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Miesowitz v. Selective Insurance Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 2, 2010

RONALD MIESOWITZ, PLAINTIFF-APPELLANT,
v.
SELECTIVE INSURANCE COMPANY, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-738-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 10, 2009

Before Judges Fuentes, Gilroy and Simonelli.

In this declaratory phase of a personal injury cause of action, plaintiff, Ronald Miesowitz, appeals from the order of the Law Division granting defendant Selective Insurance Company's summary judgment motion and dismissing his complaint.

This appeal concerns the applicability of N.J.S.A. 17:28-1.1(f), adopted by the Legislature on September 10, 2007, rendering step-down clauses in automobile insurance policies unenforceable as a matter of public policy. The trial court held that the statute applies prospectively. We affirm.

On June 25, 2002, plaintiff was the passenger in an automobile accident when the car owned and operated by his employer, Andrew B. Rosinski, collided with a car driven by John Daly. Plaintiff did not own a car at the time of the accident. He was, however, included as an insured under his mother's personal automobile policy, issued by Metlife Auto and Home Insurance Company, because he resided with her at the time and was thus a member of her household. The Metlife policy had an underinsured motorist (UIM) coverage limit of $100,000/$300,000. Daly's auto policy was issued by Hartford Insurance Company and had a third-party liability coverage limit of $100,000/$300,000.

The policy covering Rosinski's car was issued by defendant and had an UIM coverage limit of $500,000. Defendant's policy also had a step-down provision that limited UIM coverage for anyone other than the named insured to the amount of UIM coverage available in the claimant's personal auto policy, or in a policy providing UIM coverage to him as a member of the named insured's household.

Plaintiff filed a personal injury action against both Rosinski and Daly. The case was first tried on the issue of liability only, which resulted in a jury verdict finding Daly 80% responsible for the accident and Rosinski 20% responsible. Plaintiff settled his claim against Daly for $100,000, the full amount of the third-party liability coverage provided under his Hartford policy. Plaintiff also settled with Rosinski for $55,000; the settlement was paid by defendant under the policy's third-party liability coverage.

Plaintiff thereafter sought additional compensation under defendant's UIM coverage, asserting that the recovery he obtained from the two tortfeasors had not fully compensated him for his injuries. Defendant was denied coverage based on the policy's step-down clause. The matter came before the trial court on the parties' cross-motions for summary judgment. Against these facts, the court concluded that the prohibition against step-down clauses in N.J.S.A. 17:28-1.1(f) should be given prospective application.

We agree and affirm substantially for the reasons we expressed in Olkusz v. Brown, 401 N.J. Super. 496, 499 (App. Div. 2008). At the time this accident occurred, step-down clauses were permitted and fully enforceable. Pinto v. N.J. Mfrs. Ins. Co., 183 N.J. 405 (2005), superseded by statute, N.J.S.A. 17:28-1.1.

Affirmed.

20100302

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