(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
STEIN, J., writing for a unanimous Court.
The critical issue in this appeal is the arbitrability of a coverage issue in defense of a claim for
uninsured motorists (UM) coverage under an automobile liability policy.
The insured, Timothy Turck, was a special agent with the FBI. While on assignment in Philadelphia,
he was assisting in the observation and apprehension of four suspects riding in a black Hyundai automobile.
While the Hyundai was stopped at a traffic light, agents' cars surrounded the vehicle and obstructed its
movement. Turck exited his car and approached the Hyundai. One passenger fired a handgun at Turck, and
a bullet struck him on the left wrist. The Hyundai fled the scene and the suspects were not apprehended.
The FBI later established that the Hyundai was owned by an uninsured motorist.
At the time of the shooting, Turck had a personal automobile policy issued by USAA. The policy
contained an arbitration provision applicable specifically to UM coverage, which stated: "If we and a covered
person do not agree: 1. whether that person is legally entitled to recover damages under this endorsement; or
2. as to the amount of damages; either party may make a written demand for arbitration."
Turck filed a claim with USAA seeking recovery for his injuries pursuant to the UM coverage
provision. USAA denied coverage, contending that the injuries were not caused by an "accident." Turck
demanded arbitration. USAA instituted this declaratory judgment action seeking to preclude arbitration on
the basis that UM coverage issues are not arbitrable.
The Law Division determined that the coverage issue was legal rather than factual, and that a court
rather than an arbitrator should resolve it. The court then granted USAA's motion for summary judgment,
concluding that an injury inflicted by a passenger intentionally firing a handgun did not constitute a covered
accident.
The Appellate Division reversed. It determined that the UM arbitration clause in this policy was not
as restrictive as the usual clause for which coverage questions have been deemed not arbitrable. Citing
recent precedent suggesting that the unnecessary bifurcation of disputes between judicial resolution and
arbitration is disfavored, the Appellate Division found that a broad scope of arbitration was more consistent
with the modern view.
The Supreme Court granted USAA's petition for certification.
HELD: The question whether Turck's injury is caused by an accident and otherwise compensable under the
USAA policy is arbitrable.
1. The use of arbitration to expedite resolution of UM claims is widespread in automobile liability policies.
In New Jersey, the guiding principle governing the scope of the arbitration is that the arbitrator's authority is
circumscribed by the parties' agreement. This has led to a line of cases holding that under the standard UM
endorsement clause, an arbitrator is permitted to decide only the extent of the liability of the tortfeasor and
the total amount of damages, not the issue of coverage. (pp. 6-11)
2. More recently, courts have applied a more pragmatic approach to avoid unnecessary delay and the
inefficiency that results from the bifurcation of a single dispute between arbitration and judicial intervention.
Fairness and economy suggest the logic of one proceeding, to the extent permitted by the language of the
arbitration clause. In several cases, the Appellate Division has interpreted UM arbitration clauses virtually
identical to the one in this appeal as being broader in scope than the usual UM endorsement, and held that
the issue of coverage was arbitrable. (pp. 11-15)
3. It should be noted that insurers on occasion voluntarily submit coverage issues to arbitration although not
required to do so by policy language. Moreover, to the extent that policy language may be susceptible to
more than one interpretation, insurers can modify that language to address issues of UM coverage. For
example, the Insurance Services Office standard form for the 1996 insurance agreement specifically states in
respect of arbitration of UM coverage that "disputes concerning coverage under this part may not be
arbitrated." (pp. 15-17)
4. The UM arbitration provision here can be read restrictively to refer only to whether Turck has a claim for
damages against the person that fired the handgun at him, or more broadly to permit arbitration to resolve
whether Turck's injury is compensable under the UM coverage provision. Because insurance policies are not
readily understood, ambiguities in insurance contracts generally should be resolved against the insurer.
Guided by that principle, as well as the undesirability of bifurcating UM claims between judicial resolution
and arbitration proceedings, the question whether Turck's injury is caused by an accident and otherwise
compensable under the USAA policy is arbitrable. (pp. 17-19)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and
COLEMAN join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
168 September Term 1997
UNITED SERVICES AUTOMOBILE
ASSOCIATION (USAA),
Plaintiff-Appellant,
v.
