WEBVTT 2 00:00:00.002 --> 00:00:00.009 INSURANCE COMPANY, CAN WE PLEASE HAVE THE APPEARANCES OF COUNSEL. 3 00:00:00.009 --> 00:00:05.429 (APPEARANCES TENDERED.) THESE CASES. CHIEF JUSTICE 4 00:00:05.429 --> 00:00:11.257 RABNER: THESE CASES AS WE ALL KNOW INVOLVE SUBSTANTIAL OVERLAP VERSUS THE QUESTION 5 00:00:11.257 --> 00:00:16.459 BEFORE IT IT IS THE SAME STATUTE IT'S CHIACCHERI AND IN THE CONTEXT OF U 6 00:00:16.459 --> 00:00:21.642 M COVERAGE. HERE IS WHAT WE PROPOSE GIVEN THE SUBSTANTIAL OVERLAP 7 00:00:21.642 --> 00:00:27.214 OF COUNSEL AND THE LEGAL ISSUES. LET'S PROCEED ON THE FIRST CASE WITH THE ADVOCATES 8 00:00:27.214 --> 00:00:31.687 /* CATS PRESENTING ARGUMENTS AS YOU DEEM BEST KEEPING WITHIN THE ALLOTTED 9 00:00:31.687 --> 00:00:37.879 TIMES AS YOU'VE BEEN GIVEN. FOR THE SECOND ARGUMENT I AM GOING TO 10 00:00:37.879 --> 00:00:42.534 ASK THE PARTIES TO ADOPT BY REFERENCE THE EARLIER ARGUMENTS THEY HAD MADE 11 00:00:42.534 --> 00:00:46.678 /* MADE WITH RESPECT TO THE STATUTE AN TO FOCUS INSTEAD ON WHETHER THE DIFFERENCE 12 00:00:46.678 --> 00:00:52.675 BETWEEN U M AND U I M COVERAGE WOULD MAKE A DIFFERENCE, SHOULD BE TREATED 13 00:00:52.675 --> 00:00:57.002 DIFFERENTLY UNDER THE STATUTE AND THAT WILL TAKE FAR LESS THAN THE AMOUNT OF TIME 14 00:00:57.002 --> 00:01:01.564 THAT HAS BEEN REQUESTED FOR THE SECOND INDICATES. WE'LL GIVE YOU A LITTLE BIT 15 00:01:01.564 --> 00:01:09.646 OF LEEWAY TO MR. BONANNO BECAUSE -- SPEAKING FOR MR. CHIACCHERI, SO THAT 16 00:01:09.646 --> 00:01:14.008 WILL BE THE FIRST OPPORTUNITY TO PRESENT. A LITTLE LEEWAY, YOU CAN COVER THE FACTS 17 00:01:14.008 --> 00:01:17.940 NOT ALL THE LEGAL ANALYSIS ON THE FIRST CASE JUST ADOPT BY THAT REFERENCE 18 00:01:17.940 --> 00:01:23.593 TO THE EXTENT THAT MAKES SENSE AND THEN OF COURSE WE HAVE THE N J A J APPEARING 19 00:01:23.593 --> 00:01:27.595 ONLY IN THE SECOND CASE WE WILL ASK YOU TO TRIM YOUR ARGUMENT, A LITTLE 20 00:01:27.595 --> 00:01:31.673 BIT OF LEEWAY BUT NOT THE FULSOME PRESENTATION THAT WE WOULD HAVE HEARD FROM MULTIPLE 21 00:01:31.673 --> 00:01:35.711 COUNSEL IN THE FIRST CASE AS WELL. DOES ANYBODY HAVE ANY QUESTIONS 22 00:01:35.711 --> 00:01:39.929 ABOUT THAT? WE WILL TAKE A BRIEF RE/* RECESS IN IN BETWEEN 23 00:01:39.929 --> 00:01:43.981 SO YOU CAN CONFERENCE AND SPEAK WITH ONE ANOTHER IF YOU HAVE OTHER SUGGESTIONS 24 00:01:43.981 --> 00:01:48.836 