SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 0106

- 17T2 CHRISTOPHER COX, Plaintiff

- Appellant,

v. KRYSTAL TOMASSO, NJM INSURANCE GROUP, and/or NEW JERSEY REINSURANCE GROUP, Defendants, and
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Defendant

- Respondent

.

______________________________ __

Argued October 11, 2018

– Deci d ed November 1, 2018
Before J udges Reisner and Mawla

. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L

- 1585

- 16

. Joseph P. Grimes argued the cause for appellant

.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

- 0106

- 17T2 Malcolm I. McPherson argued the cause for respondent (Hoagland, Longo, Moran, Duns t & Doukas, LLP , attorneys; Malcolm I. McPherson, of counsel and on the brief).
PER CURIAM Plaintiff Christopher Cox appeals from a June 23, 2017 order granting summary judgment in favor of defendant, New Jersey Manufacturers Insurance Company (NJM). 1 We affirm. Plaintiff was injured when a car driven by Krystal Tomasso struck the motorcycle he was riding. Plaintiff had insured his motorcycle through Rider Insurance Company (Rider) under a policy with a $1 5,000 liability limit, which was $10,000 less than the $25,000 limit Tomasso had on her car. Thus, Tomasso's vehicle was not underinsured compared to the coverage on plaintiff's motorcycle. See N.J.S.A. 17:28

- 1 .1 (e)(1) (defining underinsured motor vehicle). 2 However, plaintiff sought underinsured motorist (UIM) benefits under a $500,000

- limit policy he had obtained from NJM to cover his pick

- up truck

.

1 The co mplaint improperly named two other entities in addition to NJM.

2 Tomasso tendered the $25,000 available under her policy, and plaintiff settled with her before filing his notice of appeal.3 A

- 0106

- 17T2

The liabi lity section of the NJM policy specifically stated that NJM did not provide liability coverage for "the ownership, maintenance or use" of a ny vehicle with fewer than four wheels. In other words, NJM did not provide liability coverage for plaintiff 's motorcycle, or for plaintiff while he was riding a motorcycle. 3 Hence, he obtai ned a separate policy from Rider to cover his motorcycle. Plain tiff was the named insured on that policy. The UIM section of the NJM policy (paragraph A.7

. ) explicitly excluded
coverage for plaintiff " [w]hile occupying any vehicle insured by another motor vehicle policy in which you or a family member are a named ins ured." That provision further stated: "However, this exclusion . . . does not affect UM/UIM coverage for minimum limits required by New Jersey law for liability coverage as set forth in N.J.S.A. 39:6A

- 3

. " 4 NJM denied plaintiff's UIM claim on the
basis of this exclusion, because he was the named insured on the Rider motorcycle policy, and Tomasso's vehicle had limits higher than the $15,000 minimum required by law.

3 The exclusion had an exception, not relevant here, for us e of a vehicle in a medical emergency.

4 This statutory section, which was underlined in the policy, requires minimum liability coverage of $15,000 per person injured. N.J.S.A. 39:6A

- 3(a).4 A

- 0106

- 17T2

The trial judge granted NJM summary judgment, reasoning that the policy exclusion was unamb iguous and was clearly applicable to plaintiff's situation.
He also concluded that the exception for the minimum required limits for liability coverage did not render the exclusion ambiguous. The trial judge rejected plaintiff's argument that the NJM Buy er's Guide created an ambiguity in the policy. On this appeal, plaintiff presents the following points of argument: Point One : NJM's Policy as Exclusion [A.] 7 is unclear, ambiguous, contrary to the reasonable expectations of the insured and contrary to p ublic policy. Point Two: The lower Court erred in failing to find that the Buyer's Guide provided by Insurer which did not mention the UIM step down provisions of the policy conflicted with Insurer's policy language thereby creating an ambiguity regardin g the enforceability of the step

- down provision. Point Three : The lower Court erred in finding that UIM coverage follows the vehicle and not the insured. On appeal, we owe no deference to the trial court's legal interpretations, including the interpre tation of an insurance contract. See Polarome Int 'l , Inc. v. Gre e nwich Ins. Co. , 404 N.J. Super. 241, 259

- 60 (App. Div. 2008). Having engaged in de novo review, we find no merit in any of plaintiff's arguments. We affirm substantially for the reasons st ated by the trial judge , and for the reasons5 A

- 0106

- 17T2

stated in this opinion. Except as addressed herein, p laintiff's appellate arguments are without sufficient merit to warrant additional discussion. R. 2:11

- 3(e)(1)(E). In construing an insurance policy, we bea r in mind that insurance policies are contracts of adhesion drafted by experts but read by consumers who are lay
persons. See Polarome , 404 N.J. Super. at 258

. Accordingly, we strive to give effect to the insured's reasonable expectations, and we constru e genuinely ambiguous clauses favorably to the insured. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. , 224 N.J. 189, 200 , 205 (2016). Nonetheless, an "insurance policy that is clear and unambiguous should be enforced as written." Universal Und erwriters Ins. Co., Recreational Prod. Ins. Div. v. N.J. Mfr s . Ins. Co. , 299 N.J. Super. 307, 312 (App. Div. 1997). If the policy's plain language is unambiguous, "we will not ' engage in a strained construction to support the imposition of liability ' or w rite a better policy for the insured than the one purchased." Templo , 224 N.J. at 200 (citation omitted)

. We agree with the trial judge that the NJM policy is not genuinely ambiguous, and the trial judge 's interpretation of the policy is consistent with t he insured's reasonable expectations.6 A

- 0106

- 17T2

Plaintiff misplaces reliance on Worldwide Underwriters Ins urance Co. v. Brady , 973 F.2d 192 (3d Cir. 1992), a case he cites in support of an argument presented to us for the first time in his reply brief

. Worldwide c oncerned a liability insurance policy that contained an exclusion for injuries to family members of the insured. Id. at 192. The Supreme Court of Pennsylvania had previously found the exclusion violated the public policy underlying that s tate's insurance statutes

. 5 Id. at 192

- 93 n .2. However, the Pennsylvania Insurance
D epartment later permitted the exclusion so long as it provided at least the minimum coverage required by state law. Id. at 193

. Reflecting that exception, the policy language read as fo llows:

We do not provide Liability Coverage for any person for bodily injury to you or any family member to the extent that the limits of liability for this coverage exceed the limits of liability required by the Pennsylvania Motor Vehicle Financi al Respon sibility Law of 1984. [ Ibid. ] The Third Circuit concluded that because the exclusion did not reveal " the dollar amount limit" set forth in the cited statute, the policyholder would have

5 New Jersey courts have reached a similar conclusion with res pect to auto insurance policies

. See Zacarias v. Allstate Ins. Co. , 168 N.J. 590, 599 (2001) (citing Kish v. Motor Club of Am. Ins. C o. , 1 08 N.J. Super. 405 (1970)).7 A

- 0106

- 17T2

no idea what the clause meant

. Id. at 196. The court further reaso ned :

" [c] onsidering, as we should, the document as a whole, we find that the exclusion does not inform the insured that full coverage for his family members was compromised ." Ibid. (citation omitted). Relying on Worldwide , plaintiff argues that the statu tory reference in the NJM policy likewise renders the A.7 exclusion ambiguous. Worldwide is not binding on us. However, we also conclude it is not on point here. U nlike the policy provision in Worldwide , the NJM exclusion began with a complete sentence clearly stating a general exclusion. A reasona ble reader would understand the exclusion as meaning that if , as here, he had insured a vehicle with another insurance company and was a named insured on that policy , NJM would not provide UIM coverage for the use of that vehicle. In that context, the second sentence , stating an exception to the exclusion , for "minimum" limits required by law , would not lead a reasonable reader to believe that NJM would provide $500,000 in UIM coverage for the use of such a ve hicle

. Moreover, i n Worldwide , the exclusion denied the insured one of the most central and legally

- required benefits of auto insurance

– liability coverage

– in a way that the average reasonable consumer would not expect. By contrast, here, it should h ave come as no surprise to plaintiff that NJM would not provide8 A

- 0106

- 17T2

UIM coverage when he was riding a motorcycle for which he had purchased separate coverage from another insurer, particularly when the NJM policy explicitly stated that it did not cover vehicle s with fewer than four wheels (e.g., motorcycles). See DiOrio v. N

. J

. Mfrs. Ins. Co. , 79 N.J. 257, 269

- 70 (1979) (upholding an exclusion for a regularly

- used vehicle that was not listed on the policy). While we do not conclude that the result here is req uired by public policy, as opposed to by the clear wording of the A.7 clause, it is consistent with the purpose of the UIM statute , N.J.S.A. 17:28

- 1.1(b) . That statute limits the purchase of UIM coverage to the amount of liability insurance the insured ha s purchased. Ibid. ; see Aubrey v. Harleysville Ins. Co. , 140 N.J. 397, 40 2 (1995). Thus, an insured can obtain more UIM coverage by buying more liability insurance. This provides greater protection for both the insured and anyone the insured injures wit h his or her vehicle. In buying only a minimum

- liabil ity policy for his motorcycle, which was his only liability coverage for that vehicle, plaintiff provided only $15,000 in liability protection for himself and in potential financial recovery for anyone he injured with his motorcycle . We9 A

- 0106

- 17T2

perceive no viola tion of public policy in limiting plaintiff to UIM coverage equal to the liability insurance he purchased for the motorcycle

. 6
Plaintiff's reliance on Universa l is also misplaced. Universal was a dis pute between two insurance companies. 299 N.J. Super. at 310

- 11. In that case, as here, the insured had an NJM liability policy covering his automobiles but not his motorcycle, which was separately insured by Universal Underwriters
Insurance Co

. (Univers al). Id. at 311. The insured got into an accident while riding his motorcycle, and Universal claimed that NJM should contribute to his UIM coverage. Ibid. As here, the liability section of the NJM policy excluded liability coverage for motorcycles, i.e ., for motorized vehicles with fewer than four wheels. Id. at 311

- 12 . However, unlike this case, in Universal , the UIM section of the NJM policy had no exclusion for injury to an insured while using a vehicle insured under another policy

. Id. at 313

- 15. Under those circumstances, the court rejected NJM's argument that either the coverage parity provisions of N.J.S.A. 17: 28

- 1.1(b), or the motorcycle

6 We need not reach, and do not intend to address, factual situations not presented in this case. We remind readers that this opinion is unpublished, is not precedent ial , and per Rule 1:36

- 3, should not be cited by any court

. See Wright v. Bank of America, N.A. ,
__ N.J. Super. __, __ n.5 (App. Div. 2018) (slip op. at 8 n.5).10 A

- 0106

- 17T2

exclusion provision in the liability section of the policy would operate to limit the insured's right to U IM coverage for the motorcycle accident. 7 Id. at 318,
322

- 23. The court concluded :

[S] ince NJM's policy provides UIM coverage for injuries sustained by an insured in an accident with an underinsured motorist, regardless of whether the vehicle the insured is occupying is insured under its policy, and NJM by its policy terms agrees to share in the loss if other insurance is applicable, NJM must participate in the loss. [ Id. at 315.] Universal is not on point here, because the NJM policy in this case has a n unambiguous exclusion for situations where the insured is using a vehicle he

owns, on which he is the named insured on another insurance policy

. For that reason, plaintiff's argument that UIM coverage is "linked to the injured person, not the covered ve hicle," is unavailing. (quoting Aubrey , 140 N.J. at 403) . In this case, the policy language specifically excludes UIM coverage to the injured

7 Judge La ndau's concurring opinion noted that, in effect, the insured "may have succeeded in buying U I M coverage for motorcycle accidents at regular automobile rates, without the knowledge of the automobile liability carrier." Id. at 323. Judge Landau suggested t hat the NJM policy could have included language specifically limiting its UIM coverage to "accidents for which liability coverage also exists " under the NJM policy. I d. at 324. He concurred in the result because there was no such limiting language.11 A

- 0106

- 17T2

person, albeit based on his use of a vehicle which he insured under a separate policy.
Affirmed.