Eight Seconds Out of the Vehicle is Too Long For Purposes of UIM Coverage, Says Appellate Court

Severino v. Malachi – UIM

In Severino v. Malachi, the Appellate Division of the Superior Court of New Jersey recently held that two individuals who had just exited a vehicle and were struck and killed while crossing the street were not entitled to underinsured motorist (UIM) coverage because they were no longer occupying” their vehicle.  The law related to underinsured motorist coverage (UIM) is constantly changing.  Therefore, if you have been involved in an automobile accident in New Jersey where underinsured motorist coverage is an issue, you should contact a New Jersey auto accident lawyer or New Jersey personal injury lawyer for assistance.

Julio Cesar Severino and Yavalier Rodriguez drove to Jersey City in a vehicle owned by Severino’s fiancé.  When they reached their destination in Jersey City, Severino parked the vehicle on the street and exited the driver’s side.  Rodriguez exited the passenger side.  An eyewitness testified that about eight seconds after  Severino and Rodriguez exited the vehiclel, they were struck and killed by defendant’s vehicle.  The insurance policy covering the defendant’s vehicle provided coverage in the amount of $25,000 per person and $50,000 per occurrence.  Therefore, plaintiffs sought underinsured motorist coverage (UIM) under the policy covering the vehicle they had been driving just before the accident.

The underinsured motorist (UIM) provision of the insurance policy covering the plaintiffs’ vehicle provided that the vehicle’s insurance policy would pay compensatory damages that an insured” is entitled to recover from the owner or operator of an underinsured vehicle as a result of bodily injury sustained in an accident.  The policy defined insured” as a named insured” or a family member, and any other person occupying your covered auto.”  The trial court held that Severino and Rodriguez were occupants of their vehicle at the time of the incident and ordered the insurance company to provide coverage.  However, the Appellate Division disagreed and reversed.

In coming to its conclusion, the Appellate Division examined several prior cases related to this issue.  The first case examined by the Appellate Division was Mondelli v. State Farm.  In that case, the plaintiff was standing next to his girlfriend’s vehicle with his arm resting on the roof of the car when he was struck by another vehicle.  In that case, the New Jersey Supreme Court held that the plaintiff was occupying” his girlfriend’s vehicle for purposes of insurance coverage.

Torres v. Travelers Indemnity Co – UIM

In Torres v. Travelers Indemnity Co., a delivery truck had delivered several packages to a warehouse where plaintiff was the manager.  Shortly after the delivery truck left, plaintiff realized that one package was missing.  Plaintiff then got in his employer’s van and followed the delivery truck.  After discovering the delivery truck parked nearby, the plaintiff exited the van and asked the driver if he could look around in the truck for the missing package.  Plaintiff then climbed into the truck and found the package.  While walking back to his van, plaintiff was struck by another vehicle.  Again, in that case, the New Jersey Supreme Court held that plaintiff was occupying” his employer’s van for purposes of underinsured motorist coverage (UIM).

The Appellate Division distinguished the present case by holding that Severino and Rodriguez did not leave the vehicle in order to perform some essential task and they were not touching the vehicle at the time of the accident.  Rather, the Appellate Division held that Severino’s and Rodriguez’s use an occupancy of the vehicle had essentially ended.  Therefore, the Court held that they were not covered by the underinsured motorist insurance policy covering the vehicle they were driving just eight second prior to the accident.

This Appellate Division decision is particularly atrocious when viewed in conjunction with the use of step-down provisions by insurance companies and our courts’ jurisprudence related to step-down provisions.  Step-down provisions provide that if a plaintiff is entitled to coverage under an underinsured motorist policy applicable to a vehicle that the plaintiff is driving, but is concurrently covered by another underinsured motorist policy, the coverage is stepped-down” to the limit of the lower policy.

Underinsured Motorist Coverage – UIM

So, for example, if a plaintiff is driving a company vehicle covered by an underinsured motorist policy that provides for $1 million in coverage and is involved in a serious accident where the defendant’s insurance is not sufficient to cover compensatory damages, the amount of coverage provided by the underinsured motorist policy can be stepped-down to the limit on a personal policy applicable to the plaintiff covering a vehicle that is sitting in the plaintiff’s driveway at home, and had no involvement with the accident whatsoever.  Therefore, if the plaintiff has a policy providing for $100,000 in underinsured motorist coverage on his personal vehicle, the underinsured motorist policy covering the business vehicle that was actually involved in the accident is only required to pay a maximum of $100,000, even though the policy limit is $1 million.

In the present case, the Appellate Division refused to look to the insurance policy covering the vehicle that the plaintiff’s had just exited eight seconds prior to the accident to provide underinsured motorist coverage to the plaintiffs.  However, in the context of step-down provisions, our courts will shamelessly look to policies covering vehicles that were not even involved in the accident at all to lower the limit of the amount of money an insurance company has to pay to the victim of an accident.  Anyone involved in an automobile accident in New Jersey is facing an uphill battle with insurance companies that will strenuously fight as long and hard as possible to deny coverage and unsympathetic courts.  A New Jersey personal injury lawyer or New Jersey auto accident lawyer is essential to helping plaintiffs involved in auto accidents fight that battle.


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