TIMOTHY B. TURCK,
Defendant-Respondent.
Argued November 10, 1998 -- Decided December 17, 1998
On certification to the Superior Court,
Appellate Division.
George Wilgus, III, argued the cause for
appellant (Lenox, Socey, Wilgus, Formidoni &
Casey, attorneys).
Thomas J. Shusted, Jr., argued the cause for
respondent.
The opinion of the Court was delivered by
STEIN, J.
The critical issue presented by this appeal is the
arbitrability of a coverage issue raised by an insurer in defense
of a claim asserted by its insured pursuant to the uninsured
motorists (UM) coverage provisions of his automobile liability
policy. The policy provided that, on demand of an insured or the
insurer, disputes concerning claims for UM coverage would be
submitted to arbitration if the parties did not agree on whether
a person insured by the policy "is legally entitled to recover
damages under this endorsement" or with respect to the amount of
damages.
Because the insured's injury allegedly was caused by a
bullet fired intentionally by a passenger in an uninsured
automobile, the insurer contended that the injury was not caused
by an "accident," a condition of coverage under the policy. When
the insured demanded arbitration the insurer instituted a
declaratory judgment action to prevent arbitration on the ground
that "coverage" issues, as distinguished from liability or
damages issues, are not arbitrable under the policy. The Law
Division, agreeing with the insurer that the claim was not
covered and that the coverage issue was not arbitrable, granted
the insurer's motion for summary judgment. In an unpublished
opinion the Appellate Division reversed, holding that under the
specific policy language the coverage issue was arbitrable, and
remanded the matter for submission to an arbitrator.
The material facts are undisputed. The insured, Timothy
Turck (Turck), was a special agent with the Federal Bureau of
Investigation (FBI). On March 16, 1994, while on assignment in
Philadelphia, he was assigned to assist in the observation and
apprehension of certain criminal suspects.
Several cars occupied by FBI agents followed four suspects
riding in a black Hyundai automobile. When the Hyundai stopped
at a traffic light, agents' cars surrounded the vehicle and
obstructed its movement. Turck exited his car and approached the
Hyundai, demanding that the passengers raise their hands. One
passenger fired a handgun at Turck, and a bullet struck him on
the left wrist. Turck returned fire, but the Hyundai fled the
scene and the suspects were not apprehended. The agents
established that the Hyundai was owned by Margaret Tucker, an
uninsured motorist.
At the time of the shooting, Turck had a personal automobile
insurance policy issued by the United Services Automobile
Association (USAA). The uninsured motorist coverage provisions
of Turck's policy described the scope of that coverage:
We will pay compensatory damages which a
covered person is legally entitled to recover
from the owner or operator of an uninsured
motor vehicle or underinsured motor vehicle
where such coverage is indicated as
applicable in the Declarations because of:
1. Bodily injury sustained by a covered
person and caused by an accident; and
2. Property damage caused by an accident
except under paragraph 2 of the definition of
uninsured motor vehicle.
The owner's or operator's liability for these
damages must arise out of the ownership,
maintenance or use of the uninsured motor
vehicle or underinsured motor vehicle.
. . . .
"Covered person" as used in this endorsement
means:
1. You and any family member.
2. Any other person occupying your covered
auto.
3. Any person for damages that person is
entitled to recover because of bodily injury
to which this coverage applies sustained by a
person described in 1. or 2. above.
The policy also contained an arbitration provision applicable
specifically to UM coverage:
If we and a covered person do not agree:
1. Whether that person is legally entitled to
recover damages under this endorsement; or
2. As to the amount of damages;
either party may make a written demand for
arbitration. In this event, each party will
select an arbitrator. The two arbitrators will
select a third.
. . . .
A decision agreed to by two of the arbitrators
will be binding as to:
1. Whether the covered person is legally
entitled to recover damages; and
2. The amount of damages. This applies only if
the amount of damages does not exceed the
minimum limit for liability specified by the
financial responsibility law of New Jersey.
