Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit

1-8-2009

First Liberty Ins v. Budow Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3418

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Recommended Citation "First Liberty Ins v. Budow" (2009). 2009 Decisions. Paper 2063. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2063

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 07-3418 ___________

FIRST LIBERTY INSURANCE CORPORATION; LIBERTY MUTUAL INSURANCE COMPANY, Appellants

v.

ARIELLE BUDOW, a Minor; IRA BUDOW; SUSAN FUCHS; ALBERT LOPEZ; NEW JERSEY MANUFACTURER'S INSURANCE CO.

Arielle Budow, a Minor, Ira Budow, Susan Fuchs, individually and on behalf of Arielle Budow ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 05-cv-00088) District Judge: Honorable Cynthia M. Rufe ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) December 9, 2008

Before: MCKEE, SMITH, and ROTH, Circuit Judges

(Opinion filed: January 8, 2009 )

___________

OPINION ___________

SMITH, Circuit Judge. Appellants Arielle Budow and her parents, Rabbi Ira Budow and Dr. Susan Fuchs 1

(“the Budows”), appeal from the District Court’s entry of summary judgment in favor of

Appellee First Liberty Insurance Corporation (“First Liberty”). For the reasons that

follow, we will affirm.

Because we write primarily for the parties, who are already familiar with the facts

and procedural history of this case, we only briefly repeat them here. On March 8, 2004,

Arielle Budow, then fifteen years old, was a passenger in a car owned by the Budows.

The car was driven by permissive driver Albert Lopez, who had been hired by the

Budows to drive Arielle from their home in Yardley, Pennsylvania to her private school

in Deal, New Jersey. On the day in question, Lopez was driving Arielle to school in a

snowstorm when he apparently lost control of the vehicle and crashed into several trees.

The impact caused the back bumper of the car to penetrate through the trunk area into the

backseat where Arielle was seated. Arielle suffered several injuries as a result, requiring

multiple surgeries and other extensive treatment.

At the time of the accident, the Budows’ car was insured by First Liberty in the

amount of $250,000 per person injured in an accident in liability coverage, and

$1,000,000 in underinsured motor vehicle coverage (“UIM”) after stacking. In addition,

Lopez had $100,000 in liability insurance on his own vehicle, which was not involved in

1 Because Budow was a minor at the time this lawsuit was filed in the District Court, Fuchs also served as her Guardian ad litem.

2 the accident, under a policy provided by New Jersey Manufacturer’s Insurance Company.

In an action in New Jersey state court, Arielle sought the $350,000 in liability

coverage available under the Budows’ and Lopez’s policies, as well as the UIM available

under the Budows’ policy.2 First Liberty then filed the underlying declaratory judgment

action asking the District Court to determine whether the UIM was available to Arielle in

the state court action. The District Court determined that, under the plain language of the

insurance contract entered into by First Liberty and the Budows, it was not, and that

enforcement of that contract provision would not be contrary to public policy.

Accordingly, the District Court entered summary judgment on this issue in favor of First

Liberty. The Budows appeal.

The District Court had jurisdiction pursuant to

. We have

appellate jurisdiction pursuant to

. We exercise plenary review over the

District Court’s entry of summary judgment, applying the same standard as the District

Court applied in determining whether summary judgment was appropriate. See Norfolk

Southern Ry. v. Basell USA Inc.,

(3d Cir. 2008). We have reviewed the

record and can find little to add to the District Court’s thorough and well-reasoned

opinion. Accordingly, we adopt the District Court’s opinion as our own.

Based on the foregoing, we will affirm the judgment of the District Court.

2 Initially, Arielle also sought to recover from an umbrella policy purchased by the Budows from Liberty Mutual Insurance Company in 2003. However, this coverage is not at issue in the instant appeal. (At. Br. 6.)

3