Opinion
DOCKET NO. A-1855-14T2
05-19-2016
NANCY GRANATA AND JOHN CATENACCI, Plaintiffs-Appellants, v. DEMI RASIZER AND ELAINE RASIZER, Defendants, and NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Defendant-Respondent.
Leonard D. Weiss argued the cause for appellants (The Weiss Law Group, attorneys; Marysol Rosado Thomas, on the briefs). James D. Carton, IV argued the cause for respondent (Carton Law Firm, attorneys; Mr. Carton on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman, Leone and Whipple. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-03139-13. Leonard D. Weiss argued the cause for appellants (The Weiss Law Group, attorneys; Marysol Rosado Thomas, on the briefs). James D. Carton, IV argued the cause for respondent (Carton Law Firm, attorneys; Mr. Carton on the brief). PER CURIAM
Plaintiffs Nancy Granata and her husband, John Catenacci, appeal the trial court's November 7, 2014 order granting defendant's motion for summary judgment and denying their motion for summary judgment. We reverse and remand.
Because plaintiff John's claims are derivative from Nancy's claims, we will refer to Nancy as plaintiff for ease of reference.
We summarize the following facts from the record. On October 19, 2011, plaintiff was operating her mother Lynne Granata's vehicle in Freehold. While plaintiff was in traffic, defendant Demi Rasizer's vehicle struck plaintiff's vehicle. Plaintiff suffered injuries as a result of the accident. Lynne's vehicle was insured by defendant New Jersey Manufacturers Insurance Company (NJM) at the time of the accident. Plaintiff did not reside with Lynne, and was not a named insured on Lynne's insurance policy. Plaintiff was not otherwise covered by an automobile insurance policy.
We use Lynne Granata's first name for ease of reference. --------
Plaintiff filed a complaint in the Law Division against defendants Demi Rasizer and her mother, Elaine Rasizer. Elaine Rasizer was insured by Progressive Insurance against automobile liability for up to $15,000, which Progressive offered to plaintiff for her medical expenses. Plaintiff subsequently filed a claim with NJM seeking underinsured motorist (UIM) benefits, pursuant to Lynne's belief that NJM provided her with up to $300,000 in UIM benefits. Plaintiff's claim was denied because the NJM policy had been amended the previous year to include a step-down provision, which reduced uninsured motorist and underinsured motorist (UM/UIM) coverage for non-resident relatives to $15,000. Before the introduction of the step-down provision, the liability limits for UM/UIM coverage available to non-resident relatives was $300,000. Accordingly, because plaintiff had already received $15,000, NJM stated that it would not provide additional coverage. Plaintiff amended her complaint to assert a claim against NJM to compel UIM arbitration, to argue that the NJM policy's new step-down provision was invalid, and to declare that, accordingly, the UIM policy limit is $300,000.
NJM asserts that plaintiff was adequately alerted to the step-down provision because it was included in the revised policy, and described in the "summary of important changes" letter sent to Lynne before her 2010 policy renewal. The "summary of important changes" letter stated in Section III. PART B — "UNINSURED MOTORISTS COVERAGE," and under the subheading "RESTRICTIONS OF COVERAGE": "[w]e have amended the LIMIT OF LIABILITY for an insured who is not a named insured or a family member under our policy to the minimum liability limits required by New Jersey Law." The specific part of the revised policy that this letter references, Part B, covers both UM and UIM incidents and coverage limits. The provision limiting liability is located under the subheading "limit of liability," in subpart (A)(2), and reads as follows: "[i]f an insured is not named insured or family member under this policy, then our maximum limit of liability for that insured, for all damages resulting from any one accident, shall not exceed the minimum limits required by New Jersey law for liability coverage set forth in N.J.S.A. 39:6A-3." The declaration sheet of the revised policy, like the prior declaration sheet, did not specifically mention UIM coverage, but simply stated "UNINSURED MOTORISTS" coverage was $300,000.
Lynne testified during a deposition that she never read the policy or the summary of important changes. Rather, Lynne testified that she called NJM after receiving her renewal packet every year to verify whether there had been any changes to her policy. Lynne indicated that when she called NJM in 2010, she had been told that there was no change in her coverage. Lynne also testified that she read the declaration sheet as listing her UIM coverage at $300,000.
The parties filed cross-motions for summary judgment which were heard on November 7, 2014. Plaintiff's motion was denied and defendant's motion was granted. This appeal followed.
On appeal, plaintiff asserts that the trial court erred in denying her summary judgment motion and granting defendant's motion, because the court did not give all reasonable inferences to the non-movant (in this instance, the plaintiff) in deciding defendant's motion for summary judgment, and that NJM's notice of its step-down provision was insufficient to adequately inform Lynne of the reduction in coverage. We agree that the trial court incorrectly granted defendant's motion for summary judgment and denied plaintiff's motion.
A trial court must grant summary judgment if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Disputed issues that are "of an insubstantial nature" cannot overcome a motion for summary judgment. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 530 (1995).
In assessing whether a fact is material, the trial judge must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 540. We apply the same standard as the trial court when evaluating motions for summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We first evaluate whether there was a genuine issue of material fact; if there was no error in that determination, we also review the trial court's decision for error. See Walker v. Alt. Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987).
Plaintiff asserts that the trial court did not adequately consider Lynne's testimony that she called NJM after receiving the 2010 letter pertaining to the step-down provision or the fact that there was no reduction in the premium applied which might have alerted Lynne of a change. We need not reach those issues, because we find that the summary and the policy failed to advise Lynne of the reduced amount of UIM coverage provided by the revised policy.
