE OF JULIO CESAR SEVERINO, DECEASED, LESLIE LAUREN SEVERINO, BIENVENIDA DE LEON, AND JUAN E. SEVERINO, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
JERMAINE MALACHI, KIMBERLY KILROY, NJM GROUP, NEW JERSEY MANUFACTURERS INSURANCE COMPANY, NEW JERSEY CASUALTY INSURANCE COMPANY, AND NEW JERSEY INDEMNITY INSURANCE COMPANY, DEFENDANTS, AND NEW JERSEY RE-INSURANCE COMPANY, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.
NAYDA REBOLLO, ADMINISTRATIX AD PROSEQUENDUM OF THE ESTATE OF YAVALIER RODRIGUEZ, DECEASED, NAYDA REBOLLO, AND PEDRO E. RODRIGUEZ, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
JERMAINE MALACHI, KIMBERLY KILROY, NJM GROUP, NEW JERSEY MANUFACTURERS INSURANCE COMPANY, NEW JERSEY CASUALTY INSURANCE COMPANY, AND NEW JERSEY INDEMNITY INSURANCE COMPANY, DEFENDANTS, AND NEW JERSEY RE-INSURANCE COMPANY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-586-05 and L-1326-05.

The opinion of the court was delivered by: Yannotti, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 10, 2009

Before Judges Parker, Yannotti and LeWinn.

On November 1, 2003, Julio Cesar Severino (Severino) and Yavalier Rodriguez (Rodriguez) drove to Jersey City in a 1980 Toyota owned by Severino's fiancé, Viviana Muniz (Muniz). Severino and Rodriguez exited the vehicle and were struck by an automobile. Severino and Rodriguez died as a result of injuries sustained in the accident.

Plaintiffs filed these actions in the trial court and asserted various claims, including claims against defendants NJM Group (NJMG), New Jersey Manufacturers Insurance Company (NJM), New Jersey Re-Insurance Company (NJR), New Jersey Casualty Insurance Company (NJCI) and New Jersey Indemnity Insurance Company (NJI) for underinsured motorist (UIM) and personal injury protection (PIP) benefits under an insurance policy covering the Muniz vehicle.*fn1 Plaintiffs thereafter consented to the dismissal of their claims against NJMG, NJM, NJCI and NJI and pursued their claims for UIM and PIP benefits against NJR, the entity that issued the policy.

The trial court found that Severino was not entitled to coverage under the Muniz policy as a "named insured," but that plaintiffs are nevertheless entitled to UIM and PIP benefits because, at the time of the accident, Severino and Rodriguez were "occupying" the Muniz vehicle. NJR appeals and the Severino plaintiffs cross-appeal from the orders memorializing these determinations. For the reasons that follow, we conclude that plaintiffs are not entitled to UIM or PIP benefits under the Muniz policy because Severino was not a "named insured" under the policy and because Severino and Rodriguez were not "occupying" the covered vehicle at the time of the accident.

I.

The facts regarding the accident are essentially undisputed. Louis Soba (Soba) was with Severino and Rodriguez in the Muniz automobile prior to the accident. At his deposition, Soba testified that, during the evening before the accident, he attended a party at a club in New York City. Severino and Rodriguez met Soba at the club at around 11:30 p.m. They remained there about four hours.

Severino, Rodriguez and Soba left the club. They stopped briefly at a grocery store in New York City to get something to eat. They got into Muniz's automobile to return to Jersey City.

Severino was driving. Rodriguez was in the front passenger seat and Soba was in the rear.

Soba said that Severino was not intoxicated and that he did not have any problem operating the car during their return to Jersey City. They planned to stop at Severino's apartment on Palisade Avenue, where Severino and Muniz were going to reside. Severino had just purchased new furniture and he wanted Soba and Rodriguez to see the apartment and the new furniture. Thereafter, Severino intended to drive Soba and Rodriguez to their homes in Jersey City.

Severino parked the car on the northbound side of Palisade Avenue and turned off the engine. Severino got out of the car on the driver side and Rodriguez exited on the front passenger side. They closed the doors of the car. Soba leaned over to the floor to pick up his sandwich and, a few seconds later, heard a "boom." An automobile had struck the car. The driver of that automobile was Jermaine J. Malachi (Malachi). He was driving a vehicle owned by Kimberly Kilroy (Kilroy).

Soba testified that Severino and Rodriguez had just gotten out of the car and "[e]verything happened within seconds." He did not realize that Severino and Rodriguez had been hit until he exited the car. Soba observed their bodies lying about fifty feet from the car. He also observed that Malachi had struck several other vehicles parked on Palisade Avenue.

Soba initially estimated that about fifteen or twenty seconds elapsed from the time Severino and Rodriguez exited the car until they were struck. Later in his deposition, however, Soba testified that about eight seconds had elapsed. On cross-examination, Soba stated that Severino and Rodriguez were crossing the street when they were hit. He said that Severino and Rodriguez were probably several feet away from the car when they were struck.

The police investigated the accident and filed a report that includes measurements taken at the scene. The report identifies a point of impact. The officer who took the measurements was not deposed; therefore, the record does not reveal the basis for his findings regarding the point of impact.

The insurance policy covering Kilroy's vehicle only provided coverage in the amount of $25,000 per person and $50,000 per occurrence. Plaintiffs sought UIM coverage under the Muniz policy, which provides that NJR will pay compensatory damages that an "insured" is entitled to recover from the owner or operator of an underinsured vehicle as a result of bodily injury sustained in an accident. As it pertains to underinsured benefits, the policy defines "insured" as

1. You or any family member.

2. Any other person occupying your covered auto.

3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in "1." or "2." above.

The plaintiffs in the Severino case filed a motion for summary judgment, seeking a declaration that Severino was entitled to UIM benefits under the Muniz policy. The plaintiffs in the Rodriguez case joined in the motion. NJR opposed the motion and filed a cross-motion seeking a determination that Severino and Rodriguez were not entitled to UIM coverage because they were not "occupying" the Muniz vehicle when they sustained their fatal injuries.

The trial court considered the motions on May 26, 2006, and placed its decision on the record on that date. The court found that plaintiffs had established a "sufficient and substantial nexus between the insured vehicle and the injuries that [Severino and Rodriguez] sustained so as to compel UIM coverage."

The court accordingly entered an order on June 5, 2006, granting plaintiffs' motion for UIM coverage and denying NJR's cross-motion for summary judgment on plaintiffs' UIM claims. NJR thereafter filed a motion for reconsideration, which the trial court denied by order entered on September 26, 2006. NJR filed a motion for leave to appeal, seeking review of the trial court's interlocutory decision. We denied that motion on September 25, 2006.

Thereafter, plaintiffs settled their claims with Malachi and Kilroy for the liability limits under the policy covering the Kilroy vehicle. The plaintiffs in the Severino action then filed a motion seeking a determination that Severino was entitled to coverage under the Muniz policy on an alternative basis, specifically that Severino was a "named insured" under the Muniz policy. The plaintiffs ...


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