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Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee,GP on Personal Injury and was a speaker at the ABA Annual Meeting attended by 10,000 attorneys and professionals. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

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Thursday, January 5, 2017

CRUZ-LEON V. IFA INS. CO. : Insurance Coverage Offered to Permissive Driver

                                           CRUZ-LEON V. IFA INS. CO.
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Messano and Suter. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-11751-14. Toni A. DeGennaro, attorney for appellant. Robert A. Hoffman, attorney for respondent (Patrick M. Nerney, on the brief). The opinion of the court was delivered by SUTER, J.A.D. (temporarily assigned) 
Defendant IFA Insurance Company (IFA) appeals an order granting uninsured motorist (UM) coverage to plaintiff Maria M. Cruz-Leon under an IFA standard automobile insurance policy, and ordering arbitration of her personal injury claim. We affirm. 

I.

Plaintiff was driving a van that was owned by an individual who was a named insured under a standard personal automobile insurance policy issued by IFA. That insurance policy provided uninsured and underinsured motorist coverage (UM/UIM) with maximum policy limits of $50,000/$100,000. Plaintiff was a named insured under her own automobile insurance policy issued by Praetorian Insurance Company, but that policy was a "special automobile insurance policy" authorized pursuant to the provisions of N.J.S.A. 39:6A-3.3. Special automobile insurance policies are intended to assist low income individuals to comply with mandatory private passenger automobile insurance requirements. They provide emergency personal injury protection (PIP) coverage up to $250,000, death benefits up to $10,000 and are subject to the verbal threshold. N.J.S.A. 39:6A-3.3(b)(1)-(3). Special automobile insurance policies "shall not provide for liability, collision, comprehensive, uninsured or underinsured motorist coverage." N.J.S.A. 39:6A-3.3(c). As such, plaintiff's policy did not provide UM/UIM coverage. 
On October 8, 2010, the van plaintiff was driving was rear-ended by a vehicle driven by Roderick Swan. The parties agree that Swan was uninsured. Plaintiff alleges she sustained personal injuries in the accident. 
IFA denied plaintiff's request for PIP benefits and UM coverage under the IFA policy, and also denied plaintiff's request for arbitration. Plaintiff filed an Order to Show Cause seeking to require IFA to arbitrate the UM claim.
Plaintiff has not appealed the denial of PIP benefits. 
In granting the Order to Show Cause, Judge Travis L. Francis found that plaintiff was not excluded from UM coverage by IFA's UM Exclusion Endorsement, which he construed to be "inapplicable" because plaintiff was not operating her own vehicle at the time of the accident, but was operating a vehicle insured by IFA. He did not find any inconsistency between the "UM statute, N.J.S.A. 17:28-1.1(a), and the IFA policy."
In doing so, the judge rejected plaintiff's contention that the IFA policy conflicted with N.J.S.A. 17:28-1.1 by denying her UM coverage. See Rider Ins. Co. v. First Trenton Cos.354 N.J. Super. 491, 500 (App. Div. 2002) (holding that a policy provision that eliminates UM coverage when multiple insurance policies are available is invalid under N.J.S.A. 17:28-1.1(a)). Plaintiff has not cross-appealed. We have no need to decide whether IFA's policy conflicts with any statutory provision. 
IFA appeals, contending the judge erred in interpreting its UM Exclusion Endorsement so as not to exclude coverage for plaintiff. IFA contends its policy exclusions are clear and unambiguous. On appeal, IFA also contends the judge did not adequately address the policy's UM Limitation of Liability Endorsement. 

II.

A.

