SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1969-15T3

MANUEL SANCHEZ and 

YOLANDA SANCHEZ,

Plaintiffs-Appellants/

Cross-Respondents,

v.

NEW JERSEY TURNPIKE

AUTHORITY, PORFIRIO I.

RAMON and MARIA E. RAMON, 

Defendants-Respondents,

and

NEW JERSEY MANUFACTURERS 

INSURANCE, 

Defendant-Respondent/

Cross-Appellant.

______________________________

Argued October 17, 2017 – Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New 

Jersey, Law Division, Middlesex County, Docket 

No. L-8597-12.

Thomas De Seno argued the cause for 

appellants/cross-respondents.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

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.

November 16, 2017
2 A-1969-15T3

Gage Andretta argued the cause for respondent 

New Jersey Turnpike Authority (Chiesa 

Shahinian & Giantomasi, PC, attorneys; Bruce 

Ettman, on the brief).

John A. Camassa argued the cause for 

respondent/cross-appellant New Jersey 

Manufacturers Insurance Company (Camassa Law 

Firm, PC, attorneys; Mr. Camassa, of counsel; 

Christopher M. Brady, on the briefs).

PER CURIAM

Plaintiffs Manuel and Yolanda Sanchez appeal from an order 

dated December 4, 2015, denying their motion for reconsideration 

of a September 24, 2015 order, which in effect determined that New 

Jersey Manufacturers Insurance Company (NJM) did not owe 

plaintiffs underinsured motorist (UIM) coverage for an automobile 

accident. NJM filed a protective cross-appeal from an October 23, 

2015 order denying its motion for a new trial on damages, claiming 

errors in the jury instructions. 

On plaintiffs' appeal, we vacate the September 24, 2015 and 

December 4, 2015 orders, and we remand the matter to the trial 

court for a plenary hearing to decide material factual disputes 

concerning the coverage issue. NJM failed to perfect the crossappeal by providing us with all of the pertinent trial transcripts.

Without the entire trial record, including the testimony of the 

damages experts, we cannot determine whether any alleged charging 
3 A-1969-15T3

errors had a clear capacity to produce an unjust result. See R.

2:10-2. Accordingly, we dismiss the cross-appeal. 

I

In 2011, Manuel Sanchez,

1 a State Trooper, was injured in an 

auto accident while he was on duty, driving a vehicle owned and 

insured by the New Jersey Turnpike Authority (the Authority). The 

other driver, Porfirio Ramon, had a $15,000 auto insurance policy. 

After settling with Ramon for the $15,000 policy limit, plaintiffs 

sought UIM coverage from the Authority and from Manuel's personal 

auto insurance policy issue by NJM. There was no dispute that the 

NJM policy provided $300,000 in UIM coverage. A dispute arose as 

to whether the Authority provided $15,000 or $2 million in UIM 

coverage. 

The dispute was based on the following unusual set of facts.

The Authority was self-insured, but had procured an excess policy 

from Chartis Claims, Inc.2 for amounts over $2 million.

Endorsement No. 23 of that policy, which was titled 

 

1 Manuel's wife Yolanda sought per quod damages. We refer to Mr. 

and Mrs. Sanchez collectively as plaintiffs. For clarity, and 

intending no disrespect, we refer to them individually by their 

first names.

2 The Chartis policy indicates that coverage was being provided by 

"National Union Fire Insurance Company of Pittsburgh, Pa." 

However, the parties have referred to the insurer as "Chartis" and 

we will do so as well. 
4 A-1969-15T3

"Uninsured/Underinsured Motorists Coverage Endorsement," could be 

construed to mean that Chartis was providing UIM coverage for 

occupants of the Authority's vehicles on an excess basis, and that 

the Authority was self-insured for $2 million in UIM coverage.

The endorsement included the following sentence: 

"Uninsured/Underinsured Motorists Retained Limit $2,000,000 

INSURING AGREEMENT." The Authority's position was that the Chartis 

policy only covered third-party claims, not UIM claims. The 

Authority contended that Endorsement No. 23, including the 

retained limit language concerning UIM coverage, was insurance 

company boilerplate, which was not applicable to the type of 

coverage the Authority had purchased from Chartis and should not 

have been included in the policy. 

