Morag v. Continental Insurance
Morag v. Continental Insurance
Opinion of the Court
The opinion of the court was delivered by
The procedural history and relevant facts giving rise to this appeal are undisputed. Plaintiff, Haim Morag, was involved in an automobile accident. At the time, he had Underinsured Motorist Coverage (UIM) in the amount of $300,000 issued by defendant
On October 16, 2003, Continental made a written offer through counsel to settle for $50,000 indicating that if the amount was not accepted it would be withdrawn and the arbitration award would be rejected. On October 29, 2003, counsel for Continental rejected the award, writing the following letter to plaintiffs counsel:
Please be advised that CNA rejects the underinsured motorist arbitration award rendered on July 17, 2003.[sic] This method of rejecting the arbitration award is specifically provided for by Verbiest v. New Jersey Full Ins. Underwriting Associates [Association], 256 N.J.Super. 85, 606 A.2d 420 (App.Div. 1992).
Please advise when you file the appropriate Complaint and you may send the Complaint to my attention and I will accept service on behalf of CNA
On December 22, 2003, plaintiff filed a complaint seeking confirmation of the arbitration award. The complaint also sought damages under plaintiffs UIM coverage and asserted that Continental had acted in bad faith. Contending that Continental’s failure to request a jury trial nullified its rejection of the award, plaintiff filed an Order to Show Cause (OTSC) why the arbitration award should not be confirmed. On March 26, 2004, following oral argument on plaintiffs OTSC, the Law Division judge confirmed the arbitration award, finding that “under principles of contract law” the insurer failed to strictly comply with the policy provision requiring a demand for a jury trial. An order confirming the arbitration award and entering judgment in favor of plaintiff for $150,000 plus costs was entered on April 12, 2004. The order further dismissed the remainder of plaintiffs complaint without
Continental’s policy contained the following pertinent language:
ARBITRATION
If we and an “insured” do not agree:
1. Whether that person is legally entitled to recover damages under this endorsement; or
2. As to the amount of damages;
either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will:
1. Pay the expenses it incurs; and
2. Bear the expenses of the third arbitrator equally.
Unless both parties agree otherwise, arbitration will take place in the county in which the “insured” lives. Local rules of law as to procedure and evidence will apply A decision agreed to by two of the arbitrators will be binding as to:
1. Whether the “insured” is legally entitled to recover damages; and
2. The amount of damages. This applies only if the amount does not exceed the minimum limit for liability specified by the financial responsibility law of New Jersey If the amount exceeds that limit, either party may demand ths right to a trial. This demand must be m,ade within 60 days of the arbitrators’ decision. If this demand is not made, the amount of damages agreed to by the arbitrators will be binding. (Emphasis added.)
On appeal, Continental asserts that: (1) counsel’s October 29, 2003, letter satisfied the policy requirements; (2) its intent to exercise its right to a jury trial was made clear from both the contents of its letter and the surrounding circumstances; and (3) its rejection of the award was made in substantial compliance with the language of its policy. Plaintiff counters, asserting that the trial judge properly confirmed the arbitration award, the doctrine of substantial compliance does not apply, and it was not the parties’ intent that the letter of October 29, 2003, trigger the trial demand provision of the policy.
We begin our analysis by reviewing the facts in Verbiest, supra, 256 N.J.Super. 85, 606 A.2d 420. In Verbiest, the servicing carrier, CIGNA, notified its insured victims twenty days following entry of UIM arbitration awards that the “awards are rejected,”
Here, unlike the facts in Verbiest, insurance counsel’s letter never expressly demanded a trial. Instead, insurance counsel referred to Verbiest and asked plaintiff’s counsel to “advise when you file the appropriate Complaint” and instructed him to send the complaint “to my attention and I will accept service on behalf of CNA.”
More recently, in Barnett v. Prudential Property & Casualty Ins. Co., 304 N.J.Super. 573, 579, 701 A.2d 732 (App.Div. 1997), certif. denied, 154 N.J. 610, 713 A.2d 502 (1998), we commented on the insufficiency of an insurer’s notice rejecting arbitration. In Barnett, the insurer notified its insured that it rejected an arbitration award solely on the basis that UIM coverage was precluded under Aubrey v. Harleysville, Ins., 140 N.J. 397, 658 A.2d 1246 (1995) (holding that the plaintiff, who was involved in an accident while driving a non-owned vehicle with the permission of the
The objective of [the insurer], and more importantly the thrust of its notice to [its insured] was as to the underlying coverage issue in light of Aubrey. It was not focused upon the amount of damages ascertained by the arbitration. More importantly, there was never a demand for jury trial within the 30 days required under the arbitration provision.
[Id. at 579, 658 A.2d 1246.]
Here, unlike Barnett, the insurer was not rejecting the arbitration award based upon an issue of coverage, but upon the policy provision affording each party the right to reject the award and have a jury decide damages where the award exceeds the minimum limits for liability specified in our financial responsibility law. More importantly, the notice here is not completely silent respecting anticipated trial.
The issue thus presented is whether the second paragraph of insurance counsel’s October 29 letter requesting plaintiffs counsel to advise when “you file the appropriate Complaint,” which insurance counsel would accept in lieu of service of process on the carrier, was tantamount under the circumstances to suffice as a demand for trial. We conclude that it does.
In resolving this issue, it is helpful to consider the general principles that guide us in insurance policy interpretation and application. New Jersey law entitles an individual to insurance coverage if the policy language is ambiguous by resolving unclear policy language in favor of the insured. See, e.g. Sparks v. St. Paul Ins. Co., 100 N.J. 325, 336, 495 A.2d 406 (1985); Progressive Cas. Ins. Co. v. Hurley, 166 N.J. 260, 273-74, 765 A.2d 195 (2001); Search EDP v. American Home Assurance Co., 267 N.J.Super. 537, 542, 632 A.2d 286 (App.Div. 1993). In construing UIM policies, we search broadly, as with other contracts, “for the probable common intent of the parties in an effort to find a reasonable meaning in keeping with the express general purposes of the policies.” French v. New Jersey Sch. Bd. Ass’n, Ins.
We resolve the issue, specifically the meaning of the October 29 letter, by enforcing what we perceive to be the reasonable expectations of the insured. Although insurance counsel’s letter did not use the expressed words “demanding a trial,” it sufficiently apprised plaintiffs counsel that the insurer was (1) requiring the insured to file the necessary complaint and (2) waiving formal service of process. The words “when you file the appropriate complaint” used between lawyers following specific reference to Verbiest, together with acceptance of service, was equivalent to demanding that plaintiffs counsel proceed to litigate the issue of damages on behalf of his client. Simply stated, the fair implication of the correspondence between the lawyers was that the carrier was demanding a damages trial. To hold otherwise would be placing form over substance. That being said, we are nevertheless constrained to add the following cautionary remarks. The proper and most direct manner to demand a trial is to do so expressly. To do otherwise invites ambiguity, which could, depending on the factual circumstances, lead to a different result. We find no such ambiguity here. Accordingly, we reverse and remand for a damages trial on the merits.
Reversed and remanded.
CNA Personal Insurance (currently known as Encompass Insurance) was the insurance underwriter for Continental.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.