We generally defer to the factual findings of the trial court. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.65 N.J. 474, 483-84 (1974). However, "[t]o the extent that the trial court's decision constitutes a legal determination, we review it de novo." D'Agostino v. Maldonado216 N.J. 168, 182 (2013) (citing Manalapan Realty v. Twp. Comm. of Manalapan140 N.J. 366, 378 (1995)). 
IFA asserts that plaintiff's claim is excluded under its policy. Insurance policies should be interpreted to give effect to their plain and ordinary meaning. Progressive Cas. Ins. Co. v. Hurley166 N.J. 260, 272-73 (2001). An insurance policy "should be construed liberally in [the insured's] favor to the end that coverage is afforded to the full extent that any fair interpretation will allow." Id. at 273 (quoting Kievit v. Loyal Protective Life Ins. Co.34 N.J. 475, 482 (1961) (other citations omitted)). However, it is well established that the insurer bears the burden of demonstrating that an exclusion applies. Flomerfelt v. Cardiello202 N.J.432, 456 (2010); S.T. Hudson Eng'rs, Inc. v. Pa. Nat'l Mut. Cas. Co.388 N.J. Super. 592, 603 (App. Div. 2006), certif. denied189 N.J. 647 (2007). Exclusions in an insurance policy are to be narrowly construed. Doto v. Russo140 N.J. 544, 559 (1995). 
IFA appears largely to have abandoned its initial contention made in opposition to plaintiff's Order to Show Cause that plaintiff was excluded from coverage by IFA's UM Exclusion Endorsement. That exclusion provided: 
A. We do not provide coverage under this endorsement for "property damage" or "bodily injury" sustained by an "insured":

1.
 Who is an owner of a motor vehicle:

a.
 Insured under a basic automobile insurance policy issued in accordance with New Jersey law or regulation; or 
b.
 Required to be insured in accordance with New Jersey law or regulation, but not insured for this coverage or any similar coverage.


This includes a trailer of any type used with a vehicle described in a. and b.above.
However, this Exclusion (A.1.) does not apply to you unless you are "occupying", at the time of the accident, a motor vehicle described in a. and b. above.
[(emphasis in original).]

We apply the plain language of the policy in interpreting this exclusion. See Progressivesupra166 N.J. at 272. Because plaintiff was driving the van insured by IFA and not her own vehicle, the express language of the exclusion did not apply to her because she was not "occupying" a vehicle described in "a or b above." 

B.

IFA contends that because plaintiff's special insurance policy did not include UM coverage, and because IFA's policy has a step-down provision under the UM Limit of Liability Endorsement that restricts coverage, there is therefore no UM coverage for plaintiff under the IFA policy. The applicable provision provides: 

LIMIT OF LIABILITY
 

. . . .
 

1.
 If:

a.
 An "insured" is not the named insured under this policy; 
b.
 That "insured" is a named insured under one or more other policies providing similar coverage; and 
c.
 All such policies have a limit of liability for similar coverage which is less than the limit of liability for this coverage;
then our maximum limit of liability for that "insured", for all damages resulting from any one accident, shall not exceed the highest applicable limit of liability under any insurance providing coverage to that "insured" as a named insured.


[(Emphasis added).]