Turck filed a claim with USAA seeking recovery for his injuries
pursuant to the uninsured motorists coverage provisions of the
policy. USAA denied coverage, contending that Turck's injury was
not caused by an "accident," but rather by the intentional firing of
a handgun. Consistent with the policy provisions, Turck demanded
arbitration. USAA then instituted this declaratory judgment seeking
to preclude arbitration on the basis that UM coverage issues are not
arbitrable.
In the Law Division, the parties cross-moved for summary
judgment. The Law Division determined that the coverage issue was
legal rather than factual, and that a court rather than an
arbitrator should resolve it. Concluding that an injury inflicted
by a passenger in an uninsured motor vehicle intentionally firing a
handgun did not constitute a covered accident within the meaning of
the policy provisions, the court granted USAA's motion for summary
judgment.
The Appellate Division reversed. The court took note of
decisional law holding that "coverage questions are not arbitrable
under the usual arbitration clause contained in an uninsured
motorist endorsement." New Jersey Mfrs. Ins. Co. v. Franklin,
160 N.J. Super. 292, 297 (App. Div. 1978). Nevertheless, the court
determined that it would be guided by the holding in Bocelli v.
Hanover Metro Insurance Co.,
219 N.J. Super. 6, 10 (App. Div. 1987),
to the effect that the uninsured motorists endorsement there at
issue "renders arbitrable all issues relating to the liability of
the carrier, including issues of coverage, and not just issues
related to the liability of the uninsured motorist and the amount of
damages." The Appellate Division panel concluded that Bocelli was
the more appropriate precedent to follow because the uninsured
motorists arbitration clause in Bocelli was virtually identical to
the language in Turck's policy, whereas the standard policy language
relied on by older cases sharply restricted the issues for
resolution by arbitration. Moreover, the court relied on this
Court's observation in Zirger v. General Accident Insurance Co.,
144 N.J. 327 (1996), that we would "look with disfavor upon the
unnecessary bifurcation of disputes between judicial resolution and
arbitration," id. at 343 (quoting Ohio Cas. Ins. Co. v. Benson,
87 N.J. 191, 199 (1981)), to support its conclusion that the broadened
scope of arbitration endorsed by Bocelli was more consistent "with
the modern view of dispute resolution."
We granted USAA's petition for certification.
153 N.J. 213
(1998).
Since 1968 it has been mandatory in New Jersey for automobile
insurers to offer UM coverage to their insureds. L. 1968, c. 385
(codified at N.J.S.A. 17:28-1.1 and -1.2). The legislation had a
two-fold purpose:
(1) to place the innocent victims of
automobile accidents in nearly as good a
position as they would have been had the
uninsured tortfeasor complied with the
state's compulsory insurance laws; and (2) to
alleviate financial burdens on the
Unsatisfied Claim and Judgment Fund, which
would be forced, absent uninsured motorist
coverage, to respond to the injured parties'
claims.
[Craig & Pomeroy, New Jersey Auto Insurance
Law 259 (1998).]
