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Barbour v. New Jersey Manufacturers Insurance Co.

August 12, 2010

PATRICIA BARBOUR, PLAINTIFF-RESPONDENT,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6620-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: June 9, 2010

Before Judges Axelrad, Fisher and Sapp-Peterson.

Defendant New Jersey Manufacturers Insurance Company (NJM) appeals from orders entered on October 30, 2008, May 1, 2009 and May 4, 2009. We dismiss the appeal.

Plaintiff Patricia Barbour sustained injuries during a one-vehicle accident on March 11, 2006, in which she was a passenger on her husband David's motorcycle. David insured his motorcycle with Rider Insurance Company (Rider), with bodily injury limits of $15,000 per person and $30,000 per accident. Plaintiff and her husband had no other automobile insurance when the accident occurred.

At the time of the accident, plaintiff and her husband were full-time residents of her parents' home and were insured as resident relatives under an automobile policy issued by NJM to plaintiff's father, Rodrigo Rodriguez, for a period covering December 1, 2005 through December 1, 2006. The policy provided, among other coverage, underinsured motorist (UIM) liability benefits to the insured and others living in his residence.

On October 10, 2006, NJM received a renewal questionnaire completed by Rodriguez seeking to add plaintiff and her husband as members of the household. On October 11, 2006, plaintiff made a demand to NJM for UIM benefits through her attorney. NJM wrote to plaintiff on November 6, 2006, advising that an investigation was necessary to determine coverage. NJM conducted an interview of Rodriguez and an Examination Under Oath (EUO) of plaintiff and her husband, during which it was informed that plaintiff and her husband had been living with Rodriguez since April 2004.

By letter of April 11, 2007, NJM confirmed it would go forward with UIM arbitration. By letter of May l5, 2007, NJM responded to plaintiff's Longworth*fn1 demand and authorized acceptance of Rider's full policy tender of $15,000. At NJM's request, plaintiff was examined by defendant's doctor on November 8, 2007. Plaintiff's second EUO, originally scheduled for November 6, 2007, was rescheduled by defense counsel for December 12, 2007, and then to February 14, 2008.

On January l6, 2008, arbitration was scheduled by the neutral arbitrator for February 7, 2008. However, on January 29, 2008, defense counsel cancelled the arbitration, advising that defendant would not participate or provide UIM coverage to plaintiff. Plaintiff's counsel responded on February l5, 2008, advising that defendant was equitably estopped from denying UIM coverage and canceling the UIM arbitration pursuant to Barrett v. New Jersey Manufacturers Insurance Co., 295 N.J. Super. 613 (App. Div. l996), certif. denied, 150 N.J. 29 (1997). By letter of February 27, 2008, defense counsel indicated it would perform further research. However, after receiving no response, plaintiff filed a complaint and, on September 4, 2008, obtained an order to show cause seeking a determination of the applicability of UIM coverage under the NJM policy.

In opposing the motion at oral argument on October 30, 2008, defense counsel argued, in part, that it validly disclaimed coverage on two grounds: (1) the motorcycle owned by plaintiff's husband was a vehicle "[o]wned by or... available for the regular use of [Rodriguez] or any family member" within the exclusionary clause of the NJM policy, and (2) Rodriguez failed to inform NJM of plaintiff's residence until six months after the accident. Judge Travis Francis commented that those arguments could be made to the arbitrator.*fn2 The judge found defendant had made an "unreasonable delay in disclaiming coverage or even in giving notice of the possibility of such a disclaimer" and such "delay, combined with the prior express acknowledgement that the policy would provide coverage for the claim," warranted granting plaintiff's application to compel UIM arbitration. The court's order of the same date stated: (1) "coverage exists as a matter of law under the terms and conditions of [the] policy... issued by [NJM] to... Rodriguez and the resident relative insured Plaintiff, Patricia Barbour"; (2) NJM's "cancellation of the [subject] policy... is ineffective as a matter of law, and that UIM coverage does indeed exist under that policy for Plaintiff's accident"; (3) NJM is "ordered to provide UIM coverage on the Plaintiff's claims herein under the terms and conditions of the aforesaid policy"; and that (4) NJM is to provide the discovery requested by plaintiff within thirty days and attend and participate in the UIM arbitration within ninety days. NJM did not appeal the order compelling arbitration. See Wein v. Morris, 194 N.J. 364, 380 (2008) (holding that an order compelling arbitration is a final judgment eligible for appeal whether the trial court dismisses the action or stays it pending arbitration).

The UIM arbitration was rescheduled for February 26, 2009, which was cancelled by defense counsel the day before. Pursuant to motion, plaintiff obtained an order on April 3, 2009, compelling NJM to attend UIM arbitration on April 13, 2009. The arbitration resulted in an award in favor of plaintiff, finding her husband was 100% responsible for the accident and awarding her damages in the amount of $250,000, less the $15,000 Rider settlement. NJM did not file a motion for rejection of the award and request for trial de novo pursuant to Rule 4:21A-6(b).

In the meantime, on April l, 2009, NJM filed a motion for reconsideration based on a claim of newly discovered evidence. At oral argument on May 1, 2009, memorialized in an order of the same date, Judge Francis denied reconsideration, finding the motion was procedurally defective as all of the relief sought in the complaint was granted, namely, a determination there was coverage and compelling arbitration "so there was nothing left to litigate, following the Court's decision." The judge also found, on substantive grounds, that NJM presented nothing new.

NJM also contemporaneously filed a motion for summary judgment, returnable May 1, 2009, seeking a determination as a matter of law that plaintiff was a "named insured" under the Rider policy, which had the effect of limiting her coverage to the benefits available under that policy pursuant to NJM's step-down provision. At oral argument before another judge, defense counsel argued the issue was different from that brought before Judge Francis, who found coverage applicable to plaintiff, as NJM was now applying the coverage, which had a step-down clause. Plaintiff argued she was a covered party but not a named insured on her husband's policy and nonetheless, under Barrett, NJM was estopped from denying coverage as determined by Judge Francis. By written opinion of May 4, 2009, the judge found there was "no basis for the ...


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