In applying paragraph a of the foregoing endorsement, plaintiff is not a named insured under the policy. Under paragraph b, plaintiff is named as an insured under another policy. Under paragraph c, plaintiff's special insurance policy has no UM coverage, while IFA's standard policy has $50,000/$100,00 in coverage. The question then is whether the policies provide similar coverages because "similar coverage" is required for paragraph b and c to apply. 
We are satisfied that the step-down provision does not apply to exclude coverage for plaintiff under the IFA policy because the policies do not offer similar coverages. We recently interpreted a similar step-down provision in a standard personal automobile insurance policy to determine whether the step-down provision applied in the context of UIM coverage. In Rivera v. McCray445 N.J. Super. 315, 323-24 (App. Div. 2016), we reversed a trial court decision that denied UIM coverage. There, a family member who was separately insured under a special automobile insurance policy sought UIM coverage under her mother's standard automobile insurance policy because she was injured while operating her mother's vehicle. Id. at 317. We noted that "a step-down clause in an insurance policy can restrict the amount of UIM coverage available to an individual who is not named in that policy to the limit of UIM coverage that the individual may recover under his or her own insurance policy." Id. at 319 (quoting Pinto v. N.J. Mfrs. Ins. Co.183 N.J. 405, 413 (2005), superseded in part by N.J.S.A. 17.28-1.1(f) (prohibiting step-down provisions in certain business auto insurance policies)). We also observed that a UIM step-down provision can be enforced if its language is clear and unambiguous. Ibid. (citing Temple Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh224 N.J. 189, 200 (2016)). However, in Rivera, we declined to "step-down" the standard policy with UIM coverage to the special insurance policy that had no UIM coverage. Id. at 320. 
Like the policy at issue here, the term "similar coverage" was not defined in Rivera. The word "similar" is "generally interpreted to mean that one thing has a resemblance in many respects, nearly corresponds, is somewhat like, or has a general likeness to some other thing . . . although in some cases 'similar' may mean 'identical' or 'exactly alike.'" Id. at 321-22 (quoting Fletcher v. Interstate Chem. Co.94 N.J.L. 332, 334 (Sup. Ct. 1920) aff'd o.b.95 N.J.L. 543 (E. & A. 1921)). In Rivera, we found that the policy did not provide "similar coverage" because it did "not provide any form of 'UIM coverage' whatsoever." Id. at 322. As such, we held that the step-down provision did not apply to Rivera "because she [was] not a named insured under another policy 'providing similar coverage.'" Id. at 323. 
IFA's UM Limit of Liability Endorsement uses almost identical language to that used in the Rivera policy. We agree that plaintiff's special insurance policy had no UM coverage. However, we reject the notion that a policy, which by definition has no UM coverage, is then "similar" to the IFA policy that included UM coverage up to certain limits. The policies are not "similar" in coverage when one provides UM coverage and the other is prohibited by statute from providing that coverage. 
We discern no lack of fairness in providing plaintiff UM coverage under IFA's policy. An insured may have coverage under multiple policies that offer UM. N.J.S.A. 17:28-1.1(c) prohibits stacking the policies, but provides instead that "any recovery shall not exceed the higher of the applicable limits of the respective coverages," meaning that a covered individual might receive a higher limit of coverage under a policy he did not purchase. In certain other instances, automobile insurance policies may be "deemed" to include certain provisions that have not been purchased. See N.J.S.A. 17:28-1.4 ("deeming" a policy to include PIP coverage and the verbal threshold). Moreover, in construing the IFA policy to provide coverage, the claims exposure remains with the insurer and not with the Unsatisfied Claim and Judgment Fund (UCJF), which pays claims of victims of uninsured motor vehicle accidents, but is a "remedy of last resort." Sanders v. Langemeier199 N.J. 366, 379 (2009). See also N.J.S.A. 17:30A-2.1.
The issue of coverage under the UCJF is not before us and we expressly do not decide it. In Sanderssupra199 N.J. at 380, the Court dismissed plaintiff's complaint against the UCJF for PIP coverage because his special insurance policy provided for emergency PIP coverage. The Court did not address whether the UCJF would be available for a special automobile insurance policy holder who was uninsured because of the absence of UM coverage. -------- 
Therefore, plaintiff is not excluded from UM coverage under the IFA policy, because plaintiff's special automobile insurance policy does not provide "similar coverage" to that of the IFA policy, making IFA's UM Limitation of Liability Endorsement inapplicable. 
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

Sunday, December 18, 2016

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. S.G.IN THE MATTER OF A.G. AND G.W.G. A-2533-14T3


 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. S.G.IN THE MATTER OF A.G. AND G.W.G. 
A-2533-14T3 
Defendant S.G. appeals the trial court's finding that she abused or neglected her two-year-old daughter, in violation of N.J.S.A. 9:6-8.21(c). The trial court found that because defendant permitted drug use and drug dealing in the home where she and her daughter resided, and took no discernable steps to mitigate her daughter's exposure, her conduct was reckless and put her child at substantial risk of harm. 
No witnesses testified at the fact-finding hearing. The parties agreed to forego the presentation of witnesses and to have the trial court decide material facts in dispute based solely on redacted copies of a police report detailing the events leading up to and occurring on the date of the drug raid and investigation summaries prepared by the Division of Child Protection and Permanency. 

