SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-7174-97T3
PROGRESSIVE CASUALTY INSURANCE COMPANY,
AN INSURANCE CARRIER,
Plaintiff-Respondent
v.
ROBERT MATTHEW HURLEY & DEVIL ELEVEN,
INC., A NEW JERSEY CORPORATION,
Defendants-Appellants/Third Party Plaintiffs,
v.
COVERAGE CONSULTANTS, INC.,
A NEW YORK CORPORATION,
Third-Party Defendant,
v.
JASON JACOBS,
Fourth Party Defendant.
_________________________________________________________________
Submitted November 16, 1999 - Decided January
10, 2000
Before Judges Landau, Kimmelman and Arnold.
On Appeal from Superior Court of New Jersey,
Law Division, Mercer County.
Boffa, Shaljian, Cammarata & O'Connor,
attorneys for appellants 3rd party plaintiffs
(John P. Nulty, of counsel and on the brief).
Berlin, Kaplan, Dembling & Burke, attorneys
for respondent (Marc L. Dembling, of counsel
and on the brief).
Litvak & Accardi, attorneys for 3rd party
defendant (Anthony J. Accardi, of counsel;
Daniel Antonelli on the brief.)
The opinion of the Court was delivered by
LANDAU, J.A.D.
Defendants Robert Hurley ("Hurley") and Devil Eleven, Inc.
("Devil"), a New Jersey corporation, appeal from a Law Division
order granting summary judgment in favor of plaintiff, Progressive
Casualty Insurance, Co.(Progressive). Plaintiff had filed a
complaint seeking a declaratory judgment that Hurley was not
entitled to uninsured motorist (UM) coverage under Devil's commer
cial auto insurance policy for his injuries sustained in an
automobile accident on December 12, 1993, in Sacramento,
California. Defendants' counterclaim sought UM coverage for those
injuries.See footnote 11 The motion was granted on the basis that Hurley, who
was not involved with procuring the policy, was not entitled to UM
coverage under the commercial auto insurance policy issued in New
Jersey by Progressive for injuries sustained while driving a loaned
motor vehicle involved in an automobile accident with an uninsured
motorist in California.
Upon review of the record, we affirm, finding that there is no
genuine issue as to any material fact and that plaintiff was
entitled to summary judgment as a matter of law. R. 4:46-2; Brill
v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995).
Progressive was not required to provide UM coverage pursuant to
N.J.S.A. 17:28-1.1 for a borrowed car neither registered nor
principally garaged in New Jersey, and because the declaration page
of the policy clearly showed that UM coverage was not provided.
These are the facts. On December 12, 1993, Hurley was
involved in a motor vehicle accident in Sacramento, California with
an uninsured motorist. At the time of the accident, he resided in
Sacramento where he played professional basketball with the
Sacramento Kings. Hurley was driving a Toyota 4 Runner loaned to
him, presumably for promotional purposes, by the Folsom Lake Toyota
dealership. Hurley received $60,000 in UM benefits under the
Folsom Lake policy.
Plaintiff had issued a commercial motor vehicle policy to
Devil pursuant to the New Jersey's Commercial Automobile Insurance
Plan (CAIP). Devil was formed at the instance of Hurley's
financial advisor, Jacobs, for tax purposes. A Ford Explorer was
owned and insured by Devil with the plaintiff insurer through the
broker, Coverage. Jacobs made the arrangements.
At their depositions, Hurley and his mother, who was listed as
a Devil employee, both testified that they never had any
conversations with the broker regarding the policy. A Coverage
account executive confirmed in his deposition that he had no
conversations with either of the Hurleys. Hurley said in his
deposition that he understood that the policy was "to protect me in
case if someone tried to sue me as a result of some kind of motor
vehicle problem . . .," and that his financial advisor took out the
policy "as blanket coverage for myself to protect myself and the
employees of Devil Eleven. That's really all I knew about the
policy."
At the time the initial Devil policy was purchased, it was
necessary for Coverage to procure automobile insurance through CAIP
because Hurley was then living in North Carolina, had a North
Carolina drivers license, and had a poor motor vehicle abstract
showing reckless driving and speeding violations. CAIP was
established pursuant to N.J.S.A. 17:29D-1 to provide for the
apportionment of insurance coverage for eligible applicants who
are in good faith entitled to but are unable to procure the same,
through the voluntary market. Regulations adopted as N.J.A.C.
11:3-1.1 to -1.10, established and govern the Commercial Automobile
Insurance Plan.
The New Jersey corporation, Devil Eleven, Inc. was listed as
the named insured and both defendant and his mother were listed as
drivers under the Progressive policy, which was labeled as a
"Business Auto Policy." As required by N.J.S.A. 17:28-1.1, a UM
and UIM insurance endorsement was attached to the policy.
However, N.J.S.A. 17:28-1.1 requires a UM and UIM insurance
provision only for vehicles registered or principally garaged in
this State. One such vehicle, a Ford Explorer, is listed in the
policy. There is no requirement to provide UM coverage for a
borrowed, out-of-state vehicle that is neither garaged nor being
operated in this state. N.J.S.A. 17:28-1.1; 17:28-1.4.
Jacobs testified that when Hurley began using the 4 Runner in
California, he informed Coverage that there was another vehicle
that [defendant] would be driving and, therefore, to get coverage
on that particular vehicle and to extend whatever coverage we had
under the policies and see that that was taken care of.
