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Defendant's Attorney: Selina M. Ellis
John V. Mallon

Description:

Trenton, NJ - Personal Injury lawyer represented defendant with seeking compensation for the injuries and loss of income.

.

On September 6, 2016, Mary Aquilar brought her car in for maintenance
by Trend Motors, Ltd. (Trend). The service required that Trend keep the car
for several days, so Trend provided Aquilar with a complimentary loaner
vehicle for her personal use while her vehicle was being serviced. Aquilar
signed Trend’s loaner-vehicle form agreement, which included a provision
stating that Aquilar was not covered by any insurance policy held by Trend.
Several days into her use of that loaner vehicle, on September 14, 2016,
Aquilar and a vehicle driven by plaintiff Tyrone A. Huggins were passing
through the intersection of 14th Street and Garden Street in Hoboken.
Aquilar’s concededly negligent operation of the loaner vehicle caused it to
strike Huggins’s car. Huggins sustained serious injuries as a result.
At the time of the accident, GEICO insured Aquilar through an
automobile policy that provided liability coverage of $15,000 per person and
$30,000 per incident, the minimum limits established under N.J.S.A. 39:6B1(a). See also N.J.S.A. 39:6A-3. Huggins held an automobile insurance
policy with defendant and third-party plaintiff New Jersey Manufacturers
5
Insurance Company (NJM) that provided uninsured motorist (UM) and
underinsured motorist (UIM) coverage up to $100,000 per incident.
Trend held a garage policy with Federal Insurance Company (Federal)
that insured Trend’s vehicles for up to $1,000,000 in liability coverage.
As noted, the MVC requires, as a condition of licensure, that every
automobile dealership demonstrate possession of liability insurance, in the
amount of $100,000 per person and $250,000 per incident, covering “all
vehicles owned or operated by the applicant, at his or her request or with his or
her consent.” N.J.A.C. 13:21-15.2(l). Despite the blanket disclaimer of
insurance coverage in Trend’s loaner agreement, the Federal policy addressed
coverage for customers in certain situations. Those provisions supplied,
within the Liability Coverage Section of Trend’s Federal policy, the following
definition of an insured (entitled “Who Is An Insured”):
a. The following are “insureds” for covered “autos”:
. . . .
(2) Anyone else while using with your permission a
covered “auto” you own, hire or borrow except:
. . . .
(d) Your customers. However, if a customer of
yours:
(i) Has no other available insurance (whether
primary, excess or contingent), they are an
6
“insured” but only up to the compulsory or
financial responsibility law limits where the
covered “auto” is principally garaged.
(ii) Has other available insurance (whether
primary, excess or contingent) less than the
compulsory or financial responsibility law
limits where the covered “auto” is principally
garaged, they are an “insured” only for the
amount by which the compulsory or financial
responsibility law limits exceed the limit of
their other insurance.
[Hereinafter referred to as Paragraph 3(a)(2)(d) of the
policy.]
According to those terms, Federal’s policy purports to extend liability
coverage to Trend’s customers using Trend’s vehicles only if the customer
lacks the minimum insurance required by law, and the policy covers those
customers only to the extent necessary to establish that unspecified minimum
insurance level.
B.
On June 14, 2017, Huggins filed a complaint in the Law Division of
Superior Court in Hudson County seeking compensation for the injuries and
loss of income he suffered as a result of the accident. Huggins’s complaint
named Trend and Aquilar as defendants. On July 6, 2018, Huggins amended
his complaint to name his personal insurer NJM as a defendant, seeking UIM
coverage for any damages exceeding the $15,000 in coverage provided by
7
Aquilar’s GEICO policy. GEICO accepted coverage under its automobile
policy for Aquilar and deposited $15,000 in liability coverage with the Law
Division on behalf of its insured, Aquilar.
NJM answered and filed a third-party complaint against Federal. NJM’s
complaint sought a declaration that Federal’s policy covered Aquilar’s thirdparty liability to Huggins. Federal and NJM filed cross-motions for summary
judgment on whether Aquilar’s third-party liability to Huggins was covered
under the garage policy. Federal disclaimed liability, arguing that Aquilar did
not fit the policy’s definition of an insured because she held $15,000 in bodily
injury coverage through GEICO, meeting the minimum amount of insurance
required under law by N.J.S.A. 39:6B-1(a). See also N.J.S.A. 39:6A-3.
