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IFA Ins. Co. v. Levin12/12/1997
OPINION WITHDRAWN
IFA INSURANCE COMPANY, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
HOWARD LEVIN AND MYRNA LEVIN, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND AMGRO INSURANCE COMPANY, AS SERVICING CARRIER FOR THE MARKET TRANSITION FACILITY, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication December 12, 1997.
Richard D. Catenacci argued the cause for appellant/cross-respondent (Connell, Foley & Geiser, attorneys; Mr. Catenacci, of counsel; Brendan Judge, on the brief).
Robert T. Szostak argued the cause for respondents/cross-appellants (m. Mark Mendel, attorney; Mr. Szostak, on the brief).
Before Judges Dreier, Keefe and P.g. Levy. The opinion of the court was delivered by P.g. Levy, J.A.D.
The opinion of the court was delivered by: Levy
The opinion of the court was delivered by
P.G. LEVY, J.A.D.
In this declaratory judgment action, plaintiff, IFA Insurance Company, appeals from a judgment which directed it to provide a certain level of uninsured motorists' (UM) coverage on behalf of defendants' son, Daniel Levin, who died in a car accident in Philadelphia, Pennsylvania as the result of the negligence of an uninsured and intoxicated driver. At the time of the accident, the decedent was twenty-seven years old and had just moved out of his parents' home in Cherry Hill, New Jersey to live in a rented house in Philadelphia. He owned his own car, which was registered in New Jersey and which was insured in New Jersey by defendant Amgro as the servicing carrier for the Market Transition Facility (MTF).
When the accident occurred, the decedent was driving his father's car, which was also registered in New Jersey and which was insured by plaintiff. The UM limit of plaintiff's policy was $100,000, whereas the UM limit of Amgro's policy was $15,000.
After a bench trial, the trial Judge ruled that defendants were entitled to the maximum UM limit of plaintiff's policy. The trial court based this ruling on the language of N.J.S.A. 17:28-1.1(c) and expressly declined plaintiff's invitation to extend the holding of Aubrey v. Harleysville Ins. Cos., 140 N.J. 397, 658 A.2d 1246 (1995), which dealt only with underinsured motorists' (UIM) coverage. Plaintiff appeals from this ruling.
The Judge also ruled that although the decedent was a New Jersey domiciliary at the time of his death, Pennsylvania law would control the calculation of damages that his parents could recover on behalf of his estate. Plaintiff appeals from that portion of the ruling which held that Pennsylvania law controls; defendants cross-appeal from that portion which held that the decedent was a New Jersey resident.
N.J.S.A. 17:28-1.1 mandates that insurance companies provide UM coverage to their insureds. Subsection (c), the provision which is at issue here, was added to the statute by L. 1983, c. 362, ยง 1. It provides as follows:
Uninsured and underinsured motorist coverage provided for in this section shall not be increased by stacking the limits of coverage of multiple motor vehicles covered under the same policy of insurance nor shall these coverages be increased by stacking the limits of coverage of multiple policies available to the insured. If the insured had uninsured motorist coverage available under more than one policy, any recovery shall not exceed the higher of the applicable limits of the respective coverages and the recovery shall be prorated
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