While the UIM litigation was pending, plaintiffs filed a 

motion to amend the complaint to add Chartis as a defendant. The 

assigned motion judge (the first judge) did not decide whether the 

Chartis policy in fact provided UIM coverage or what amount of UIM 

coverage the Authority provided. Rather, he reasoned that, even 

if the Chartis policy included UIM coverage, plaintiffs failed to 

demonstrate that their damages exceeded $2 million, so as to

trigger any "umbrella coverage" the Chartis policy provided.

Accordingly, the judge denied the motion because the amendment 

would have been "futile."
5 A-1969-15T3

It appears from the record that the language in the Chartis 

endorsement had created issues in other auto accident cases 

involving the Authority, concerning the level of the Authority's 

underlying UIM coverage. At his deposition, the Authority's deputy 

executive director, John O'Hern, testified that the Authority's 

self-insured retention limit for UIM coverage was $15,000, but he 

testified that there was no written documentation setting that 

coverage limit. O'Hern testified to his understanding that UIM 

coverage of $15,000 per individual and $30,000 per accident was 

statutorily required. O'Hern also testified to his understanding 

that the Authority never had UIM excess coverage from Chartis and 

Endorsement No. 23 was "a mistake." He noted that section O of 

the exclusions section of the basic Chartis policy stated that the 

policy did not apply to the insured's UIM obligation. 

O'Hern acknowledged evidence that in two prior cases 

involving injured State Troopers, the Authority had settled UIM 

claims for considerably more than $15,000. He testified that in 

both of those cases, the Authority's initial litigation position 

had been that its UIM limits were $15,000/30,000. The minutes of 

the Commission meeting concerning one of the settlements indicate

that the plaintiff in that case claimed that he suffered a

traumatic brain injury. However, at his deposition, O'Hern also 

recalled a more recent case in which the Authority had litigated 
6 A-1969-15T3

its obligation to provide UIM coverage and had obtained a Law 

Division decision holding that its UIM coverage was limited to 

$15,000. According to O'Hern, that decision arose from a court 

hearing in which he testified. 

On February 15, 2012, the Authority's acting director of law 

authored a memo indicating that the Authority's limit had always 

been $15,000, but that the Chartis policy language had created an 

issue on that point. He recommended that the Authority's Board 

of Commissioners raise the UIM self-insured limit to $250,000 to 

adequately protect the Authority's employees. He also recommended 

asking Chartis to delete the controversial language from its 

policy. On February 28, 2012, the Commissioners approved that 

recommendation, voting to change the Authority's UIM self-insured 

retention limit to $250,000 and authorizing the executive director 

to ask Chartis to remove Endorsement No. 23 from its policy.

3 

According to O'Hern, the Authority's current umbrella policy does

not contain a provision for UIM coverage. 

Despite knowing that there was an issue over the Authority's 

self-insured limit, plaintiffs settled with the Authority for 

$67,000. The settlement agreement recited that it was without 

prejudice to the Authority's position that at the time of the 

 

3 The memo and the Commission minutes refer to Endorsement No. 

"24" but we conclude this is a typographic error.
7 A-1969-15T3

accident, it only provided $15,000 in UIM coverage, regardless of 

the terms of any existing excess policy. Plaintiffs then proceeded 

to trial against NJM, before a second judge. 

Shortly before the trial, NJM filed a motion asking the trial 

court to declare that the Authority's UIM coverage was $2 million, 

and that NJM's policy was excess to the coverage provided by the 

Authority. Instead of deciding the coverage issue, the second 

judge declined to entertain the motion and proceeded with the 

trial. The jury returned a verdict of $250,000 in damages for 

Manuel and $50,000 in per quod damages for Yolanda. After the 

trial, the second judge determined that the Authority's UIM selfinsured retention limit was $2 million and that, pursuant to the 

language of the NJM policy, NJM's coverage was excess to that 

provided by the Authority. In effect, that determination vitiated 

the $300,000 jury verdict against NJM. 

II

On this appeal, plaintiffs contend that the language in the 

Chartis policy was incorrect, and that the language of an excess 

policy cannot legally determine the insured public entity's 

underlying coverage limit. The Authority supports plaintiffs' 

position. The Authority argues, in the alternative, that it had 

no obligation to provide any UIM coverage and did not include such 
8 A-1969-15T3

coverage in its self-insured retention, or that its UIM obligation 

was limited to $15,000. 

Ordinarily, the interpretation of an insurance policy is a 

contract question that presents solely a legal issue. See Powell 

v. Alemaz, Inc., 335 N.J. Super. 33, 37 (App. Div. 2000). However, 

in this case, where the Authority was self-insured, the issue is 

not so simple. After reviewing the record, we conclude that there 

is a material factual issue concerning the Authority's UIM coverage 

at the time of the 2011 accident. The Chartis policy only provides 

coverage that is excess to underlying existing coverage. It 

neither provides primary coverage nor creates any underlying 

coverage. See Arico v. Twp. of Brick, 281 N.J. Super. 471, 475 

(App. Div.), certif. denied, 142 N.J. 515 (1995). Language in the 

Chartis policy concerning the Authority's amount of underlying UIM 

coverage might constitute some evidence of that coverage. However, 

the Chartis policy language cannot not create such underlying

coverage if it does not otherwise exist. 

There are factual issues concerning how the contested 

language came to appear in the Chartis policy; whether the 

Authority negotiated or paid for any UIM or UM coverage from 

Chartis; or whether Endorsement No. 23, or at least the included 

language about the retention amount, was simply boilerplate that 

Chartis included in error. We understand the first judge's 
9 A-1969-15T3

reasoning in denying plaintiff's motion to add Chartis as a party, 

however, Chartis may have records or employees that can shed light 

on the coverage issue. If Chartis will not voluntarily produce 

its information on remand, it may be added as a party for discovery 

purposes only. 

The record also presents factual issues concerning the 

Authority's policies and its past conduct with respect to providing 

UIM coverage to persons driving the Authority's vehicles. It is 

difficult to comprehend how a public agency such as the Authority 

could have no contemporaneous records defining its self-insured 

UIM coverage. Because there is no statutory requirement for UIM 

coverage, it is also unclear whether or how the Authority could

provide $2 million in UIM coverage, without a public vote of its 

Commissioners authorizing that coverage.

4 See N.J.S.A. 17:28-1.1

(requiring auto insurance policies to include UM, but not UIM, 

coverage); Downey v. City of Elizabeth, 273 N.J. Super. 335, 338-

39 (App. Div. 1994) (self-insured public entity need not provide 

UIM coverage). It is further unclear why the Authority settled 

UIM claims for amounts so far in excess of what it claimed was its

 

4 NJM's appendix contains the minutes of a July 27, 2010 Commission 

vote authorizing the renewal of the Chartis umbrella policy, but 

the resolution only refers generally to auto liability excess 

coverage and makes no mention of authorizing any underlying UIM 

coverage. 
10 A-1969-15T3

self-insured limit of $15,000. The parties should have the 

opportunity to present and cross-examine witnesses on the factual

issues and the trial court should have the opportunity to gauge 

their credibility. 

In response to our questions at oral argument, the Authority's 

counsel conceded that an evidentiary hearing was required, while 

counsel for NJM and plaintiffs insisted that their respective 

positions should prevail without a hearing. In fairness to the 

second judge, we acknowledge that none of the parties specifically 

asked for a hearing in the trial court. However, in view of the 

amount of money at stake here, and the disputed factual and 

credibility issues, we conclude that a plenary hearing is 

required.5 

Accordingly, we vacate the September 24, 2015 and December 

4, 2015 orders, and we remand for further proceedings consistent 

with this opinion. We do not retain jurisdiction.

Dismissed in part, vacated in part and remanded.

 

5 In light of our disposition of the appeal, we do not address the 

parties' additional arguments.