In construing the statutory provisions mandating UM coverage, our
courts generally have been "committed to a liberal construction of
automobile insurance legislation to effect 'the broadest protection
of auto accident victims consistent with the language of the
pertinent statute.'" Riccio v. Prudential Property & Cas. Ins. Co.,
108 N.J. 493, 502 (1987) (quoting Ciecka v. Transamerica Ins. Group,
81 N.J. 421, 428 (1979) (quoting Motor Club of Am. Ins. Co. v.
Phillips,
66 N.J. 277, 293 (1974))).
Although not required by the enabling legislation, the use of
arbitration to expedite resolution of UM claims is widespread and UM
coverage provisions in automobile liability policies
characteristically authorize arbitration of disputes at the option
of either party. Described as "the most controversial provision in
the entire endorsement," the UM arbitration clause has generated
extensive litigation throughout the country concerning the intended
scope of the arbitration proceeding. A.S. Klein, Annotation, What
Issues Are Arbitrable Under Arbitration Provision of Uninsured
Motorist Insurance,
29 A.L.R.3d 328, 332-34 (1970). In New Jersey,
the guiding principle governing the scope of an arbitration clause
is "that only those issues may be arbitrated which the parties have
agreed shall be. Stated another way, the arbitrator's authority is
circumscribed by whatever provisions and conditions have been
mutually agreed upon." In re Arbitration Between Grover & Universal
Underwriters Ins. Co.,
80 N.J. 221, 229 (1979). That salutary
principle was elaborated on in Cohen v. Allstate Insurance Co.,
231 N.J. Super. 97, 100-01 (App. Div. 1989):
Although the public policy of this State is
to favor arbitration as a means of settling
disputes which otherwise would go to court, it
is equally true that the duty to arbitrate, and
the scope of the arbitration, are dependent
solely on the parties' agreement. The parties
may shape their arbitration in any form they
choose and may include whatever provisions they
wish to limit its scope. The parties have the
right to stand upon the precise terms of their
contract; the court may not rewrite the contract
to broaden the scope of arbitration or otherwise
make it more effective. It is also significant
that, although the legislature has mandated
binding arbitration of PIP claims at the option
of the insured (N.J.S.A. 39:6A-5c) and has
required non-binding arbitration of certain
automobile tort claims (N.J.S.A. 39:6A-31), it
has not required arbitration of UM claims at
all. Thus the ascertainable public policy here
is to encourage resort to arbitration while
preserving full flexibility to the parties to
elect or reject, and to structure and limit,
that process as they choose.
The principle that the scope of arbitration is determined
exclusively by the underlying contract is at the root of the line of
cases in our courts that hold or observe that under the "standard"
UM endorsement clause an arbitrator is permitted to decide only two
issues: the extent of the liability of the tortfeasor and the total
amount of damages. See, e.g., Riccio, supra, 108 N.J. at 496
(dicta); Tounatore v. Selective Ins. Co.,
302 N.J. Super. 244, 246,
254-55 (App. Div. 1997) (noting that in New Jersey UM coverage
issues are customarily decided by court and issues of liability and
damages are decided by arbitrator, but holding that under unique
circumstances of claim involving injuries sustained by "good
samaritan" EMS worker who stopped to render assistance at multi-vehicle accident caused by uninsured motorist's vehicle, issue of
proximate causation as well as liability would be decided by
arbitrator); Franklin, supra, 160 N.J. Super. at 297 (noting that
"it is well settled in this State that coverage questions are not
arbitrable under the usual arbitration clause contained in an
uninsured motorists endorsement"); Government Employees Ins. Co. v.
Bovit,
142 N.J. Super. 268, 273-74 (App. Div. 1976) (holding that
under standard arbitration clause, issue of existence of "phantom"
vehicle was coverage issue, distinct from question of liability of
owner/operator of such vehicle, and hence court rather than
arbitrator must resolve it); Selected Risks Ins. Co. v. Schulz,
136 N.J. Super. 185, 187-88 (App. Div. 1975) (holding that under
standard UM arbitration clause limiting arbitrable issues to
liability of owner or operator of insured vehicle and damages of
insured, validity of policy clause reducing UM benefits by amount of
workers compensation award should be determined by court rather than
arbitrator); Travelers Indemnity Co. v. Mongiovi,
135 N.J. Super. 452, 459 (App. Div. 1975) (holding that under standard UM
arbitration clause only arbitrable issues are liability of owner or
operator of uninsured vehicle and claimant's damages, and question
whether disclaimer of coverage by tortfeasor's carrier because of
non-cooperation triggers liability under UM coverage is issue for
court rather than arbitrator); New Jersey Mfrs. Ins. Co. v.