Pursuant to Jacobs' request, Coverage obtained a new policy
which contained in bold words Added Hired Car and Drive other Car
Coverages. The "Declarations" and premium pages of a new policy
are critical to determining what coverage an insured can reasonably
expect thereunder. Lehrhoff v. Aetna Cas. and Sur. Co., 271 N.J.
Super. 340 (App. Div. 1994).
In this case, the "Declarations" clearly showed that, as
distinct from liability coverage, UM coverage only extended to the
1993 Ford Explorer owned by the corporation. Similarly, item 4 of
the "Declarations" made clear that only liability was covered
under the "Drive Other Car" category. The Declarations also made
clear that no premium was being charged and no coverage provided
for UM, UIM or any other purpose with respect to the "Drive Other
Car" addition. Moreover, the Declarations also showed that only
$104 was being charged as additional premium for the "Drive Other
Car" additional liability coverage.
As noted, a UM/UIM endorsement was annexed to the policy.
Defendants argued below and contend here that inclusion of the
UM/UIM endorsement in the new policy created an ambiguity because
the endorsement's boilerplate language implied that UM coverage
also extended to Hurley when driving the 4 Runner.
The motion judge disagreed, finding that, as the Hurleys never
had any discussions with either the insurance broker or the
insurance company itself, they could not have formed a reasonable
expectation that UM coverage would extend to the borrowed 4 Runner.
Essentially, Hurley relied upon his advisor, Jacobs, not the
policy. The judge also reasoned that the specific language of the
Declarations clearly extended UM coverage only to the specified
Ford Explorer vehicle listed in the UM section of the Declarations.
We agree.
The policy, in relevant part, included the following
provisions:
BUSINESS AUTO POLICY
PART I - WORDS AND PHRASES WITH SPECIAL
MEANING - READ THEM CAREFULLY
A. " You" and your" mean the person or
organization shown as the named insured in
ITEM ONE of the declarations.
F. " Insured" means any person or organization
qualifying as an insured in the WHO IS INSURED
section of the applicable insurance. Except
with respect to our limit of liability, the
insurance afforded applies separately to each
insured who is seeking coverage or against
whom a claim is made or suit is brought.
The UM endorsement is found several pages later with the heading,
"THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY."
The endorsement defines "family member" and in part D list "WHO IS
INSURED".
1. You or any family member
2. Anyone else occupying a covered auto or a
temporary substitute for a covered auto.
Defendants argue on appeal that because the named insured is
a corporate person, UM coverage must necessarily extend to each of
the individuals referenced in the policy, because "family member"
is included in the definition of "who is insured". Essentially,
defendants urge that if Hurley was an "insured" under any provision
of the policy, he must be deemed insured under all of its
coverages.
It is well settled law that when a policy is unclear, an
ambiguity is resolved in favor of the insured, Cobra Prods., Inc.
v. Federal Ins. Co.,
317 N.J. Super. 392, 400 (App. Div. 1998),
certif. denied,
160 N.J. 89 (1999), and that the "fundamental
principle of insurance law is to fulfill the objectively reasonable
expectations of the parties." (emphasis provided). Werner Indus.,
Inc. v. First State Ins. Co.,
112 N.J. 30, 35-36 (1988).
Here, the motion judge noted that Hurley was not even aware of
what was in the policy. Moreover, Hurley understood the policy was
to protect him against liability. As noted above, the Declarations
clearly indicate that there was no UM coverage except when driving
the car insured for that coverage, and that no premiums were
charged, except for liability, with respect to the Drive Other Car
coverage. In Lehrhoff, supra, at 347, we held that the reasonable
expectations provided by the declaration page "cannot be
contradicted by the policy's boilerplate unless the declaration
page itself clearly so warns the insured." We stated,
A personal automobile insurance policy is a
bulky document, arcane and abstruse in the
extreme to the uninitiated, unversed and,
therefore, typical policyholder. We are
persuaded, therefore, that a conscientious
policyholder, upon receiving the policy, would
likely examine the declaration page to assure
himself that the coverages and their amounts,
the identity of the insured vehicle, and the
other basic information appearing thereon are
accurate and in accord with his understanding
of what he is purchasing. We deem it unlikely
that once having done so, the average
automobile policyholder would then undertake
to attempt to analyze the entire policy in
order to penetrate its layers of cross
referenced, qualified, and requalified
meanings.
Id. at 346-47. Based on the "Business Auto Policy" Declarations
and Hurley's deposition testimony, we concur with the motion judge
that there could have been no "reasonable expectation" of UM
coverage for the 4 Runner.
We also find persuasive plaintiff's argument that this was a
policy which could not have been written directly for Hurley, who
was neither licensed in, nor a resident of, New Jersey, and who had
a bad driving record to boot. This was a CAIP policy, a corporate
business policy, not solicited by or on behalf of plaintiff, but
imposed upon it by operation of law primarily as a means to protect
the driving public by providing an auto liability insurance market
for otherwise unplaceable corporate risks. Hurley here seeks to
exploit that salutary legislative effort by engrafting into it
judicial doctrines designed to protect unsophisticated individual
insurance buyers. Here, a closely held corporation employed
sophisticated representatives to secure its insurance coverage and
it received what it purchased.
The judgment rendered is consistent both with existing law and
sound policy. We affirm.
Footnote: 1 1Defendants also filed a third-party complaint against their broker, Coverage Consultants, Inc. (Coverage), contending that if the policy did not provide UM coverage, it was due to the broker's negligence. Coverage filed a fourth-party complaint against Jason Jacobs, Hurley's financial advisor/accountant. The third and fourth party complaints have been resolved, leaving only the UM coverage issue for our consideration on appeal.