On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-0803-08.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Simonelli.
Plaintiff Ronald W. Jackson appeals from a September 12, 2008 order granting summary judgment in favor of defendant IFA Insurance Company, Inc. (IFA) and denying plaintiff's cross-motion to compel arbitration of his underinsured motorist (UIM) claim. Based upon our careful review, we affirm substantially for the reasons expressed by Judge Francis J. Orlando, Jr. in his oral opinion following oral arguments on the motions.
The essential facts are not in dispute. Plaintiff was injured in an automobile accident on November 12, 2004 caused by the negligence of Kathryn Evans. Ms. Evans's automobile was insured under an insurance policy issued by Government Employees Insurance Company (GEICO), which had liability limits of $15,000/$30,000. That amount of coverage is alleged by plaintiff to be insufficient to compensate him for his injuries. The vehicle plaintiff was operating was owned by W & W Transportation, whose insurance policy with Liberty Mutual had been cancelled on October 28, 2004. Because plaintiff was living with his son at the time of the accident, he eventually asserted a claim for UIM coverage under the policy issued by IFA to plaintiff's son.
The pertinent sections of the insurance policy regarding subrogation state:
OUR RIGHT TO RECOVER PAYMENT
A. If we make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do:
1. Whatever is necessary to enable us to exercise our rights; and
2. Nothing after loss to prejudice them. . . . .
ADDITIONAL DUTIES A person seeking coverage under this Part must also promptly:
1. Send us copies of the legal papers if a suit is brought; and
2. Notify us in writing of a tentative settlement between the "insured" and the insurer of the "underinsured motor vehicle" and allow us 30 days to advance payment to that "insured" in an amount equal to the tentative settlement to preserve our rights against ...