On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5744-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2013
Before Judges Fisher, Alvarez and St. John.
Plaintiff Dennia Torres appeals a judgment, entered at the conclusion of a bench trial, that determined defendant State Farm Insurance Company -- which provided auto insurance for plaintiff's husband, Kevin Torres -- was not obligated to provide plaintiff with underinsured motorist (UIM) benefits because she did not reside with her husband in Newark but instead resided with her mother in Paterson. Because the trial judge's fact finding on this point is entitled to our deference, we affirm.
In this appeal, plaintiff argues that the trial judge erred: (1) in concluding that State Farm should not be estopped from denying UIM benefits due to its failure to timely file opposition to plaintiff's order to show cause; (2) in failing to find the definition of "insured" in State Farm's policy to be ambiguous; and (3) in finding that plaintiff failed to demonstrate dual residency. We find insufficient merit in these arguments to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), adding only the following brief comments.
We reject plaintiff's argument that State Farm should be estopped from declining UIM coverage because it either expressly or implicitly acknowledged coverage at the inception of this suit. In this regard, the record reveals that plaintiff was in an automobile accident in Elmwood Park on July 2, 2008, and received a formal offer of the policy limits from the other participant in the accident on December 10, 2009. On the day that offer was conveyed, plaintiff sent a Longworth notice*fn1 to State Farm; that letter, in fact, confirmed a conversation two days earlier in which a State Farm representative denied plaintiff's claim for UIM benefits. State Farm confirmed its declination in a letter dated December 11, 2009. In letters exchanged by plaintiff and State Farm in April 2010, State Farm again declined UIM coverage.
On June 16, 2011, plaintiff filed her complaint and obtained an ex parte order to show cause, returnable June 25, 2010. The order directed plaintiff to personally serve the complaint and order to show cause, and required any opposition from State Farm to be filed by June 22, 2010. The papers were not served -- and then not by personal service -- until June 21, 2010; no timely opposition was filed and the trial judge entered an order favorable to plaintiff on July 1, 2010. State Farm immediately and successfully sought relief from that order pursuant to Rule 4:50.
This was not a situation in which the insurer's silence, after receipt of a Longworth notice, could be interpreted as an acknowledgement of coverage. See Barrett v. N.J. Mfrs. Ins. Co., 295 N.J. Super. 613, 618-19 (App. Div. 1996), certif. denied, 150 N.J. 29 (1997). State Farm twice declined coverage, and its failure to file timely opposition to the order to show cause -- which was quickly remedied -- could not be viewed as "unreasonable" and could not have caused plaintiff to believe State Farm had suddenly changed its position. See id. at 618 (recognizing, in quoting from Griggs v. Bertram, 88 N.J. 347, 357 (1982), that "even an insurer which does not acknowledge coverage may be estopped by an '[u]nreasonable delay in disclaiming coverage' . . ."). The trial judge properly rejected plaintiff's estoppel theory.
We also find no merit in plaintiff's second argument that the word "insured," as defined in State Farm's policy, is ambiguous. "Insured" was defined to include, as relevant here, Kevin Torres and his spouse; spouse was further defined as "your [Kevin Torres's] . . . wife who resides primarily with you" (emphasis added). This definition is not ambiguous; it is only, in a case such as this, fact-sensitive -- a circumstance that leads to our disposition of plaintiff's third and last point.
A judge's non-jury findings are entitled to deference when based on substantial and credible evidence. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The chief issue at trial concerned whether plaintiff primarily resided in Kevin Torres's Newark home. The judge found she did not. The judge determined that plaintiff was not credible and there was substantial evidence to support State Farm's contention that plaintiff resided in Paterson. For example: plaintiff changed her driver's license in 2006 to reflect her Paterson address; in registering the vehicle she purchased in 2006, plaintiff utilized the Paterson address; plaintiff was departing from her Paterson address when the 2008 accident occurred; plaintiff advised her auto insurer in 2006 that she lived at the Paterson address -- referring to Kevin Torres's Newark residence as her "previous" address -- and again confirmed this when renewing that policy in 2007; and in executing and filing her tax returns, under penalty of perjury, plaintiff stated she resided at the Paterson address and identified herself as "single, head of household." Plaintiff also testified that, at the time of trial, she continued to reside at the Paterson address with her mother.*fn2 Based on this substantial evidence and his determination that plaintiff was not credible, the trial judge was entitled to conclude that plaintiff resided in Paterson and did not meet the definition of "spouse" in the State Farm policy because she did not prove that she "primarily reside[d]" with Kevin Torres in Newark.