Opinion
DOCKET NO. A-3447-12T3
03-03-2014
LIONEL JEAN-BAPTISTE, Plaintiff-Appellant, v. EDILINE G. EXANTUS, individually and d/b/a DEDETTE, INC., ORLEI A. DESOUZA, a/k/a ORLEI A. DESCUZA, Defendants, and NEW JERSEY PROPERTY LIABILITY INSURANCE GUARANTY ASSOCIATION, Defendant-Respondent.
Pablo N. Blanco argued the cause for appellant (The Blanco Law Firm, L.L.C., attorneys; Mr. Blanco, on the brief). Mark M. Tallmadge argued the cause for respondent (Bressler, Amery & Ross, P.C., attorneys; Mr. Tallmadge, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and St. John.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8844-11.
Pablo N. Blanco argued the cause for appellant (The Blanco Law Firm, L.L.C., attorneys; Mr. Blanco, on the brief).
Mark M. Tallmadge argued the cause for respondent (Bressler, Amery & Ross, P.C., attorneys; Mr. Tallmadge, on the brief). PER CURIAM
Plaintiff Lionel Jean-Baptiste appeals from an order entered by the trial court on February 22, 2013, which denied his motion to reinstate a claim against defendant New Jersey Property-Liability Insurance Guaranty Association (NJPLIGA). We affirm.
On November 19, 2009, plaintiff was operating a motor vehicle owned by defendant Ediline G. Exantus (Exantus), who conducts business under the name of Dedette, Inc. It appears that plaintiff was utilizing the Exantus vehicle as a taxi cab. According to plaintiff, his vehicle was struck by a vehicle owned by defendant Orlei A. DeSouza (DeSouza). The DeSouza vehicle had been stolen and was being operated by Tykel Linder.
An initial search of the records of the New Jersey Division of Motor Vehicles (DMV) indicated that State Farm Insurance Company (State Farm) provided coverage for the DeSouza vehicle. However, on May 26, 2010, State Farm informed plaintiff's attorney that it did not insure that vehicle.
At the time of the accident, the Exantus vehicle was insured by American Millennium Insurance Company (AMI). Plaintiff's attorney contacted AMI to assert a claim for uninsured motorist benefits (UM). By letter dated July 13, 2010, AMI replied, indicating that the only coverage available to plaintiff was the minimum liability coverages mandated by statute. AMI explained that its
limousine liability policy is a "scheduled driver" policy, which by its express and clear terms and conditions, provides coverage only for those drivers specifically named in the Schedule of Named Drivers. The bold and conspicuous terms of Endorsement A-1 clearly show that the reasonable expectations of the parties to the contract of insurance was to cover only drivers whose driving records that have been reviewed and who otherwise met the underwriting guidelines of the [company's] limousine program.
The person who was operating the vehicle at the time of the alleged accident, Lionel Jean Baptiste, was not listed on the list of scheduled drivers and was not submitted and/or approved for inclusion into the scheduled driver list to qualify as a commercial driver pursuant to the standards set forth by the "Special Risk" requirements. . . .
Given the relevant policy provisions and facts in this case, the only coverage that would be provided for Lionel Jean Baptiste['s] operation of the insured vehicle owned by the Named Insured is the limits of liability coverage required by the New Jersey financial responsibility statutes. . . .
In its July 13, 2010 letter, AMI also stated that it was "making a full reservation of all its rights under the policy, including the right to deny coverage and/or assert any additional coverage defenses that may be applicable to this claim." Although AMI's letter indicated that its policy did not provide plaintiff with UM coverage, it appears that plaintiff's attorney continued to contact AMI regarding plaintiff's UM claim.
Thereafter, plaintiff provided NJPLIGA with a notice of intention to submit a claim for payment from the Unsatisfied Claim Judgment Fund (Fund), dated November 1, 2011. The notice stated that the claim arose from a motor vehicle accident that occurred on November 19, 2009. The notice also stated that plaintiff had been driving a vehicle insured by AMI, but he did not have UM coverage under the AMI policy.
On November 3, 2011, AMI's counsel wrote to plaintiff's attorney to "confirm" their recent conversations regarding plaintiff's UM claim. In the letter, AMI's counsel noted that the UM endorsement under the AMI policy only covered the named insured, persons "specifically named" in the policy's schedule of drivers, and anyone who had been added as a named driver in accordance with the policy. AMI's counsel stated that since plaintiff was not a scheduled driver, he was not an insured for purposes of UM coverage.