Since a determination of abuse and neglect requires a fact-sensitive analysis of particularized evidence, we hold that witness testimony was necessary to provide the court with the necessary facts to determine whether defendant exercised the requisite minimum degree of care under the circumstances. Merely reciting information found in redacted documentary evidence does not constitute fact-finding. This is especially so when there are unresolved and disputed details regarding facts of consequence to the determination of an abuse or neglect finding. Thus, although the parties acquiesced to a trial "on the papers," the court would have been better equipped to perform its role as fact-finder had these matters been developed more fully with evidence at a testimonial hearing. 

Sunday, December 11, 2016

DEBRA WARREN, ET AL. VS. CHRISTOPHER P. MUENZEN M.D., ET AL. A-1949-15T4


DEBRA WARREN, ET AL. VS. CHRISTOPHER P. MUENZEN M.D.,
          ET AL.
A-1949-15T4
In 2009, the Legislature amended the Survivor Act, N.J.S.A. 2A:15-3, for the first time including a statute of limitations requiring "[e]very action" under the Act "be commenced within two years after the death of the decedent . . . ." The 2009 Amendment also provided that if the death was a homicide, an action against "a defendant [who had] been convicted, found not guilty by reason of insanity or adjudicated delinquent . . . may be brought at any time." In this regard, the 2009 Amendment mirrored an earlier amendment to the Wrongful Death Act (the WDA).
We granted leave to appeal in this case, in which plaintiff, executrix of her husband's estate, filed a medical malpractice complaint alleging causes of action under the Survivor Act and the WDA. The complaint was not filed within the two-year statute of limitation applicable to bodily injury, N.J.S.A. 2A:14-2, but was filed within two years of the decedent's death. In reversing the motion judge's denial of partial summary judgment to defendant on the Survivor Act claims, we concluded that construing the 2009 Amendment literally would lead to absurd results, contrary to the Legislature's stated intention when adopting the 2009 Amendment and contrary to a number of statutes of limitation found elsewhere in Title 2A. 

MARK R. KRZYKALSKI, ET AL. VS. DAVID T. TINDALL A-2539-14T3

MARK R. KRZYKALSKI, ET AL. VS. DAVID T. TINDALL
          A-2539-14T3/A-2774-14T3(CONSOLIDATED)
Plaintiff commenced this personal injury suit against defendant, whose vehicle rear-ended plaintiff's, as well as a fictitious defendant, an unknown driver, who had cut across the lane in which plaintiff was driving to make a left turn. The
page2image20312 page2image20472 page2image20632

trial judge permitted the jury to determine whether both defendant and the unknown driver were negligent and, if so, to ascertain their respective responsibility for plaintiff's injuries; both were found negligent, and the unknown driver was found 97% responsible. The court held that the trial judge properly allowed the jury to apportion responsibility between the known and unknown defendants, extending Cockerline v. Menendez, 411 N.J. Super. 596 (App. Div.), certif. denied, 201 N.J. 499 (2010), which differed only because, in Cockerline, the plaintiff had already settled with the UM insurer and thereby fixed the unknown driver's contribution, and here no such settlement was reached and no proceedings had occurred with respect to the UM carrier.
     Judge Leone filed a concurring opinion.

Sunday, December 4, 2016

HUNY & BH ASSOCIATES INC, ET AL. VS. AVI SILBERBERG, ET AL. A-4569-15T1


HUNY & BH ASSOCIATES INC, ET AL. VS. AVI SILBERBERG,
          ET AL.
A-4569-15T1
Our court has split on the question whether an order denying intervention as of right under Rule 4:33-1 is appealable as of right as a final order. Compare Grober v. Kahn, 88 N.J. Super. 343 360 (App. Div. 1965) (order appealable as a right), rev'd on other grounds, 47 N.J. 135 (1966), with Gov't Sec. Co. v. Waire, 94 N.J. Super. 586, 588-89 (App. Div.) (characterizing appeal as interlocutory, without discussing Grober), certif. denied, 50 N.J. 84 (1967). In this case, we deem it consistent with New Jersey practice and policy to treat the denial of a motion to intervene as of right as an interlocutory order, for which there is no right to appeal. We conclude that federal practice, upon which the Grober panel relied, is not a persuasive model.
In a dissenting opinion, Judge Fisher agrees there is no right to appeal from the denial of a motion to intervene as of right. But, rather than dismiss the appeal, he would grant leave to appeal, stating that the court should liberally indulge applications for interlocutory review of such orders. 