NJM argued that Aquilar was a permissive user under the Federal policy
and that the dealership was obligated, as the owner of the vehicle, to maintain
liability coverage for her when she was driving one of its vehicles. NJM
maintained that because the Federal policy’s definition of an insured excluded
Aquilar based on her personal coverage, it acted as an unenforceable “escape
clause” that should be voided as a matter of law -- a position with which
Federal disagreed, claiming it was a permissible step-down provision as
allowed in Aubrey v. Harleysville Insurance Cos., 140 N.J. 397 (1995).
8
The trial court agreed with NJM and held that the insurance policy’s
definition of an insured constituted an illegal escape clause because the
definition operated to eliminate coverage for a class of permissive drivers of
the dealership’s vehicles, namely, Trend customers who maintained personal
automobile insurance that met statutory requirements. Because the Federal
policy entirely excluded Aquilar due to her minimum personal bodily injury
coverage, the court believed it failed to comply with the public policy of
requiring all vehicle owners to provide the applicable minimum coverage for
permissive users. In so holding, the trial court relied on Willis v. Security
Insurance Group, 104 N.J. Super. 410 (Ch. Div. 1968), aff’d, 53 N.J. 260
(1969), as well as Rao v. Universal Underwriters Insurance Co., 228 N.J.
Super. 396 (App. Div. 1988). The court’s analysis tracked the reasoning
expressed in the dissent to the dismissal of the appeal in Engrassia, 237 N.J. at
380-84, which it found persuasive.
Concluding that the policy’s definition of an insured as applied to
Aquilar was an illegal escape clause, the court turned to the question of the
amount of coverage to be provided under the policy. Reasoning that it was not
the role of the court to rewrite the policy, the trial court held that the policy
provided Aquilar with the policy limit of $1,000,000 in liability coverage.
Accordingly, the court granted summary judgment to NJM and dismissed it
9
from the case because the Federal policy exceeded the $100,000 limit of
NJM’s UIM coverage.
Federal filed a motion for reconsideration, arguing that the trial court
erred in declining to reform the Federal policy, citing Proformance Insurance
Co. v. Jones, 185 N.J. 406 (2005), and Potenzone v. Annin Flag Co., 191 N.J.
147 (2007). In rejecting that argument, the trial court applied the standard for
reformation from those cases and concluded that Federal was on notice of the
illegality of the escape clause in its policy in light of the earlier decisions in
Willis and Rao. Thus, interpreting Potenzone to require that the full policy
limit be enforced, the court left unchanged its original order imposing the
$1,000,000 insurance policy limit.
Federal filed a motion for leave to appeal to the Appellate Division,
which NJM and Huggins opposed. On February 11, 2020, the Appellate
Division denied the motion. Federal then filed for leave to appeal to this
Court, and we granted the motion. 242 N.J. 512 (2020).1
The parties’
arguments before this Court are, in essence, those advanced before, except
where noted in this opinion.
1
This Court’s order granting Federal’s appeal incorrectly recites Ms.
Aquilar’s surname as “Aguilar”. We apologize to Ms. Aquilar for this error.
10
II.
A.
Simply stated, this case concerns the compulsory liability insurance
requirement imposed on vehicles, through their owners, in order to provide
compensation for injury from accidents involving those vehicles.2
The
legislative policy in this area is straightforward.
Per the plain language of N.J.S.A. 39:6B-1(a), “[e]very owner or
registered owner of a motor vehicle registered or principally garaged in this
State shall maintain motor vehicle liability insurance coverage” in the amounts
of at least $15,000 per person and $30,000 per accident to insure against
liability for bodily injury, death, and property damages sustained by a victim
of an accident involving that vehicle. The statute’s certainty girds the strength
of the liability safety net devised by the legislative insurance scheme for
victims of automobile accidents. See Proformance, 185 N.J. at 412.
