On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2447-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued March 4, 2011
Before Judges Payne and Baxter.
Plaintiff, Lidia Rozek, appeals from a January 22, 2010 order granting summary judgment to defendant, MetLife Insurance Company (MetLife), thereby dismissing her complaint to compel defendant to participate in an underinsured motorists (UIM) arbitration. We affirm the order under review.
I. On April 29, 2001, plaintiff was injured in an automobile accident when her vehicle collided with a vehicle operated by Jia Wang, whose automobile insurance policy with GEICO provided $20,000 maximum liability coverage. At the time of the accident, plaintiff had an auto insurance policy with defendant, MetLife, which provided a maximum UIM benefit of $50,000.
On August 2, 2002, plaintiff submitted a UIM claim to MetLife concerning the April 29, 2001 accident. A few months later, MetLife authorized plaintiff to settle her personal injury claim against Wang for GEICO's policy limits.
On January 14, 2003, plaintiff's attorney notified MetLife that she had selected Eric Schwab as her UIM arbitrator, and she requested counsel for MetLife to notify her of MetLife's selection so that a neutral arbitrator could also be chosen. Within a few days, MetLife appointed Martha Lynes as its arbitrator and submitted a list of three potential neutral arbitrators. Shortly thereafter, MetLife demanded that plaintiff provide a description of all her medical bills and a description of her medical treatment, and supply copies of any expert reports upon which she intended to rely at the time of the arbitration. MetLife also demanded that plaintiff supply answers to interrogatories and submit to a deposition. MetLife's letter concluded with the statement, "this request [for discovery] is made without prejudice to any questions of coverage that may exist in this matter and we expressly reserve our right to contest all coverage questions at any time during the course of the arbitration process." Discovery continued through the spring of 2004.
While discovery was ongoing, plaintiff submitted an application for personal injury protection (PIP) benefits to MetLife. In answer to one of the questions on the PIP application, plaintiff stated that her husband, Maksym Rozek, had a commercial policy with Liberty Mutual covering his limousine business. By letter of July 22, 2003, plaintiff notified MetLife that because the Liberty Mutual policy was a commercial policy, it did not afford UIM coverage. On December 18, 2003, MetLife demanded that plaintiff provide a copy of the Liberty Mutual policy, and any declarations page for such policy, to enable MetLife to makes its own coverage determination.
Approximately one month later, on February 24, 2004, MetLife notified plaintiff that Liberty Mutual's endorsement CA 21 14 03 99 would indeed afford coverage to a spouse, and therefore UIM coverage was potentially available to her through her husband's policy with Liberty Mutual. A month or so later, MetLife reiterated its position that the Liberty Mutual policy would afford UIM coverage to plaintiff, noting that any "issues of primacy" were "controlled by the 'Other Insurance' clauses in each policy." Approximately eight months later, plaintiff acknowledged that Liberty Mutual would, in fact, provide UIM coverage.
Plaintiff notified MetLife's attorney that she sought to schedule the arbitration for November 16, 2004. The record does not indicate MetLife's response to plaintiff's request; however, there were apparently informal discussions between plaintiff's attorney and MetLife's attorney in the summer of 2005 concerning plaintiff's earlier promise to file an order to show cause to compel Liberty Mutual to provide concurrent, pro rata coverage.
Other than the informal discussion in August 2005 concerning Liberty Mutual, there was no communication between the parties from October 13, 2004, when plaintiff's counsel notified MetLife of her intention to schedule the arbitration, and March 10, 2006, at which time plaintiff agreed to the appointment of Robert McCutcheon as a neutral arbitrator. The UIM arbitration was thereafter scheduled for May 9, 2006. However, before the arbitration could take place, MetLife notified plaintiff on May 2, 2006 that MetLife would not proceed with the arbitration until all matters of coverage were resolved with Liberty Mutual. MetLife's May 2, 2006 letter stated:
In reviewing our file in the above matter, it is noted that you had advised me in August 2005 that you would be filing an Order to Show Cause to compel Liberty Mutual Insurance Company to provide concurrent, pro-rata coverage. However, there is no indication in my file that such an Order to Show Cause was ever filed, nor is there any indication that Liberty Mutual Insurance Company was placed on notice of your client's claim.
If you have placed Liberty Mutual Insurance Company on notice of this claim, kindly advise the name and address of the attorneys who are representing Liberty Mutual Insurance Company in this matter.
Please be advised that I shall not be in a position to proceed with the arbitration of this matter until all issues of coverage are resolved, particularly the question of concurrent, pro-rata coverage afforded by Liberty Mutual Insurance Company. [(Emphasis added).]
Despite MetLife's May 2, 2006 letter insisting that it would not participate in the arbitration unless Liberty Mutual was made a party, it was not until March 24, 2008, almost two years later, that plaintiff filed an order to show cause with a verified complaint seeking to compel ...