CNA Insurance v. Canning
CNA Insurance v. Canning
Opinion of the Court
The opinion of the court was delivered by
On January 22,1995, Anthony Cirringione was injured when the automobile he was driving, owned by Cheryl Kudrna, collided with a vehicle driven by Wendy Canning. He sued Canning and learned during discovery, that her liability insurance policy had a limit of $100,000. Cirringione’s own policy had a $50,000 limit for liability coverage (and thus the same amount for underinsured motorist coverage (UIM)). Kudrna’s ear, considered the host vehicle for Cirringione, had a liability limit of $500,000 insured by CNA Insurance Company. Cirringione asserted that Canning, the tortfeasor, was underinsured by $400,000, the difference between the host’s coverage and the tortfeasor’s, and sought UIM coverage from the host’s insurer, CNA CNA denied coverage because Cirringione’s personal coverage was less than the tortfeasor’s.
On September 20, 1995, James Heubner was operating a car owned by Jane McConnell, and he was injured when that car collided with another operated by Francis Ellis and owned by Susan Little. Heubner had $15,000 coverage on his own policy
Each insurance company filed a declaratory judgment action. CNA succeeded on its motion for summary judgment but Continental did not. Cirringione and Continental each appealed and we ordered the appeals consolidated because the issues are practically identical.
The CNA policy defines a “covered person” for underinsured motorist coverage purposes as:
1. You or any family member.
2. Any other person occupying your covered automobile.
3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.
The Continental policy is quite similar:
1. Covered person means:
c. Any [ ] person occupying an insured motor vehicle with your consent, except when struck by, a vehicle owned by you or that person which is not insured for this coverage under this policy.
It is undisputed that each driver occupied the host’s covered vehicle and did so with the host’s consent. Each policy provides underinsured coverage benefits to a “covered person” in clear unambiguous language.
Our Supreme Court considered similar claims, first in French v. New Jersey School Bd. Assn., 149 N.J. 478, 694 A.2d 1008 (1997), and then in three cases the next year: Magnifico v. Rutgers Casualty Ins. Co., 153 N.J. 406, 710 A.2d 412 (1998); New Jersey Manufacturers Ins. Co. v. Breen, 153 N.J. 424, 710 A.2d
The insurance companies contend that each driver owned another insured automobile with liability coverage, so neither host could have intended to have its insurance policy cover a “fortuitous occupant”;such as Cirringione and Heubner. The companies seek to distinguish the factual situations of French (an employee of the host) and Breen and Grant (a resident relative of the host) from those of these two cases on appeal. We disagree and hold that the same result applies here where the policy explicitly covers “any person” occupying the host’s insured vehicle. The concept of the fortuitous driver comes from Taylor v. National Union Fire Ins. Co., 289 N.J.Super. 593, 674 A.2d 634 (App.Div. 1996), which was effectively overruled by the 1998 Supreme Court trilogy. Once an insurer issues a policy insuring all occupants, any occupant can claim that the coverage of that vehicle is coverage “held” by that occupant.
Accordingly, we reverse the summary judgment granted to CNA in A-410-98T3, and we affirm the summary judgment granted to Heubner in A-3947-98T5.
The uninsured motorist statute provides:
[a] motor vehicle is underinsured when the sum of the limits of liability under all bodily injury and property damage liability bonds and insurance policies available to a person against whom recovery is sought for bodily injury or property damage is, at the time of the accident, less than the applicable limits for underinsured motorist coverage afforded under the motor vehicle insurance policy held by the person seeking that recovery.
[N.J.S.A. 17:28-1.l(e)(emphasis supplied)].
Case-law data current through December 31, 2025. Source: CourtListener bulk data.