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Selective Insurance Co. of America v. Capoferri

March 19, 2010

SELECTIVE INSURANCE COMPANY OF AMERICA, PLAINTIFF-RESPONDENT,
v.
DIANNE CAPOFERRI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0444-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 5, 2009

Before Judges Yannotti and Chambers.

Defendant Dianne Capoferri appeals from the order of November 7, 2008, granting summary judgment to plaintiff Selective Insurance Company of America (Selective) and dismissing her counterclaim with prejudice. The order provided that her entitlement to Uninsured Motorist (UM) benefits from Selective's policy is governed by previous litigation between Capoferri and Selective. Capoferri maintains that the earlier adjudication should not govern her claim because the Legislature subsequently enacted a statute changing the law.

We affirm, agreeing with the trial court that under principles of res judicata, Capoferri's entitlement to the benefits is governed by the previous adjudication. Further, we conclude that the statute is not retroactive and would not benefit Capoferri even if the doctrine of res judicata did not apply here.

I.

The relevant facts and procedural history are not in dispute. On March 19, 1999, Capoferri was involved in a motor vehicle accident with an uninsured motorist while operating a school bus for her employer. At the time, she had an automobile policy with The Prudential Commercial Insurance Company of New Jersey (Prudential).*fn1 That policy provided her with UM benefits up to $100,000. Her employer was insured by Selective, and Selective's policy provided UM benefits up to $500,000. However, the Selective policy contained a step-down provision that limited Capoferri's recovery for UM benefits to $100,000, representing the limit for UM benefits in her personal policy. Based on this step-down clause, Selective determined that Capoferri's claim for UM benefits under its policy was limited to $100,000.

On February 11, 2003, Capoferri brought a declaratory judgment action against Selective seeking a declaration that the step-down clause was "null and void and inapplicable," so that she could assert her claim against the full amount of UM benefits in Selective's policy. After a bench trial, the trial court issued a written opinion and order, both dated July 6, 2005, holding that Capoferri's claim for UM benefits under Selective's policy was subject to the step-down provision and limited to $100,000. That decision was affirmed on appeal. Capoferri v. Selective Way Ins. Co., No. A-6536-04 (App. Div. July 14, 2005).

Legislation was enacted, effective September 10, 2007, prohibiting step-down clauses in these circumstances, as follows:

A policy that names a corporate or business entity as a named insured shall be deemed to provide the maximum uninsured or underinsured motorist coverage available under the policy to an individual employed by the corporate or business entity, regardless of whether the individual is an additional named insured under that policy or is a named insured or is covered under any other policy providing uninsured or underinsured motorist coverage. [N.J.S.A. 17:28-1.1(f).]

Capoferri rejected a joint offer by Selective and Prudential to settle her UM claim for $100,000, the maximum she could receive in accordance with the earlier court ruling. She maintained that she was entitled to the benefit of this new legislation and could assert her claim against the $500,000 maximum of UM benefits under Selective's policy.

Selective filed this declaratory judgment action on January 28, 2008, seeking a declaration that Capoferri's UM recovery is limited to $100,000. Capoferri filed a counterclaim seeking the same relief sought in her 2003 complaint, namely a declaration that the step-down provision in Selective's policy is "null and void and inapplicable." The trial court granted Selective's motion for summary judgment and dismissed the counterclaim on two theories, first that further litigation on the applicability of the step-down clause is barred by the doctrine of res judicata, and second, that the statute is not retroactive.

On appeal, Capoferri contends that her claim for the full limits of Selective's UM coverage is not barred by the doctrine of res judicata. She does not address ...


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