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Gabriella Pannebecker v. Philadelphia Indemnity Insurance Company

March 30, 2011

GABRIELLA PANNEBECKER, PLAINTIFF-APPELLANT,
v.
PHILADELPHIA INDEMNITY INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-439-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 27, 2010

Before Judges Cuff, Sapp-Peterson and Simonelli.

In this declaratory judgment action, plaintiff Gabriella Pannebecker, appeals from the trial court order granting summary judgment dismissing her complaint seeking an order compelling defendant, Philadelphia Indemnity Insurance Company (PIIC), to provide underinsured motorist (UIM) coverage pursuant to a policy issued to Progressive Living Units and Systems of New Jersey, Incorporated (PLUS). We affirm.

PLUS is a privately-owned residential facility that provides an array of services including housing, physical therapy, and counseling to its clientele, persons who suffer from brain injuries. It provided housing to plaintiff at a condominium it owns located in Galloway Township. Plaintiff is indigent and totally dependent upon PLUS for all of her daily needs. As part of the rehabilitation process for its clients, PLUS transports clients to the Absecon ShopRite each week for grocery shopping. The clients are transported in a Ford Econoline van insured by PIIC. The van was assigned exclusively to plaintiff's condo. PLUS was the named insured on the policy which provided uninsured and underinsured motorist (UM/UIM) coverage as well as personal injury protection (PIP) benefits.

On June 3, 2008, PLUS transported plaintiff and two other clients to the Absecon ShopRite for their regular visit. Maryann Dennis (Dennis), a life skills trainer employed by PLUS, drove the van. Before entering the store, plaintiff, who was seated in her wheel chair, and the two other clients, smoked cigarettes outside the entrance to the store. They were struck by a vehicle while being ushered into the store by Dennis. Plaintiff remembers the impact of the vehicle pushing her into the door of the store. Her wheelchair was stuck in the doorway and she was unable to move. She suffered severe injuries.

Prior to instituting litigation, plaintiff settled her claims against the driver. She then initiated a lawsuit against PIIC for UIM benefits under the policy it issued to PLUS. Defendant moved for summary judgment contending that plaintiff was not the named insured under the policy. Additionally, defendant argued that plaintiff was not among the other class of persons to whom coverage is extended.

Plaintiff cross-moved for summary judgment, contending that she was entitled to UIM coverage as an intended beneficiary because: (1) the policy named PLUS, a corporate entity, as the named insured, creating an ambiguity for which coverage should be interpreted as including individuals; (2) the purpose of the policy issued to PIIC was to protect persons like plaintiff, who are totally dependent upon PLUS to address all of their needs. Additionally, plaintiff argued that because she is an intended beneficiary under the policy, it was unnecessary to be specifically named as an insured under the policy. Finally, plaintiff urged that she was also entitled to UIM coverage because she was occupying the vehicle at the time of the accident, as the term "occupying" has been construed by our case law.

In a lengthy and well-reasoned oral opinion, Judge William E. Nugent found that based upon the undisputed facts, plaintiff was not occupying the vehicle at the time she was struck, and as such, there was no "nexus between the van and the accident that occurred and the injuries sustained by the plaintiff." Next, the judge concluded that there was no ambiguity in the language of the policy relating to the named insured, which in this case is a business entity, PLUS. Finally, Judge Nugent rejected plaintiff's argument that because she was required to give up all of her assets in order to receive Medicaid benefits, she was like the nun in Thattil v. Dominican Sisters of Charity of the Presentation of the Blessed Virgin, Inc., 601 N.E.2d 908 (Mass. 1993), who was required to surrender her assets to the church and take a vow of poverty, thereby precluding her from obtaining auto insurance. In distinguishing Thattil, Judge Nugent noted, unlike the nun, plaintiff's inability to purchase additional coverage or protection "was not by reason of any rules and regulations of PLUS, and although she may have been incapable physically or financially to do that, that wasn't an imposition or a condition of her ability to live in the PLUS arrangement." The present appeal followed.

On appeal, plaintiff raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT AND DENYING SUMMARY JUDGMENT IN FAVOR [OF] PLAINTIFF.

A. PLAINTIFF WAS AN INTENDED BENEFICIARY OF THE PIIC POLICY AND TO DENY HER COVERAGE WOULD BE ...


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