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Lisette Valentin-Rivera, Individually and As Guardian Ad Litem For v. New Jersey Property-Liability Insurance Guaranty Association

March 25, 2011

LISETTE VALENTIN-RIVERA, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR JEFFREY RIVERA, PLAINTIFF-APPELLANT,
v.
NEW JERSEY PROPERTY-LIABILITY INSURANCE GUARANTY ASSOCIATION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9350-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 30, 2010

Before Judges Graves and Messano.

Plaintiff Lisette Valentin-Rivera filed this declaratory judgment action against defendant, New Jersey Property-Liability Insurance Guaranty Association (PLIGA), seeking coverage under an insurance policy originally issued by MIIX Insurance Company (MIIX) to Dr. Manuel Vega (Vega) and his medical practice, Prospect Women's Medical Center, P.A. (Prospect). Pursuant to an order of liquidation, the obligations under the MIIX policy were assumed by PLIGA. The motion judge granted PLIGA summary judgment and plaintiff now appeals. We affirm.

I.

The facts are undisputed for purposes of this appeal. In 2005, plaintiff filed a medical malpractice action individually and as guardian ad litem for her son, Jeffrey Rivera.*fn1 Plaintiff alleged negligence in the pre- and post-natal care preceding and following the birth of her son.*fn2 The allegation against Vega was that he failed to deliver Jeffrey sooner, resulting in brain injury to the child. Plaintiff sought to hold Prospect vicariously liable for Vega's negligence under the doctrine of respondeat superior.

Vega and Prospect were named insureds under a policy of insurance issued by MIIX that provided coverage under three "Coverage Agreements" as follows:

Coverage A - Individual Professional LiabilityInjury arising out of the rendering of or failure to render, . . . professional services by any individual insured, or by any person for whose acts or omissions such insured is legally responsible, except as a member of a partnership;

Coverage B - Corporate/Partnership Liability Injury arising out of the rendering of or failure to render, . . . professional services by any person for whose acts or omissions the corporation/partnership insured is legally responsible. [Emphasis in original.]*fn3

Coverage B was affected by an "Amendatory Endorsement" incorporated into the policy. The language of this exclusion, Section III(i), is central to the issues presented. The exclusion provided:

This insurance does not apply to liability of the insured:

(i) corporation/partnership under Coverage Agreement B with respect to injury arising solely out of the acts or omissions in the rendering or failure to render professional services by individual physicians or nurse anesthetists, or by any paramedical for whom a premium charge is shown on the declarations page.

[Emphasis in original.]

MIIX filed an answer on behalf of Vega and Prospect. It is undisputed that MIIX never served a reservation of rights notice upon Vega or Prospect. When MIIX was declared insolvent in 2008, PLIGA assumed responsibility pursuant to the Guaranty Association Act (the Act), N.J.S.A. 17:30A-1 to -20.

PLIGA settled plaintiff's claim against Vega for $300,000, the limit of liability under the Act. PLIGA disputed coverage for plaintiff's vicarious claim against Prospect under Coverage Agreement B, but agreed to litigate the issue in a declaratory judgment action. Pursuant to the settlement agreement, if plaintiff prevailed in the declaratory judgment action, "and the court f[ound] that Prospect . . . presented a 'covered claim' as defined in the . . . Act," then plaintiff would receive an additional $300,000.

Pursuant to the settlement agreement, Prospect assigned to plaintiff "any and all rights it may have against [PLIGA] for statutory benefits arising out of [the Policy] issued to it by [MIIX]." The trial court approved the settlement, and plaintiff commenced this declaratory judgment action.

PLIGA moved and plaintiff cross-moved for summary judgment. The motion judge issued a written opinion construing the policy to exclude coverage for a claim against Prospect based upon Vega's negligence. The court interpreted the exclusion as intending "to prevent claimants from recovering two policy limits for the same medical incident" simply by operation of respondeat superior, when the claimant had only alleged negligence against an insured physician named in the declarations page and not against "other employees, such as administrative staff, of [Prospect]." By order of November 20, 2009, the court granted summary judgment to PLIGA and dismissed plaintiff's complaint. This appeal followed.

II.

When reviewing a grant of "summary judgment, we [employ] the same standard[s] . . . [used] by the motion judge." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.) (citations omitted), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine ...


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