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Jacob v. Netherlands Insurance Co.

Superior Court of New Jersey, Appellate Division

August 28, 2013

DEBORAH M. JACOB, Plaintiff-Appellant,
v.
THE NETHERLANDS INSURANCE COMPANY, doing business as PEERLESS Insurance, a New York Corporation authorized to sell insurance in the State of New Jersey; and TRAVELERS OF NEW JERSEY, Defendants-Respondents. DEBORAH M. JACOB, Plaintiff-Respondent,
v.
THE NETHERLANDS INSURANCE COMPANY, doing business as PEERLESS Insurance, a New York Corporation authorized to sell insurance in the State of New Jersey, Defendant-Respondent, and TRAVELERS OF NEW JERSEY, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 13, 2013

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-527-09.

Joseph M. Chiarello argued the cause for appellant Deborah M. Jacob (A-1378-11) (Jacob & Chiarello, L.L.C., attorneys; Mr. Chiarello and Jarad K. Stiles, on the brief).

James P. Lisovicz argued the cause for respondent Travelers of New Jersey (A-1378-11) and appellant Travelers of New Jersey (A-1445-11) (Coughlin Duffy, L.L.P., attorneys; Mr. Lisovicz, of counsel and on the brief; Timothy P. Smith and Brooks H. Leonard, on the brief).

Marc L. Dembling argued the cause for respondent The Netherlands Insurance Company (A-1378-11 and A-1445-11) (Methfessel & Werbel, attorneys; Mr. Dembling, of counsel and on the brief; Danielle M. Lozito, on the brief).

Before Judges Axelrad, Sapp-Peterson and Nugent.

PER CURIAM

These are back-to-back appeals, consolidated for the purpose of this opinion. At issue in A-1378-11, is what amount, if any, plaintiff, Deborah Jacob, may recover from defendant, Netherlands Insurance Company (Netherlands), the insurer of the vehicle she occupied when injured in a motor vehicle accident, and, in A-1445-11, the coverage obligation, if any, of Travelers Insurance Company, which insured plaintiff's privately owned vehicle. We affirm in part and reverse in part.

These are the facts, which for purposes of summary judgment, are not disputed. On July 8, 2006, plaintiff was injured in a motor vehicle accident while a passenger in a vehicle driven by her husband, Frederick Jacob.[1] The vehicle, a 2006 Jaguar, was owned by her husband's law firm, Jacob & Chiarello, LLC, and was insured by Netherlands under a policy that named Jacob & Chiarello, LLC, as the "named insured."

The declaration page of the Netherlands policy states that "[t]he most we will pay for any accident or loss" for underinsured motorist coverage is $1, 000, 000. The Netherlands UIM endorsement (endorsement) is contained on a page identified in bold and all capitals as:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
NEW JERSEY UNINSURED AND UNDERINSURED MOTORIST COVERAGE.

Section A of the endorsement states that Netherlands will pay all "sums the 'insured' is legally entitled to recover as compensatory damages from the owner or driver of an . . . 'underinsured motor vehicle.'" Section B of the endorsement defines "insured" as:

If the Named Insured is designated in the Declarations as:
. . . .
2. A partnership, limited liability company, corporation or any other form of organization, then the following are "insureds":
a. Anyone "occupying" a covered "auto" or a temporary substitute for a covered "auto[.]"

However, under Section D of the endorsement, identified in bold lettering as "Limit of Insurance, " the policy provides:

1. Regardless of the number of covered "autos[, ]" "insureds[, ]" premiums paid, claims made or vehicles involved in the "accident[, ]" the Limit of Insurance shown in the Schedule or Declarations for Uninsured Motorists Coverage and Underinsured Motorists Coverage is the most we will pay for all damages resulting from any one "accident" with an "uninsured motor vehicle" or an "underinsured motor vehicle[.]"
a. However, subject to our maximum Limit of Insurance for this coverage, if:
(1) An "insured" is not the individual named insured under this policy;
(2) That "insured" is an individual named insured 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 the coverage;
[T]hen the most we will pay for all damages resulting from any one "accident" with an "uninsured motor vehicle" or an "underinsured motor vehicle" shall not exceed the highest applicable limit of insurance under any coverage form or policy providing coverage to that "insured" ...

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