On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket Nos. L-144-09 and L-328-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued: April 8, 2010
Before Judges Axelrad and Fisher.
Plaintiff James Watson*fn1 appeals from an order of the Law Division granting the motion of defendant, High Point Insurance Company (High Point), dismissing his complaint with prejudice for failure to state a claim pursuant to Rule 4:6-2(e). We affirm.
We briefly recite the procedural history and undisputed facts. On April 5, 2008, plaintiff was a passenger in a vehicle operated by defendant, Thomas Schoenborn. At that time, both plaintiff and Schoenborn were insured by High Point; plaintiff's underinsured motorist (UIM) coverage limit was $100,000/$300,000, and Schoenborn's liability coverage limit was $300,000/$300,000. Schoenborn disregarded a stop sign and violently collided with a vehicle operated by Timothy Mead. As a result of the accident, Mead died and plaintiff suffered personal injuries.
Mead's Estate filed wrongful death and survival actions against Schoenborn for compensatory damages. Plaintiff and his wife also instituted a personal injury action against Schoenborn, and in the fourth count of his complaint pled a claim against High Point for UIM benefits. Schoenborn filed an answer to the complaint. High Point filed a motion to dismiss plaintiff's claim against it for failure to state a claim arguing that because Schoenborn had a $300,000 per person liability limit, and that amount was greater than plaintiff's per person UIM limit of $l00,000, Schoenborn was not an underinsured motorist at the time of the accident as defined in N.J.S.A. l7:28-1.1e. In opposition, plaintiff urged that because of the multiple claimants, the tortfeasor's vehicle was underinsured because the amount of the tortfeasor's coverage actually made "available" to him under the statute was less than the amount of plaintiff's UIM coverage. Following oral argument on May l, 2009, the court granted High Point's motion, memorialized in an order.
Schoenborn then filed a motion to deposit his $300,000 policy limits into court that was granted by order of May 28, 2009. Following a hearing, the court entered an order on August 28, 2009, distributing the $300,000 deposited liability insurance funds between Mead's Estate and plaintiff by allocating $275,000 to Mead's Estate and $25,000 to plaintiff. This appeal ensued.
On appeal, plaintiff argues:
I. The trial court misconstrued the word "available" in N.J.S.A. l7:28-l.le(l), a statute that is ambiguous, when it failed to find the vehicle operated by the tortfeasor to be "underinsured" as to the plaintiff-victim in a multiple victim accident when the single limit liability coverage of the tortfeasor was significantly reduced by the payment of the claim of another accident victim's estate, thereby making the amount of the insurance "available" for the actual payment of the plaintiff-victim's claim lower than his personal underinsured motorist coverage.
II. The trial court disregarded the legislative intent of N.J.S.A. l7:28-1.1e(l) by failing to apply the doctrine of the reasonable expectations of the plaintiffs-victims by disallowing them access to their underinsured motorist coverage with the defendant for the unpaid balance of plaintiffs' claims due to the tortfeasor's available liability limit becoming exhausted by a pro rata distribution between the multiple victims.
We find plaintiff's arguments unpersuasive in light of the applicable law.
The question before us concerns the interpretation of N.J.S.A. l7:28-1.1e, when there are multiple claimants whose damages exceed the amount of liability coverage available to a tortfeasor. The statute provides, in pertinent part:
A motor vehicle is underinsured when the sum of the limits of liability under all bodily injury and property damage liability bonds and insurance policies available to a person against whom recovery is sought for bodily injury or property damage is, at the time of the accident, less than the applicable limits for underinsured motorist coverage afforded under the ...