On November 7, 2011, plaintiff filed a complaint in the Law Division, naming Exantus, DeSouza and NJPLIGA as defendants. In count one of the complaint, plaintiff alleged that he was injured in the November 19, 2009 accident as a result of the negligence of DeSouza and the negligence of the person who was driving the DeSouza vehicle at the time. In count two, plaintiff claimed that Exantus negligently failed have him designated as a scheduled driver under the AMI policy covering his vehicle.
In count three, plaintiff noted that because he was not on the list of scheduled drivers for the Exantus vehicle, he was not entitled to UM coverage under the insurance policy covering that vehicle. Plaintiff alleged, however, that he had complied with the applicable statutes, and NJPLIGA was obligated for the damages he sustained in the accident because he was an uninsured motorist without UM coverage.
NJPLIGA filed an answer to the complaint denying liability. NJPLIGA also filed a motion to dismiss the claim against it because plaintiff had not provided notice of his intention to submit a claim within the time required by N.J.S.A. 39:6-65. Plaintiff opposed the motion.
The trial court considered NJPLIGA's motion on December 2, 2011, and determined that plaintiff's claim must be dismissed because he failed to provide NJPLIGA with timely notice of his intent to submit a claim, as required by N.J.S.A. 39:6-65. The court entered an order dated December 2, 2011, dismissing plaintiff's claim against NJPLIGA.
In October 2012, NJPLIGA filed a motion to intervene in the case, and plaintiff filed a cross-motion to vacate the December 2, 2011 order, which dismissed his claim against NJPLIGA. The court entered orders on November 16, 2012, granting NJPLIGA's motion to intervene, and denying plaintiff's cross-motion to vacate the December 2, 2011 order.
On January 10, 2013, DeSouza filed a motion for summary judgment. He argued that he had no liability in the matter because, at the time of the accident, his car was being driven by a person who had stolen the car. Plaintiff filed a cross-motion again seeking to vacate the December 2, 2011 order. The judge entered orders dated February 22, 2013, granting DeSouza's motion and denying plaintiff's cross-motion. Plaintiff's appeal followed.
Plaintiff argues that the trial court erred by refusing to reinstate his claim against NJPLIGA. He contends that the court erred because he gave NJPLIGA notice of his intent to submit a claim within the time provided by N.J.S.A. 39:6-65. We disagree.
The Unsatisfied Claim and Judgment Fund Law (the UCJF Law), N.J.S.A. 39:6-61 to -91, established a fund for the "payment of damages for personal injuries or property damage arising out of accidents involving uninsured or unknown owners of automobiles." Jimenez v. Baglieri, 152 N.J. 337, 341 (1998). NJPLIGA has responsibility for administration of the Fund. N.J.S.A. 39:6-64c.
Only persons deemed qualified by N.J.S.A. 39:6-62 may recover from the Fund. Jimenez, supra, 152 N.J. at 341. The UCJF Law defines the term "qualified person" to include those who lack UM benefits under an applicable insurance policy. Id. at 341-42 (citing N.J.S.A. 39:6-62). The UCJF Law further provides that
Any qualified person . . . who suffers damages resulting from bodily injury or death or damage to property arising out of the ownership, maintenance or use of a motor vehicle . . . and whose damages may be satisfied in whole or in part from the [UCJF], shall . . . within 180 days after the accident, as a condition precedent to the right thereafter to apply for payment from the [UCJF], give notice to the [NJPLIGA] . . . of his intention to make a claim thereon for such damages if otherwise uncollectible; provided, any such qualified person may, in lieu of giving said notice within said time, make proof to the court on the hearing of the application for the payment of a judgment (a) that he was physically incapable of giving said notice within said period and that he gave said notice within 180 days after he became physically capable to do so or in the event he did not become so capable, that a notice was given on his behalf within a reasonable period, or (b) that he gave notice to the [NJPLIGA] within 15 days of receiving notice that an insured had disclaimed on a policy
of insurance so as to remove or withdraw liability insurance coverage for his claim against a person or persons who allegedly caused him to suffer damages. . . .
[N.J.S.A. 39:6-65.]
Plaintiff argues that his November 1, 2011 notice of intention to submit a claim was timely. He maintains that AMI's July 13, 2011 letter did not constitute a disclaimer of coverage, but was merely a reservation of rights. Plaintiff contends that AMI did not actually disclaim coverage until November 3, 2011, when AMI's counsel informed plaintiff's attorney that plaintiff was not entitled to UM coverage under the policy. Plaintiff therefore argues that he provided the NJPLIGA notice of his intention to submit a claim for payment from the UCJF within the time required by N.J.S.A. 39:6-65.