McDermott,
201 N.J. Super. 251, 254 (Law Div. 1985) (holding that
claim by accomplice in attempted theft from commercial establishment
for UM coverage based on negligent operation by driver of uninsured
"getaway" vehicle presents issue of coverage, not liability, to be
determined by court rather than arbitrator); Government Employees
Ins. Co. v. Shara,
137 N.J. Super. 142, 145 (Ch. Div. 1975) (holding
that validity of restriction in UM policy precluding UM coverage if
claimant settles with any tortfeasor without carrier's consent is to
be resolved by court rather than arbitrator under standard UM
arbitration clause).
Critical to an understanding of those cases that sharply limit
the scope of UM arbitration is the language of the "standard" UM
arbitration clause commonly in use when those cases were decided.
That standard clause, exemplified by the policy language in Bovit,
supra, 142 N.J. Super. at 271-72, reads as follows:
If any person making a claim hereunder and the
company do not agree that such person is legally
entitled to recover damages from the owner or
operator of an uninsured highway vehicle because
of bodily injury or property damage to the
insured, or do not agree as to the amount of
payment which may be owing under this insurance;
then upon written demand of either, the matter
. . . upon which such person and the company do
not agree shall be settled by arbitration
. . . .
Substantially similar language also was used in the arbitration
clauses at issue in Schulz, supra, 136 N.J. Super. at 187; Mongiovi,
supra, 135 N.J. Super. at 456; McDermott, supra, 201 N.J. Super. at
254; and Shara, supra, 137 N.J. Super. at 145.
Construing a UM policy with an arbitration clause virtually
identical to that in Bovit, supra, 142 N.J. Super. at 272, this
Court in Benson, supra, 87 N.J. at 199, overruled Bovit and held
that the issue of the existence of a "phantom" hit-and-run driver
should be determined by an arbitrator rather than the court. Benson
involved a claim by the insured that his vehicle was forced off the
road by a phantom driver who, without contact, cut off his vehicle
causing Benson to veer off the road and crash into a tree. Benson
demanded arbitration under the provisions of his UM policy requiring
arbitration in the event of a disagreement about whether the insured
is "legally entitled to recover damages from the owner or operator
of an uninsured highway vehicle." Id. at 193. Ohio Casualty sought
to enjoin the arbitration. The Law Division denied Benson's motion
to dismiss the complaint. Id. at 194. Reversing the Law Division,
this Court concluded
that the arbitrable issue [the uninsured's
liability] subsumes the subordinate issue,
whether a hit and run driver existed. Common
sense and practicality militate against a
technical construction that would cause
unnecessary delay in the resolution of the
insured's claim. The logic of fairness and
economy suggest a one-stop proceeding.
In Benson, the Court also expressed its concern about the
inefficiency that results from the bifurcation of a single dispute
between arbitration and judicial intervention:
A modern system of judicial administration
should provide not only for the efficient
disposition of cases within the judicial system,
but also should contemplate alternative methods
of dispute resolution outside the system. One
such alternative method is arbitration. Just as
we view piecemeal litigation as anathema, we
also look with disfavor upon the unnecessary
bifurcation of disputes between judicial
resolution and arbitration. See generally Ford
Foundation, New Approaches to Conflict
Resolution 44-45 (May, 1978). Thus, our
construction of the scope of arbitration clauses
is consistent with the policy of favoring
commercial arbitration as a speedy and
inexpensive method for settling disputes.
Other courts have applied Benson's more pragmatic approach to
the extent permitted by the language of the arbitration clause or
the issues in dispute. In Bocelli, supra,
219 N.J. Super. 6,
plaintiff sustained serious injuries when he was allegedly cut off
by a hit-and-run driver, causing his father's pick-up truck that he
was driving to work to veer off the road and strike a bridge
abutment. As a resident of his father's household, Plaintiff
indisputably qualified as a covered person under the policy.
Hanover Metro Insurance Company (Hanover) denied coverage on the
ground that no hit-and-run driver existed and in reliance on a
policy exclusion from coverage of "any person . . . [u]sing a
vehicle without a reasonable belief that that person is entitled to
do so." Id. at 9. Bocelli sued to compel arbitration, and Hanover
defended on the ground that the existence of a hit-and-run driver
and plaintiff's reasonable belief that he was permitted to drive the
truck were coverage issues to be resolved by a court rather than an
arbitrator.
Holding that the issues were arbitrable, the Appellate Division
noted that the language of Hanover's arbitration clause was
significantly broader than the "standard" arbitration clause relied
on in earlier cases. The Hanover arbitration clause afforded
arbitration to all disputes over whether "a covered person . . . is
legally entitled to recover damages under this endorsement." Ibid.
The court contrasted that language with that used in the arbitration
clause in Mongiovi, supra, 135 N.J. Super. at 461, which limited
arbitration to disputes over whether "a person making a claim . . .
is legally entitled to recover damages from the owner or operator of
an uninsured highway vehicle." Bocelli, supra, 219 N.J. Super. at
10.
Noting that the more restrictive policy language in Mongiovi
focuses on the liability of the owner or operator of the uninsured
vehicle, the Bocelli court emphasized that the broader language in
the Hanover arbitration clause encompassed an insured's legal right
to recover damages under the UM endorsement. Accordingly, the court
concluded that the Hanover endorsement "renders arbitrable all
issues related to the liability of the carrier, including issues of
coverage, and not just issues related to the liability of the
uninsured motorist and the amount of damages." Ibid. (emphasis
added).
Construing an arbitration clause virtually identical to those
in Bocelli and in this appeal, the Appellate Division has determined
that an arbitrator rather than a court should decide whether a
plaintiff pursuing a UM claim against his carrier has satisfied his
policy's verbal threshold. In Cutitta v. Selective Insurance Co.,
255 N.J. Super. 252 (1992), plaintiff sought damages from his
insurer for injuries caused by a collision with an uninsured
motorist. The insurer denied the claim on the basis that plaintiff
had not satisfied the policy's verbal threshold requirements, and
refused to arbitrate the issue. Plaintiff instituted an action to
compel arbitration, relying on the policy provision requiring
arbitration on demand in the event of a disagreement over whether an
insured "is legally entitled to recover damages under this
endorsement." Id. at 254-55. The Law Division held that the verbal
threshold issue was not arbitrable. Id. at 254. The Appellate
Division reversed, reasoning that the issue of severity of damage
was inherently factual and should be determined by an arbitrator.
Relying on Bocelli, on this Court's opinion in Benson, and on an
analogous New York precedent, Aetna Casualty & Surety Co. v.
Cochrane,
64 N.Y.2d 796,
476 N.E.2d 314 (Ct. App. 1985), the panel
observed that "New Jersey's strong policy encouraging alternate
dispute resolution can only succeed where arbitration actually
settles disputes between parties who have specifically contracted
for it." Id. at 259. Accord Dicks v. New Jersey Auto. Full
Underwriting Ass'n,
254 N.J. Super. 748, 752-53 (Law Div. 1992).
We note that insurers on occasion voluntarily submit coverage
issues to arbitration although not compelled to do so by policy
language. See, e.g., Perez v. American Bankers Ins. Co.,
81 N.J. 415, 416-17 (1979) (involving submissions to arbitrator to decide
whether plaintiff's injuries, allegedly caused by hit-and-run
driver, resulted from contact or noncontact accident, and if the
latter, whether policy provisions requiring corroboration were
satisfied); Grover, supra, 80 N.J. at 228-29 (involving voluntary
submission by insurer to arbitration of question whether competent
evidence existed to corroborate plaintiff's claim that his injuries
were caused by hit-and-run driver). Moreover, to the extent that
policy language governing the scope of UM arbitration may be
susceptible to more than one interpretation, we previously have
observed that "insurers can modify policy language in an effort to
address issues of [UM and] UIM coverage and liability." Magnifico
v. Rutgers Cas. Ins. Co.,
153 N.J. 406, 418 (1998).
In that connection we note that the Insurance Services Office
standard form of the 1996 insurance agreement on file with the
Department of Insurance provides specifically under the
"Arbitration" paragraph applicable to UM coverage that "disputes
concerning coverage under this part may not be arbitrated." See
also Craig & Pomeroy, supra, Appendix C-1 at 603 (setting forth
arbitration clause of Personal Automobile Policy that expressly
precludes arbitration of coverage disputes).
