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Erica Dimarco v. Donald A. Ferguson

August 27, 2012

ERICA DIMARCO, PLAINTIFF-APPELLANT,
v.
DONALD A. FERGUSON, DEFENDANT, AND INDIANA INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3127-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 22, 2012

Before Judges J. N. Harris and Fasciale.

Plaintiff Erica DiMarco appeals from a November 4, 2011 order declaring that a "step-down" clause contained in a policy of insurance issued by Indiana Insurance Company (IIC) applies to her underinsured motorist (UIM) claim. The judge properly resolved the dispute over the amount of UIM benefits available to plaintiff. We affirm.

Plaintiff operated a motor vehicle owned by her father's business, Neemar, Inc., and sustained injuries as a result of an accident with another vehicle. Plaintiff filed a complaint against the other driver, defendant Richard Ferguson, and sought compensation for her pain and suffering.*fn1 Ferguson tendered to plaintiff his insurance policy limits of $50,000 and settled plaintiff's lawsuit.*fn2 Thereafter, plaintiff pursued her UIM claim against IIC.

IIC issued an insurance policy to Neemar (the Indiana policy), which provided $1,000,000 in UIM coverage. The Indiana policy contained a step-down clause*fn3 that limited the amount of UIM benefits available. The clause provided:

D. Limit of Insurance

1. [T]he Limit of Insurance [($1,000,000)] shown in the Schedule of Declarations for . . . [UIM benefits] is the most we will pay . . . .

b. However, subject to our maximum Limit of Insurance for this coverage, if:

(1) An "insured" is not the individual named insured under this policy or any other policy;

(2) That "insured" is insured as a "family member" under one or more other policies providing similar coverage; and

(3) All such other policies have a limit of insurance for similar coverage which is less than the Limit of Insurance for this coverage; then the most we will pay [for UIM benefits] shall not exceed the highest applicable limit of insurance under any coverage . . . providing coverage to that "insured" as a "family member."

Plaintiff's mother, with whom plaintiff resided on the date of the accident, maintained automobile insurance through Palisades Insurance Company (Palisades). The Palisades policy contained a UIM limit of $250,000, an amount less than the $1,000,000 UIM limit offered in ...


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