Aquilio v. Continental Insurance

709 A.2d 231, 310 N.J. Super. 558, 1998 N.J. Super. LEXIS 139
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 31, 1998
StatusPublished
Cited by8 cases

This text of 709 A.2d 231 (Aquilio v. Continental Insurance) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aquilio v. Continental Insurance, 709 A.2d 231, 310 N.J. Super. 558, 1998 N.J. Super. LEXIS 139 (N.J. Ct. App. 1998).

Opinion

The opinion of the court was delivered by

WECKER, J.A.D.

Defendant, Continental Insurance Company (“Continental”), appeals from the entry of summary judgment in favor of plaintiff, Joy Ann Aquilio (Aquilio), and the denial of its own motion for summary judgment. The parties dispute the amount of the total death benefit due plaintiff as the widow and Executrix of the Estate of John Aquilio, under the automobile insurance policy issued to plaintiff by Continental. As required by N.J.S.A. 39:6A-4d, prescribing mandatory personal injury protection (PIP) coverage, that policy provides death benefits consisting of the maximum income continuation benefits payable under N.J.S.A. 39:6A-4b plus the maximum essential services benefits payable under N.J.S.A. 39:6A-4c. Specifically, the question presented is whether the total death benefit provided in accordance with § 4d must be calculated based upon the minimum required PIP benefits set forth in § 4b and § 4c, as defendant claims, or based upon the optional additional benefits offered by defendant and purchased by plaintiff pursuant to N.J.S.A. 39:6A-10. Plaintiff claims she is entitled to a total death benefit calculated on the basis of the “Option 5” PIP benefits of $41,600 in income continuation plus $14,600 in essential benefits.

Defendant relies upon the 1982 amendment to N.J.S.A. 39:6A-10, which states that such additional “income continuation and essential services benefits shall cease upon the death of the claimant, and shall not operate to increase the amount of any death benefits payable under [N.J.S.A. 39:6A-4] ...” Relying on Capelli v. Twin City Fire Ins. Co., 209 N.J.Super. 552, 508 A.2d 269 (App.Div.1986), the motion judge held that because Confinen[561]*561tal did not notify Aquilio of any change in the terms of her policy upon post-1982 policy renewals, the amendment did not effect any reduction in the death benefit. We agree that plaintiff was entitled to summary judgment, and we therefore affirm. However, we do so for reasons different from those stated in the Law Division Judge’s letter opinion of April 3, 1997. See Isko v. Livingston Tp. Planning Bd., 51 N.J. 162, 175, 238 A.2d 457 (1968) (“[i]t is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance”).

Aquilio’s husband was a pedestrian when he was killed as a result of a freak accident on January 2,1992. Two cars collided at an intersection, and one jumped the curb, striking him. He died almost immediately. At the time of the accident, Aquilio had three insurance policies which included PIP benefits. One of those policies was with Continental.1 It is undisputed that John Aquilio was covered by plaintiffs policy as a resident spouse of the named insured, Joy Ann Aquilio.

Soon after her husband’s death, Aquilio reported her claim to Continental. Continental Loss Adjusting Company responded by letter dated January 28, 1992, asking plaintiff for verification that she was the executrix of her husband’s estate. After Aquilio requested confirmation of her coverage, she received a letter dated January 31, 1992, which listed her benefits pursuant to Option 5 coverage as follows:

Death Benefits $10,000
Funeral Expenses $ 2,000
Essential Services $14,600
Lost Wages $41,600

Aquilio then submitted her application for PIP coverage. Continental declined to pay the additional benefits under Option 5, [562]*562contending that it was responsible only for the basic PIP coverage.2 In denying the additional benefits, Continental relied on the above-quoted language added by the 1982 amendment to N.J.S.A 39:6A-10.

Plaintiff filed suit. Continental answered and moved for summary judgment. Aquilio cross-moved for summary judgment, claiming that Continental issued her first policy in the 1970’s, when she originally selected Option 5 benefits; that she continued to renew this same policy until her husband’s death; and that she was never notified that a statutory amendment had changed her coverage.

The trial court denied Continental’s motion for summary judgment and granted Aquilio’s cross-motion for summary judgment from the bench on January 24,1997:

This Court, by a reading of the dec. sheet and in conjunction with the policy issue, taking into consideration the original policy was issued prior to N.J.S. 39:6A as amended on January 12th, 1982 that the insured’s claim for additional coverage is supportive by a letter dated January 31st, 1992 from Continental Insurance, notwithstanding Continental’s position that it was informative only.

In a letter opinion dated April 3,1997, the motion judge reasoned:

Plaintiff was never advised that subsequent policies, posbJanuary 12,1982, did not afford the additional P.I.P. coverage provided by Option. In fact, after giving notice of claim, plaintiff was advised that she had Option 5. There is no factual evidence plaintiff was advised that the coverage she had was modified by the provisions of N.J.S.A 39:6A-10.
There is nothing in the defendant’s moving papers upon which this court can conclude that the insured as layperson could conclude that she no longer had P.I.P. benefits contracted for in previous renewal policies which provided loss of income and essential service in the event an insured was killed in an automobile accident. [563]*563More important, there is no evidence that she was advised of the loss of benefit. In fact, based upon what has been presented by the insured’s certification of January 16,1997, plaintiff had a reasonable expectation of receiving the full loss of income and essential benefits as provided by Option 5 in the amounts of $41,600.00 and $14,600.00, respectively.

The court ruled in favor of plaintiff, quoting Capelli, supra, 209 N.J.Super. at 555, 508 A.2d 269:

In the absence of an endorsement changing the terms of the policy issued to plaintiffs decedent, the amendment (N.J.S.A 39:6A-10) did not operate to effect a change in the policy issued to the plaintiffs decedent.

The motion judge perceived the issue to be whether Aquilio had a reasonable expectation of recovering the maximum Option 5 benefits because Continental failed to inform her of the 1982 change in the law. We disagree that that is the issue presented.

Aquilio was insured by Continental beginning in 1970. The earliest Continental automobile policy in evidence was plaintiffs 1974 policy, which included basic death benefits as well as optional, additional PIP coverage under “Option 5.” Defendant does not dispute the terms of the 1974 policy. Option 5 provided PIP benefits up to a maximum of $41,600 in “additional income continuation benefits” and $14,600 in “additional essential services benefits.” Option 5 coverage also included an additional death benefit of $10,000 and funeral expenses of $2,000, and defendant does not dispute plaintiffs entitlement to those amounts.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Segal v. Lynch
993 A.2d 1229 (New Jersey Superior Court App Division, 2010)
Bd. of Educ. v. School Bds. Ass'n
719 A.2d 645 (New Jersey Superior Court App Division, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
709 A.2d 231, 310 N.J. Super. 558, 1998 N.J. Super. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aquilio-v-continental-insurance-njsuperctappdiv-1998.