When confronted with an arbitration clause of imprecise scope,
such as the one at issue here, we are influenced by the concerns we
expressed in Zirger, supra, 144 N.J. at 342, about "the potential
anomaly of the use of arbitration as a supplement to an adjudication
in court." In Zirger, we invalidated the standard arbitration
clause in the insurer's underinsured motorists coverage (UIM)
endorsement to the extent that it mandated an arbitration proceeding
that duplicated the underlying litigation of a tort claim. The
plaintiff in Zirger sustained injuries in an accident with a
tortfeasor who carried only $15,000 in coverage; Zirger's personal
automobile policy provided UIM coverage of $1,000,000. The policy
required arbitration of disputed questions of liability and damages.
On notice to his insurer, Zirger's counsel in the underlying action
against the tortfeasor decided to try to a jury Zirger's claim for
damages, and the jury awarded Zirger $400,000. General Accident
neither objected to nor sought to intervene in the damages trial.
General Accident refused to pay Zirger the amount of the jury award
and insisted on arbitration. The Appellate Division held that
General Accident's consent to Zirger's pursuit of a damage claim did
not constitute a waiver of its right to arbitration.
This Court reversed, invalidating the arbitration clause to the
extent that it required litigation that was duplicative of the trial
of the damages claim. We noted:
The advantages of arbitration evaporate when
arbitration is used not as a substitute for
litigation, but as a supplement to litigation.
Used in that manner, a procedure designed to
expedite dispute resolution is transformed into
a mechanism for delaying and obstructing final
resolution of disputes.
The USAA arbitration clause mandates arbitration in the event
of a dispute over whether the insured "is legally entitled to
recover damages under this endorsement." Read restrictively, the
clause could be understood to refer only to whether Turck has a
claim for damages against the unidentified person that fired a
handgun at him. A broader and more literal reading would require
arbitration to resolve whether Turck's injury is compensable under
the UM coverage provisions of the USAA policy. We often have
observed that because insurance policies are not readily understood,
ambiguities in insurance contracts generally should be resolved
against the insurer. See Sparks v. St. Paul Ins. Co.,
100 N.J. 325,
336 (1985); Allen v. Metropolitan Life Ins. Co.,
44 N.J. 294, 305-06
(1965). Guided by that principle, as well as by the undesirability
of bifurcating UM claims between judicial resolution and arbitration
proceedings, we hold that the question whether Turck's injury is
caused by an accident and otherwise compensable under the USAA
policy is arbitrable.
Our conclusion is influenced by the recognition that the
arbitration clause at issue here uses language that is significantly
less restrictive than the standard arbitration clause construed in
Bovit, supra, 142 N.J. Super. at 272, and other earlier cases. In
addition, the recognition that the insurance industry is able to
avoid the ambiguity inherent in the arbitration clause before us by
using more precise terminology suggests that the question whether UM
coverage issues are arbitrable may not frequently reoccur. Finally,
the availability of arbitration to resolve all issues raised by
Turck's UM claim is clearly preferable to a bifurcated proceeding
requiring judicial resolution of the coverage question and a
potentially duplicative arbitration proceeding restricted to
liability and damages issues.
We note that the Law Division, relying on Lindstrom v. Hanover
Insurance Co.,
138 N.J. 242, 249 (1994), concluded that UM coverage
does not apply to injuries caused by conduct that is an accident
from the victim's perspective but that is intended by the actor.
Consistent with our resolution of this appeal, we intimate no view
on the appropriate resolution of any legal issues to be decided by
the arbitrator.
We affirm the judgment of the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and COLEMAN join in JUSTICE STEIN's opinion.
NO. A-168 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
UNITED SERVICES AUTOMOBILE
ASSOCIATION (USAA),
Plaintiff-Appellant,
v.
TIMOTHY B. TURCK,
Defendant-Respondent.
DECIDED December 17, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
DISSENTING OPINION BY