On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6761-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judge Fuentes, Gilroy and Simonelli.
Plaintiff appeals from the March 9, 2009 Law Division order granting summary judgment to intervenor Proformance Insurance Co. (Proformance). We affirm.
The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Defendant Sophie Nave (Nave),*fn1 owned a 1997 Ford Taurus, which her son, plaintiff Sean D. Nave, primarily drove. Proformance insured the car under a policy issued to Nave and her husband. Plaintiff is a named insured on the policy.
The policy provides four types of automobile coverage: (1) personal liability coverage of $250,000/$500,000/$100,000; (2) uninsured/underinsured motorist coverage of $250,000/$500,000/$100,000; (3) medical expense coverage of $10,000; and (4) optional excess liability coverage of $1 million.
The optional excess liability coverage provision states that [Proformance] will pay damages for which a covered person becomes legally liable due to personal injury, bodily injury or property damage up to the limit of liability shown in the coverage summary for "Optional Excess Liability" subject to the minimum retained limit and to the provisions listed in the "Excess Liability Losses We Do Not Cover" section.
Because coverage under this provision depends on the legal liability of a "covered person," the policy's definition of that term is crucial, and is the subject of this dispute.
Contrary to plaintiff's interpretation of the definition of "covered person", section 8 of the policy has two definitions for that term," one for personal liability coverage, medical expense coverage and uninsured/underinsured motorists coverage, and the other for optional excess liability coverage. Section 8 provides, in relevant part as follows:
8. "Covered Person(s): means you and the following residents of your household:
Under "Personal Liability Coverage," "Medical Expense Coverage" and "Uninsured/Underinsured Motorists Coverage," covered person also means:
f. Any other person using or occupying your motor vehicle or boat, if there is expressed written consent by the ...