Further, the statutory requirement that every automobile be insured by
its owner, not its driver, is foundational to the permissive user rule. See id. at
413. That rule is based on the principle that “a liability insurance contract is
for the benefit of the public as well as for the benefit of the named or
2
Throughout this opinion, we draw heavily from the analysis expressed in the
dissent in Engrassia, without quoting or providing express attribution each
time.
11
additional insured.” Verriest v. INA Underwriters Ins. Co., 142 N.J. 401, 414
(1995) (quoting Odolecki v. Hartford Acc. & Indem. Co., 55 N.J. 542, 549
(1970)). The permissive user rule developed in settings where coverage under
a standard automobile liability insurance policy is questioned due to the
vehicle’s operation by a person other than the named insured. Small v.
Schuncke, 42 N.J. 407, 412 (1964). Generally stated, the rule provides for
coverage under the standard omnibus liability clause of an auto policy,
presently required under N.J.S.A. 39:6B-1(a), when a driver has “permission to
use a motor vehicle in the first instance, [and] any subsequent use short of
theft or the like while it remains in his possession, though not within the
contemplation of the parties, [remains] a permissive use.” Matits v.
Nationwide Mut. Ins. Co., 33 N.J. 488, 496-97 (1960).
Our Court has used the permissive driver rule to prohibit circumvention
of public policy -- a policy that provides a safety net of third-party coverage
through compulsory liability insurance. Insurance policy provisions that
disclaim whole classes of drivers are problematic, and often found violative of
public policy, when they exclude categories of permissive users from the
policy’s mandatory minimum liability coverage. See Proformance, 185 N.J. at
416-17 (collecting cases); Selected Risks Ins. Co. v. Zullo, 48 N.J. 362, 366
(1966). Such exclusions constitute illegal and unenforceable escape clauses.
12
The facts and holding of Willis are particularly instructive. In Willis,
this Court affirmed, 53 N.J. 260, a Chancery Division decision that had
invalidated a car dealership’s garage policy that “exclude[d] from its omnibus
clause individuals driving the insured’s car with his permission where such
persons have available valid and collectible insurance under their own policies
with the minimum limits.” 104 N.J. Super. at 412. Plaintiff Willis got into an
accident while he was test driving a car owned by a car dealership, Ruffu Ford,
Inc., with the permission of the dealer’s general manager. Id. at 411. Willis’s
insurer, Allstate, contended that Willis was covered by Ruffu’s garage liability
policy, issued by defendant Security Insurance Group, and that Allstate was
therefore responsible for excess coverage only. Id. at 412. But Security
claimed it was not responsible for providing liability coverage because the
garage policy excluded coverage for permissive users of the insured’s car who
had their own automobile coverage meeting minimum limits. Ibid.
The Chancery Division found the policy’s coverage exclusion invalid as
a matter of public policy. Id. at 414-15. The court reasoned from the earlier
decision by this Court in Zullo “that ‘there may be no departure from the
omnibus coverage described in section 46 of the Security-Responsibility Act.’”
Id. at 415 (quoting Zullo, 48 N.J. at 374). The court noted that N.J.S.A. 39:6-
46(a), the predecessor to N.J.S.A. 39:6B-1, “specifically requires that a policy
13
shall ‘insure the insured named therein and any other person using or
responsible for the use of any such motor vehicle with the express or implied
consent of the insured.’” Ibid. Thus, the Chancery Division declared invalid
the garage policy provision excluding coverage for permissive users having
their own liability coverage and held defendant Security Insurance Group
primarily liable for the coverage. Ibid.
The statutory omnibus requirement at issue in Willis was not that an
injured party be covered to the statutory minimums, but that the owner of a
vehicle provide coverage. Id. at 414-15. Therefore, even if a provision -- like
the provision disputed in Willis -- would never leave an injured third party
without coverage, it was still in violation of the plain language of the statute.
That principle was followed by the Appellate Division in Rao. In that
case, the Appellate Division held that an automobile leasing company’s
insurance policy, which provided coverage to lessees only to the extent that
they lacked their own minimum liability coverage, was an invalid escape
clause. 228 N.J. Super. at 404. Plaintiff Anita Rao struck a pedestrian while
driving a car leased by her husband, Naveen Rao, from defendant Open Road
Leasing Company (Open Road). Id. at 398. Mr. Rao had a personal
automobile liability insurance policy from Allstate, pursuant to the
14
requirements of the lease agreement with Open Road. Ibid. The Raos sought
coverage under Open Road’s insurance policy, which stated that
[t]he portion of the limit applicable to persons or
organizations required by law to be an INSURED is
only the amount (or amount in excess of any other
insurance available to them) needed to comply with the
minimum limits provision of such law in the
jurisdiction where the OCCURRENCE takes place.
[Id. at 399.]
The Appellate Division examined N.J.S.A. 45:21-1 to -3, which govern
mandatory omnibus liability coverage of rental vehicles. Id. at 400-01.
Specifically, N.J.S.A. 45:21-2 requires every “owner” of a vehicle for rent or
lease to maintain liability insurance. Id. at 400. The court construed N.J.S.A.
45:21-1 to -3 as requiring “an ‘owner[]’ to ‘provide’ a liability policy of
insurance for the statutorily mandated minimum of $15,000/$30,000 regardless
of whether any ‘lessee or bailee, his agent or servant’ otherwise procures and
maintains such insurance.” Id. at 403. The court found the “potential doubling
of the available minimum statutory coverage because of the amount of other
insurance carried by a lessee . . . to be irrelevant,” ibid., and held that to the
extent the policy’s language “attempts to preclude coverage entirely because of
the other . . . coverage secured by the Raos in compliance with the leasing
agreement, it is contrary to the statutory mandate and constitutes an illegal
escape clause,” id. at 404 (citing Zullo, 48 N.J. 362).
15
B.
The instant matter is complicated by the heightened compulsory liability
insurance coverage imposed by the Chief Administrator of the MVC.
N.J.S.A. 39:10-19 requires all persons “engage[d] in the business of
buying, selling or dealing in motor vehicles” to first obtain a dealership license
from the MVC. The same statute authorizes the MVC’s Chief Administrator
to license a proper person “upon application in such form as the [C]hief
[A]dministrator prescribes.” Ibid. To implement that statutory responsibility,
the Chief Administrator promulgated N.J.A.C. 13:21-15.2, which governs the
procedures and requirements for obtaining a license. In pertinent part,
subsection (l) of that regulation requires that the applicant,
[a]t some time during the application process prior to
licensure, . . . submit a certificate of insurance
demonstrating liability insurance covering all vehicles
owned or operated by the applicant, at his or her request
or with his or her consent. This insurance shall be in
the amount of $100,000 per person per incident up to
$250,000 per incident for bodily injury or death,
$25,000 per incident for property damage, and
$250,000 combined personal injury and property
damage per incident. This insurance shall be renewed
as necessary to ensure that it remains valid for the entire
prospective license term.
[N.J.A.C. 13:21-15.2(l).]
When proposed as a requirement of licensure, that provision was met
with objection from within the regulated industry. During the notice and
----
16
comment period before promulgation of N.J.A.C. 13:21-15.2(l), a commenter
raised a concern that the proposed regulation would increase costs on small
auto dealers;
3
the commenter also specifically questioned the alteration of the
minimum liability insurance requirement terms established by N.J.S.A. 39:6A3 and :6B-1. The Commission responded that,
while it is undisputed that automobile insurance costs
. . . are still uncomfortably high, the exposure occasioned
by the proliferation of dealer plates and the use of those
plates by what are essentially unknown quantities
requires increased protection more in line with current
economic realities, which is directly related to the public
welfare. If industry experience did not include claims in
excess of current coverages there would be no increased
cost associated with higher limits. Inasmuch as
insurance costs are directly related to pay-outs, however,
the fact that the risks are substantial cannot be ignored.
While the Commission is not insensitive to the effect of
increased costs on the dealer, as a matter of simple
fairness, the costs of injuries to third parties should be
borne by the commercial entity who benefits by the use
and sale of the vehicle and not by the innocent victim of
an accident in which that vehicle may be involved. The
Commission, therefore, declines to amend the rules to
impose on motor vehicle dealers the requirements of
N.J.S.A. 39:6A[] and 39:6B[], which apply only to
private passenger automobiles and not to dealership
inventory. (See N.J.S.A. 39:6A-2 [(defining
“automobile”)].)
[38 N.J.R. 1324(a), response to cmt. 25 (Feb. 6, 2006).]
3
The commenter noted, “[c]urrently dealers are required to carry insurance of
only $35,000 per incident per person, at a cost of $7,500. Tripling the
insurance coverage will double the cost of the coverage.”
17
It is plain that the impact of this requirement, with its demand for higher
liability insurance coverage than is generally required under N.J.S.A. 39:6B1(a), was known, considered, and not altered by the Chief Administrator when
the requirement was adopted. The regulation’s specific requirement that
coverage extend to vehicles “owned or operated by the applicant, at his or her
request or with his or her consent” demonstrates a clear intent that permissive
users be insured.
It is also noteworthy that this is not the only instance of higher
compulsory minimum liability coverage for certain vehicles on the road in
New Jersey. A canvassing of relevant law reveals several examples, of which
we take notice.
Some higher amounts of required liability coverage are set by statute.
For example, transportation network company drivers must maintain liability
insurance of $50,000/$100,000. N.J.S.A. 39:5H-10(b). An owner of
limousines must maintain liability insurance of $1,500,000. N.J.S.A. 48:16-
14. Motor vehicles used to carry passengers for hire must maintain liability
coverage in amounts set by a schedule, but far in excess of the
$15,000/$30,000 limit identified in N.J.S.A. 39:6B-1(a). N.J.S.A. 48:4-47.
Other required amounts of higher liability coverage have been imposed
by regulation pursuant to statutory authorization. For example, N.J.S.A.
18
48:13A-7.22 authorizes the Board of Public Utilities (BPU) to establish,
through rules and regulations, uniform bid specifications for municipal solid
waste collection contracts. The BPU promulgated N.J.A.C. 7:26H-6.17(a),
which requires contractors with winning bids for municipal solid waste
collection contracts to maintain, among other forms of insurance, automobile
liability insurance in the amount of $500,000/$1,000,000. Similarly, the
Director of the Division of Consumer Affairs is authorized to establish
requirements for movers’ and warehousemen’s services, N.J.S.A. 45:14D-6,
and so adopted N.J.A.C. 13:44D-4.7(b), requiring such practitioners to
maintain automobile liability coverage in minimum amounts of
$25,000/$100,000 for bodily injury. And the Commissioner of Health
promulgated N.J.A.C. 8:40-3.3(c)(1), requiring ambulance service providers to
maintain automobile liability insurance of at least $500,000 per occurrence for
combined bodily injury/property damage coverage for each vehicle.
Thus, there are numerous examples where the law requires certain
vehicles to maintain higher compulsory liability insurance than is called for
under N.J.S.A. 39:6B-1(a).
19
III.
Examination of the relevant parts of Federal’s policy provision
concerning “who is an insured” reveals ineluctably that it contains an
impermissible escape clause.
Federal’s policy excludes liability coverage to all Trend customers who
have personal insurance meeting the compulsory statutory minimum.
However, because N.J.S.A. 39:6B-1(a) requires car “owner[s]” to carry
insurance rather than drivers, Trend -- as owner of the loaner vehicle -- was
obligated to provide compulsory liability insurance for accidents in which
Trend’s car was involved when Aquilar, who was its permissive user, was
driving it. See N.J.S.A. 39:6B-1(a); Rao, 228 N.J. Super. at 403 (construing
N.J.S.A. 45:21-2 similarly); Willis, 104 N.J. Super. at 415 (construing
N.J.S.A. 39:6-46(a) similarly).
The Federal policy creates an exclusion from compulsory insurance for
vehicles based on a class of permissive motorists to which Aquilar belongs and
-- if the exclusion passed muster -- would excuse Federal from providing
liability coverage to third parties injured in accidents. Yet N.J.S.A. 39:6B-1(a)
imposes the obligation to provide liability coverage on owners of vehicles, an
obligation animated by the Legislature’s protective intent in adopting a safetynet regime of insurance. See also N.J.S.A. 39:6A-3. While a step down in
20
coverage has been approved in the setting of eligibility for first-party UIM
coverage, as in Aubrey, it has not been approved with respect to third-party
liability coverage to accident victims.
Paragraph 3(a)(2)(d), by its terms, does not merely limit the first-party
coverage provided by Trend to already-insured drivers of their loaner vehicles
who carry at least $15,000 in their own personal auto insurance. Instead, it
“except[s]” from coverage accidents involving an owned vehicle used by such
permissive users. In other words, it excuses coverage of such accidents
entirely. Accordingly, it is not a valid step-down clause but is, rather, an
unlawful escape clause. See Rao, 228 N.J. Super. at 404; Willis, 104 N.J.
Super. at 415.
That Huggins would be able to recover the N.J.S.A. 39:6B-1(a) statutory
minimum through Aquilar’s personal automobile policy for his liability claims
does not relieve Trend of its duty, as the owner of the loaner vehicle, to
provide compulsory liability insurance on the vehicle when it is driven by
Aquilar as a permissive user of Trend’s vehicle. See N.J.S.A. 39:6B-1(a). The
shifting of responsibility from owner to driver does not fulfill the public policy
of the compulsory insurance requirement and its related permissive user
doctrine. Cf. Rao, 228 N.J. Super. at 403 (finding “a potential doubling of the
available minimum statutory coverage” to be “irrelevant” because “[N.J.S.A.
21
45:21-1 to -3] do[] not allow for any escape in coverage by such an owner”).
It is significant that Rao is cited approvingly in the Aubrey decision, on which
Federal relies. See 140 N.J. at 407-08.
More importantly, Aubrey is meaningfully distinguishable. Although
Aubrey found that a similarly worded liability provision was a valid step-down
clause, that holding came in the context of UIM benefits and only indirectly
discussed liability coverage via the parity requirement of N.J.S.A. 17:28-
1.1(b). See 140 N.J. at 405-08. Aubrey was not tasked with construing
N.J.S.A. 39:6B-1(a), which mandates liability insurance of “owner[s].” Ibid.
Lawful exceptions to discretionary insurance coverage do not raise the same
concerns as efforts to evade minimum insurance requirements set by law.
In sum, the trial court correctly declared Paragraph 3(a)(2)(d) of
Federal’s policy an invalid escape clause because it attempts to exclude from
the duty to provide liability coverage cars owned by Trend that are involved in
accidents when driven by Trend customers who have personal insurance of at
least $15,000. The trial court acted appropriately in striking the provision as
unenforceable because it operates as an escape clause.
IV.
On the question of remedy, the parties advance differing positions about
reformation of the contract. The trial court declined to reform the contract to a
22
mandatory minimum and instead held Federal to the full amount of the policy
on its face, namely $1,000,000 in liability coverage.
A.
The two most relevant cases on reformation of an insurance policy are
Proformance and Potenzone, as the parties recognize in their arguments.
In Proformance, we held that the “public policy” of compensating
accident victims, which underlies N.J.S.A. 39:6B-1(a), precluded enforcing a
provision in an auto insurance policy that purported to exclude liability
coverage for an owner-policyholder’s permissive user who caused a vehicle
collision while engaged in “business pursuits” -- an activity not covered under
the policy. 185 N.J. at 409, 414-20. Having struck that provision, the Court
next addressed whether the policy’s stated limit of $100,000 should apply or
whether the policy should be reformed to the compulsory statutory minimum
of $15,000. See id. at 420-21. The Court held that the policy should be
reformed to $15,000, reasoning, “[t]he business pursuits exclusion is contrary
to public policy to the extent that it denies to an injured third party the
minimum coverage required by law.” Id. at 421.
In Potenzone, the Court reached the opposite conclusion, reforming an
offending business auto insurance policy to the stated policy limit rather than
the statutory minimum. See 191 N.J. at 149, 152-56. The offending provision
23
at issue in Potenzone excluded liability coverage for workplace injuries that
occurred “while moving property to or from a covered auto” -- an exclusion
the insurer conceded was not enforceable under case law mandating coverage
for “loading and unloading accident[s].” Id. at 154 (citing Ryder/P.I.E.
Nationwide, Inc. v. Harbor Bay Corp., 119 N.J. 402, 413 (1990)). Therefore,
“[t]he sole issue on appeal was whether [the insurer’s] insurance coverage
should be limited to the statutory minimum or extended to the face amount of
its insurance policy.” Id. at 150.
We held that the policy should be enforced to its stated limit of
$500,000, id. at 154-56, and distinguished Proformance on the basis that the
offending business-pursuits clause was an “otherwise valid business
exclusion,” and “[i]t was the first time we invalidated a business exclusion of
that nature.” Id. at 155 (citing 185 N.J. at 410, 420-21). In contrast, in
Potenzone, the offending provision violated Ryder, which had been decided
sixteen years earlier. Id. at 154-56. Ryder held “that the obligation to provide
coverage in a ‘loading and unloading’ accident arises from statute and
therefore cannot be limited by contract,” 119 N.J. at 407, and that “an insurer
would be required to provide coverage in a ‘loading and unloading’ accident to
the limits of its policy -- often an amount greater than the statutory minimum,”
id. at 413.
24
We concluded in Potenzone that, given Ryder’s holding, insurers
“should have reasonably expected that the full policy limit for an accident
during a loading or unloading operation was required.” 191 N.J. at 155.
Because “the insurance industry . . . had ample time to adjust its rates and
policy terms” but failed to do so, the Court imposed the full policy limit. Id. at
155-56.
B.
Analyzing this matter under the Proformance/Potenzone dichotomy,
which requires consideration of whether case law provided sufficient notice to
an insurer that its policy provision was unlawful, see 185 N.J. at 421; 191 N.J.
at 155-56, it is difficult to conclude that Federal had sufficient notice to
warrant imposing the full policy limit. Some confusion must be conceded, in
light of the arguably diverging decisions in Rao and Aubrey, even though
Aubrey cites Rao approvingly. Ultimately, we find this case to be closer to
Proformance, which reformed the policy to meet minimums set by law, 185
N.J. at 421, than Potenzone, which imposed the full policy limit, 191 N.J. at
155-56.
Rao, decided by the Appellate Division in 1988, provided notice of
Paragraph 3(a)(2)(d)’s illegality when that case invalidated a similar policy
exclusion that also “attempt[ed] to preclude coverage entirely because of
25
. . . other [personal] coverage secured by the [permissive users].” Rao, 228
N.J. Super. at 404. Aubrey, in reaching its holding on UIM coverage,
construed a liability exclusion nearly identical to Paragraph 3(a)(2)(d) to be a
valid step-down clause, notwithstanding that the provision would have
rendered a permissive user “not covered” because her personal coverage met
the statutory minimum. 140 N.J. at 406.
Although Aubrey arose in the context of first-person coverage under
UIM, given Aubrey’s arguably contrary reading of a similar provision as a
step-down provision, we are persuaded that the step-down-provision-versusescape-clause issue was not fully settled. We cannot say that Federal should
have “reasonably expected” that its provision would be found to be unlawful
and that it would therefore be held to the full limit of its coverage. Instead, we
hold that Federal must comply with the applicable compulsory minimum
liability coverage, which is the minimum liability coverage required by the
Chief Administrator of the MVC for all vehicles owned or used by a dealership
as its policy purported to fulfill as a condition of the dealership’s licensure:
$100,000/$250,000 in bodily injury, in pertinent part. Of course, our decision
today puts issuers of garage policies on notice that similar escape clauses are
unlawful.
26
Accordingly, we affirm the reformation of the policy but modify the trial
court’s imposition of the $1,000,000 policy amount and instead order the
reformation of Federal’s policy to the $100,000/$250,000 dealer-licensure
minimum liability coverage required by N.J.A.C. 13:21-15.2(l).4

Outcome: The judgment of the trial court is affirmed as modified.

Plaintiff's Experts:

Defendant's Experts:

Comments: