On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5317-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
Defendant Progressive Northwestern Insurance Company (Progressive) appeals from an order entered by the trial court on August 6, 2009, which required that it provide underinsured motorist (UIM) coverage to plaintiff, Anthony Bianchi. We reverse.
The material facts are not in dispute. Progressive issued a commercial automobile insurance policy to Rental Service, Inc. (Rental Service), which was effective from June 2, 2006 through December 2, 2006. The policy provides, among other things, UIM coverage. The UIM endorsement states that Progressive will pay for damages, other than punitive or exemplary damages, which an insured is legally entitled to recover from the owner or operator of an underinsured auto due to bodily injury:
1. sustained by an insured;
2. caused by an accident; and
3. arising out of the ownership, maintenance, or use of an underinsured auto.
The term "insured" is defined in the endorsement as follows:
a. if the named insured shown on the Declarations Page is a natural person:
(ii) any person occupying your insured auto or a temporary substitute auto; and
(iii) any person who is entitled to recover damages covered by this endorsement because of bodily injury sustained by a person ...