As we stated previously, N.J.S.A. 39:6-65 provides that persons seeking payment out of the Fund for personal injuries and property damage arising from the "ownership, maintenance or use" of a motor vehicle, must provide NJPLIGA with notice of intent to submit a claim within 180 days of the accident. However, N.J.S.A. 39:6-65(b) permits the claimant to submit the notice within 15 days after receipt of notice that an insurer had disclaimed coverage under an insurance policy "so as to remove or withdraw liability insurance coverage for his claim against a person or persons who allegedly caused him to suffer damages."
Here, plaintiff asserted a claim based on the personal injuries he allegedly sustained in the November 19, 2009 accident. He was required to provide NJPLIGA with a notice of his intent to submit his claim within 180 days of the accident, but failed to do so. Plaintiff's notice would, however, be timely if he comes within the exception in N.J.S.A. 39:6—65(b), that allows him to submit the notice within 15 days after an insurer has disclaimed liability insurance coverage.
The term "disclaimed" as used in N.J.S.A. 39:6—65(b) has been construed broadly. Brookins v. Murray, 131 N.J. 141, 155 (1993) (citing Wharton v. Knox, 98 N.J. Super. 61 (App. Div. 1967)). The term applies to the denial of coverage under a policy. Ibid. (citing Joseph v. Moore, 102 N.J. Super. 59, 67 (App. Div. 1968)). Thus, an insurer's notice that there is no coverage because a policy was cancelled for non—payment of premium is a disclaimer for purposes of N.J.S.A. 39:6—65. Id. at 144.
In this matter, plaintiff asserted a claim against State Farm because the DMV's records indicated that State Farm had issued a policy insuring the DeSouza vehicle. However, in its letter of May 26, 2010, State Farm informed plaintiff that notwithstanding what was indicated in the DMV's records, it did not provide coverage for the DeSouza vehicle. State Farm's letter of May 26, 2010, was a disclaimer of coverage, and plaintiff was required to submit his notice of intent to submit a claim to NJPLIGA within 15 days of that date. It is undisputed that plaintiff did not do so.
Even if we interpreted N.J.S.A. 39:6-65 to allow a claimant to provide notice of intent to submit a claim within 15 days after each disclaimer of coverage, the statute did not apply to the letters that AMI sent to plaintiff. N.J.S.A. 39:6-65(b) allows notice to be submitted to NJPLIGA within 15 days after a disclaimer of liability insurance coverage. Here, plaintiff was not seeking liability coverage. He was seeking UM coverage. AMI's notice that plaintiff was not entitled to UM coverage was not a disclaimer within the scope of the N.J.S.A. 39:6-65(b) exception.
Furthermore, even if a denial of UM coverage could be considered a disclaimer for purposes of N.J.S.A. 39:6-65(b), plaintiff's notice was not submitted to NJPLIGA within the time required by the statute. Plaintiff relies upon AMI's letter of November 3, 2011, as the triggering date for submission of the notice. However, AMI had previously denied UM coverage in its letter of July 13, 2010.
In the July 13, 2010 letter, AMI stated that the policy covering the Exantus vehicle provided UM coverage only to persons who are defined "insureds" for purposes of such coverage. The letter indicated that plaintiff claimed he had been driving the vehicle at the time of the accident, but he was not listed on the schedule of named drivers, as required by the policy endorsement, and he was not approved for inclusion as an approved scheduled driver.
AMI stated that the only coverages available to plaintiff were the liability coverages mandated by the N.J.S.A. 17:28-1.1 and N.J.S.A. 39:6B-1. Thus, the only coverages available to plaintiff were liability coverage of $15,000 for bodily injury or death, per person, per accident; $30,000 for bodily injury or death of more than one person, per accident; and $5,000 for property damage, per accident.
Therefore, AMI's letter of July 13, 2011, clearly stated that plaintiff was not entitled to UM coverage under the policy issued for the Exantus vehicle. The letter of November 3, 2011, from AMI's counsel merely confirmed that determination. In that letter, AMI's counsel again stated that because plaintiff was not a scheduled driver under the policy at any time, including the time of the November 19, 2009 accident, he would not be considered an "insured" for purposes of UM coverage.
Plaintiff argues, however, that the July 13, 2011 letter should not be considered a disclaimer of UM coverage because in that letter AMI asserted a full reservation of rights. This contention is without merit. AMI's July 13, 2011 letter stated that the only coverages available to plaintiff were the minimum liability coverages required by law. The reservation of rights pertained to those coverages, not to UM coverage, which AMI clearly stated was not available to plaintiff under the policy.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION