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President v. Jenkins2/6/2003
a well established principle that courts will not engage in creating ambiguity in construing insurance contracts where none exists, or in fashioning a better contract for either party than they themselves have made. Universal Underwriters v. CNA Ins. Co., 308 N.J. Super. 415, 420 (App. Div. 1998); Royal Ins. Co. v. Rutgers Cas. Ins. Co., 271 N.J. Super. 409, 416 (App. Div. 1994) (quoting Flynn v. Hartford Fire Ins. Co., 146 N.J. Super. 484, 488 (App. Div.), certif. denied, 75 N.J. 5 (1977), and citing Kampf v. Franklin Life Ins. Co., 33 N.J. 36 (1960); Kook v. American Surety Co., 88 N.J. Super. 43 (1965)). In the absence of ambiguity, courts are constrained to adhere to the specific language of the policies, which will be given its ordinary meaning. Universal Underwriters, supra, 308 N.J. Super. at 419-420; Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990). As our Supreme Court noted:
hen the terms of an insurance contract are clear, it is the function of a court to enforce it as written and not to make a better contract for either of the parties. (citations omitted). The parties are entitled to make their own contracts. (citations omitted). Absent statutory prohibitions, an insurance company has the right to impose whatever conditions it desires prior to assuming its obligations and such provisions should be construed in accordance with the language used. (citation omitted).
[Kampf, supra, 33 N.J. at 43.] Here the policy language is clear and unambiguous. As previously noted, it plainly indicates that Zurich is "legally obligated to pay because of a claim first made during the policy period arising out of a medical incident which occurred on or after the retroactive date and which is reported to [Zurich] during the policy period." (emphasis added.) The policy equally makes clear that the "retroactive date" is February 1, 1998. Item No. 1b of the declarations page addresses "additional insured physicians" and refers the insured to the "additional insured physician's endorsement." The "additional insured endorsements" applicable to Jenkins under both the original 1998 and renewal 1999 Zurich policies state in bold letters "THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY." The endorsement under the original 1998 policy shows a retroactive date of "2/1/98" and an effective date of "2/1/98". Moreover, Jenkins was issued a binder and a certificate of insurance which, similar to the "additional insured physician's endorsement," named Jenkins as an additional insured with an effective policy date of February 1, 1998. Similarly, the endorsement under the 1999 renewal policy repeats the "retroactive date of "2/1/98" and lists the effective date of renewal as "1/1/99". Furthermore, it is undisputed that a C&R;representative explained to Jenkins that the retroactive date of February 1, 1998 was the effective date of coverage.
Admittedly, the "declarations" page of the 1998 Zurich group policy refers to a January 1, 1998 inception date, however, this policy was issued to GSPA and GSPA is the only insured mentioned in the declarations page. Jenkins' name does not appear anywhere on the declarations page of either the 1998 or 1999 group policy and therefore the January 1, 1998 inception date governing GSPA simply does not apply to Jenkins as an additional insured. See Lehrhoff v. Aetna Cas. & Sur. Co., 271 N.J. Super. 340, 346-47 (App. Div. 1994) (noting that the declarations page is tailored to a particular insured and defines coverage available to the insured named therein). See also Martinez v. John Hancock Mut. Life Ins. Co., 145 N.J. Super. 301, 310 (1976), certif. denied, 74 N.J. 253 (1977) (finding that an insured is under the minimal duty to read his policies and
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