The motion judge noted that Lynne did not read her policy and that fact did not dilute the efficacy of the notice from NJM. The court did not rely on Lynne's failure to read the revised policy in reaching its decision, but based its decision on the adequacy of the notification from NJM. We note that, although insureds are expected to read their insurance policies and revisions to those policies, we "impose upon [insureds] such restrictions and conditions as the average insured would ascertain" regardless of whether an insured actually read their insurance policy. Sears Mortgage Corp. v. Rose, 143 N.J. 326, 348 (1993) (quoting Bauman v. Royal Indem. Co., 36 N.J. 12, 25 (1961)). See also Rudolph v. Home Indem. Co., 138 N.J. Super. 125, 135-36 (Law. Div. 1975) (explaining that courts assess insurance contracts as though insureds have read them).
The written notice, if sufficient, should have allowed Lynne to "digest the changes" in her policy, which is what our Supreme Court requires from step-down provision notifications. Skeete v. Dorvius, 184 N.J. 5, 9 (2005). Lynne's failure to read the notice does not absolve NJM of its obligation to fairly notify its policyholders. Had Lynne read the notice she would only have been informed there was a change and she would not have been informed as to the amount of diminished UIM coverage.
Plaintiff asserts that the step-down provision in Lynne's renewed insurance policy documents provided insufficient notice because it was unspecific as to the reduced amount of Lynne's UIM coverage. We agree.
NJM relies on language in Skeete indicating that a summary can give adequate notice of a step-down clause. In Skeete, the policy contained a new step-down clause stating that non-resident relatives received UM/UIM coverage "but only up to a limit of $15,000 per person/$30,000 per occurrence." Id. at 7. Our Supreme Court held that "not every single policy change must be reflected on the declarations sheet." Id. at 6. Rather, the Court stated that when an insurer sends a "cover letter with [a] three page notice outlining the changes [to an insured's policy]," the result is likely to be different from the outcome in Skeete, which affirmed our ruling that an insurer's notification system was insufficient. Id. at 9. In Skeete, the Court concluded that a notification of a step-down clause was insufficient because it was buried in many pages sent to the insured. Ibid. Such is not the case here. Plaintiff was provided a notice outlining the changes in her revised policy in a short, concise "summary of important changes" letter in a smaller packet of documents that directed her to the change in policy.
However, Skeete concerned "the placement of the notice and not its specificity." Ibid. In this case, specificity is the issue; unlike in Skeete, the insurance policy here contains no numerical value in describing the change to Lynne's insurance policy. Because the notice was unspecific as to the amount of UM/UIM coverage the revised policy was providing, plaintiff correctly argues that she should not be subject to the terms of the step-down provision because of its lack of specificity. See Bauman, supra, 36 N.J. at 25; McClellan v. Feit, 376 N.J. Super. 305, 315 (App. Div. 2005).
In Bauman, our Supreme Court explained that the terms of a contract are those that the "average insured would ascertain" from reading the insurance policy. Bauman, supra, 36 N.J. at 25. Our Supreme Court has noted that any ambiguity in an insurance contract must be read to "comport with the reasonable expectations of the insured, even if a close reading of the written text reveals a contrary meaning." Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001) (citations omitted). New Jersey courts do not enforce insurance provisions that are "so 'confusing that the average policyholder cannot make out the boundaries of coverage.'" Id. at 601 (quoting Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247 (1979)).
The summary of important changes contained provisions discussing where Lynne's policy had changed. It specifically referenced the section that directed NJM's insured that UM/UIM coverages had been reduced "to the lowest level allowed by New Jersey law." However, the summary did not indicate the amount of available coverage for a non-resident relative. That information is not contained in either the declaration sheet or the policy itself. The policy merely states that coverage "shall not exceed the minimum limits required by New Jersey law for liability coverage set forth in N.J.S.A. 39:6A-3.
At oral argument, it was suggested that if a policyholder wanted to know the minimum liability coverage limit they could seek the advice of a lawyer or research the question in a library. The need to consult a lawyer suggests, on its face, the impermissible ambiguity that we and our Supreme Court have consistently proscribed. Even if a policyholder had gone to a library and found N.J.S.A. 39:6A-3, that section would not provide the requisite clarity for a lay policyholder, as it does not mention UM or UIM coverage specifically, and gives three different numbers for different types of coverage.
The mere citation of a statute is not enough to inform the average policy holder of what those limits are. Our Supreme Court has repeatedly noted that:
[I]n enforcing an insurance policy, courts will depart from the literal text and interpret it in accordance with the insured's understanding, even when that understanding contradicts the insurer's intent, if the text appears overly technical or contains hidden pitfalls, cannot be understood without employing subtle or legalistic distinctions, is obscured by fine
print, or requires strenuous study to comprehend.
[Zacarias, supra, 168 N.J. at 601 (emphasis added) (citations omitted).]
We note here that NJM asserts it cannot augment its contract with a specific number because of the potential for the statutory minimum coverage to change. We also note here that NJM renews insurance contracts on a regular basis, and could easily add a number (in this case, ($15,000)) to plaintiff's contract.
In Skeete, supra, our Supreme Court instructed that "policy changes must be conveyed fairly to the policy holder." 184 N.J. at 9. We conclude that the minimum liability coverage limit of $15,000 should have been specifically included in the policy in order to allow Lynne, as the policy holder, to "digest the changes" of the policy. Ibid. We also conclude that the policy changes were not conveyed fairly to Lynne and reverse the entry of summary judgment for defendant and vacate the denial of summary judgment to plaintiff. We remand this matter for purposes of entering summary judgment in favor of plaintiff and addressing plaintiff's demand for UIM arbitration.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION