January 21, 2010
SUSAN OLKUSZ AND RICHARD OLKUSZ, PLAINTIFFS-APPELLANTS,
LAKINGY BROWN AND HACKENSACK UNIVERSITY MEDICAL CENTER, DEFENDANTS, AND ATLANTIC MUTUAL INSURANCE COMPANY, AND FEDERAL INSURANCE COMPANY, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2771-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 4, 2010
Before Judges Rodríguez and Chambers.
In this direct appeal, plaintiffs Susan Olkusz and Richard Olkusz raise the identical issue that we already decided in an interlocutory appeal taken in this case and that resulted in the reported decision of Olkusz v. Brown, 401 N.J. Super. 496 (App. Div. 2008). We adhere to our earlier ruling and affirm.
On April 13, 2004, while riding a shuttle owned and operated by her employer, plaintiff Susan Olkusz was injured when the shuttle came to a sudden stop because of a passing unidentified vehicle. Her employer's business automobile policy with defendant Federal Insurance Company (Federal) provided Uninsured/Underinsured Motorist (UM/UIM) coverage of $1,000,000. The policy, however, contained a step-down provision that limited her recovery to the UM/UIM coverage in her personal automobile policy, which was $100,000. As a result, under the law in effect at the time of the accident, as explained in Pinto v. New Jersey Manufacturers Insurance Co., 183 N.J. 405 (2005), superseded in part by N.J.S.A. 17:28-1.1(f), L. 2007 c. 163, the step-down provision was effective and limited plaintiffs' recovery of UM benefits.
Plaintiffs commenced this action for damages arising from the accident and for declaratory relief, challenging application of the step-down provision. On March 12, 2007, the trial court entered an order declaring that the step-down provision applied. Legislation was thereafter enacted prohibiting step-down provisions in corporate and business motor vehicle liability policies that lowered the UM/UIM coverage for employees to the coverage limits in their personal motor vehicle policies.
N.J.S.A. 17:28-1.1(f). The trial court subsequently vacated its March 12, 2007, order and ruled that this statutory change should be applied retroactively to cases in the pipeline when the statute was passed. It entered an order reforming the Federal policy to eliminate the step-down provision.
On interlocutory appeal, in a reported decision, we reversed this ruling, concluding that the statute applied prospectively only, and hence plaintiffs' claim against Federal was governed by the step-down provision in Federal's policy. Olkusz v. Brown, supra, 401 N.J. Super. at 506. On remand, the trial court issued a final order for a declaratory judgment dated September 8, 2008, reinstating its March 12, 2007, order that enforced the step-down provision. By agreement of the parties, plaintiffs' UM claims were to proceed to the dispute resolution procedures in her employer's and her personal insurance policies. This concluded the proceedings before the trial court.
Plaintiffs now appeal from the September 8, 2008 order, contending once again that the provisions of N.J.S.A. 17:28-1.1(f), enacted after the accident, should be applied retroactively to plaintiffs' UM claim against Federal.
We note that after the reported decision in Olkusz, another panel of this court found that the Legislature intended the statute to be retroactive but declined to give it retroactive effect, concluding that such a result would be manifestly unjust. Hand v. Philadelphia Ins. Co., 408 N.J. Super. 124 (App. Div. 2009). Among a number of arguments, plaintiffs contend that the Hand case was correct in finding that the Legislature intended the statute to be applied retroactively, but maintain that the record does not support a finding of manifest injustice. We do not reach the issue of manifest injustice, because we agree with the reasoning in Olkusz that the statute was not intended to have retroactive effect.
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