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO VS. NEW JERSEY CIVIL SERVICE COMMISSION I/M/O JOB BANDING FOR SOFTWARE DEVELOPMENT SPECIALIST 1

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO VS. NEW
          JERSEY CIVIL SERVICE COMMISSION
          I/M/O JOB BANDING FOR SOFTWARE DEVELOPMENT
          SPECIALIST 1 AND 2, AND NETWORK ADMINISTRATOR 1 AND 2,
          OFFICE OF INFORMATION TECHNOLOGY
          I/M/O CHANGES IN THE STATE CLASSIFICATION
          PLAN AND JOB BANDING REQUEST, DEPARTMENT OF
          TRANSPORTATION
          A-4912-13T3/A-3041-14T3/A-0230-15T3/A-0232-15T3/ A-
          0274-15T3/ A-0275-15T3 (CONSOLIDATED)
page1image14848 page1image15008 page1image15168 page1image15328 page1image15488 page1image15648 page1image15808 page1image15968 page1image16128 page1image16288
New Jersey State Legislature and other parties
The
challenged several administrative agency decisions rendered by the Civil Service Commission (CSC) pertaining to a Job Banding Rule (the Rule), N.J.A.C. 4A:3-3.2A. The CSC adopted and implemented the Rule after the Legislature invoked its veto power, pursuant to N.J. Const. art. V, § 4, ¶ 6 (the Legislative Review Clause), finding in numerous concurrent resolutions that the Rule conflicted with the Civil Service Act (CSA), N.J.S.A. 11A:1-1 to 12-6, which incorporated the text of N.J. Const. art. VII, § 1, ¶ 2.


We concluded that the Legislature is entitled to substantial deference when it exercises its constitutional power to invalidate an administrative rule or regulation pursuant to the Legislative Review Clause. We held, however, that we may reverse the Legislature's invalidation of an administrative executive rule or regulation if (1) the Legislature has not complied with the procedural requirements of the Legislative Review Clause; (2) its action violates the protections afforded by the Federal or New Jersey Constitution; or (3) the Legislature's concurrent resolution amounts to a patently erroneous interpretation of "the language of the statute which the rule or regulation is intended to implement."
We reversed the decisions and concluded that the Legislature validly exercised its authority under the Legislative Review Clause. We therefore set aside the Rule, in all of its amended forms. 

Sunday, November 27, 2016

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. G.S. AND K.S. IN THE MATTER OF A.S. AND B.S. A-5222-15T2/


NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY
          VS. G.S. AND K.S. IN THE MATTER OF A.S. AND B.S.
          A-5222-15T2/A-5223-15T2 (CONSOLIDATED)
We review the Family Part's series of orders that concern the potential need to disqualify one or both staff attorneys from the Office of Parental Representation ("OPR") who respectively represent the father and the mother in defending this child welfare case. The conflict-of-interest questions were prompted by defendants' advocacy of competing parenting plans for the future care of their twin children.
With some modification, we affirm the trial judge's determination to conduct a hearing to explore the conflict and waiver issues that arose in this particular case.
We agree with the OPR, the Office of Law Guardian, and the amicus New Jersey State Bar Association that, with appropriate screening measures, the law does not categorically prohibit or even presumptively disfavor two staff attorneys working out of the same OPR regional office from separately defending each of the parents in child welfare cases. In addition, when a significant divergence arises between the parents during the course of such litigation, the actual or potential conflict often may be mutually waivable by those clients, with appropriate consultation and substantiation of that waiver.
We further conclude that the trial court has an appropriate institutional role in assuring that the zealous independence of the staff attorneys will not be compromised, and that the confidentiality of client communications and attorney work product will be scrupulously maintained. The court retains the authority and discretion to conduct a hearing to explore such matters on a case-by-case basis to address specific instances where particularized concerns have arisen about the propriety of ongoing representation by the staff attorneys or the sufficiency of any client waivers.