SO WITH THAT OUT OF THE OTHER /* WAY AND WITH OUR THANKS FOR YOUR BRINGING 25 00:01:48.836 --> 00:02:01.607 SPRING EARLY THIS MORNING, LET'S PROCEED. MR. BONANNO. UM. 26 00:02:01.607 --> 00:02:07.554 MATTHEW G. BONANNO: THANK YOU, MR. CHIEF JUSTICE AND THE KOSHT IF I COULD RESERVE 27 00:02:07.554 --> 00:02:10.551 A FEW MINUTES FOR REBUTTAL. CHIEF JUSTICE RABNER: YES. 28 00:02:10.551 --> 00:02:14.907 MATTHEW G. BONANNO: THIS APPEAL AND ITS COMPANION TRAVIESO PRESENT SINGLE 29 00:02:14.907 --> 00:02:19.120 UNRESOLVED QUESTION OF NEW JERSEY INSURANCE LAW. WHEN AN 30 00:02:19.120 --> 00:02:25.017 AUTO POLICY NAMES ONLY A BUSINESS ENTITY AS THE NAMED SHURS WHAT DOES N.J.S.A. 1728-1.12 31 00:02:25.017 --> 00:02:32.426 /* 1 F REQUIRE FOR THE EMPLOYEES, THE INDIVIDUALS WHO ACTUALLY DRIVE THOSE 32 00:02:32.426 --> 00:02:39.438 CARS AND RISK JURY. DOES IT PER /* PERMIT AN INSURER TO PROVIDE MILLIONS OF DOLLARS 33 00:02:39.438 --> 00:02:43.411 OF LIABILITY KORJ INFORM /* TO PROTECT ASSETS WHILE LEAVING THE EMPLOYEES 34 00:02:43.411 --> 00:02:48.343 COMPLETELY OPEN TO BODILY INJURY WITHOUT PROTECTION OR DOES IT REQUIRE CORPORATIONS 35 00:02:48.343 --> 00:02:54.331 TO PROTECT ITS EMPLOYEES INSURING MAXIMUM AMOUNTS OF UM AND U I M COVERAGE. 36 00:02:54.331 --> 00:02:58.653 IN 2007 THE LEGISLATURE ENACTED SUBSECTION F WHICH WAS ITS 37 00:02:58.653 --> 00:03:03.771 PROMISE /* PROMISE TO NEW JERSEY WORKERS THAT THEY WOULD BE FULLY FROEKTD BY THEIR 38 00:03:03.771 --> 00:03:09.243 EMPLOYERS U I M COVERAGE NOTWITHSTANDING ANY OTHER LAWS OR PROVISIONS TO 39 00:03:09.243 --> 00:03:13.988 THE CONTRARY. GENERALLY WHEN PURCHASING AUTO NEW JERSEY IN THE 40 00:03:13.988 --> 00:03:21.090 NEW JERSEY, WAY THE RISKS AN BENEFITS ASSOCIATED WITH DRIVING AND CHOOSE WHAT U 41 00:03:21.090 --> 00:03:26.195 M AND U I M COVERAGE IS APPROPRIATE FOR THEM WHETHER IT'S THE MAXIMUM AVAILABLE 42 00:03:26.195 --> 00:03:29.269 COVERAGE OR WHETHER IT IS SOMETHING ELSE. HOWEVER, SUBSECTION 43 00:03:29.269 --> 00:03:34.251 F RECOGNIZES AND ACKNOWLEDGES THAT IN CERTAIN CIRCUMSTANCES WHERE THE 44 00:03:34.251 --> 00:03:38.818 INSURED IS A COMPANY, A BUSINESS, THAT DECISION IS STRIPPED FROM THE PEOPLE WHO 45 00:03:38.818 --> 00:03:44.533 ACTUALLY USE THAT COVERAGE, THE EMPLOYEES, SO IN THOSE CIRCUMSTANCES FOR EXAMPLE 46 00:03:44.533 --> 00:03:49.796 WHEN A CORPORATE GIANT LIE T J X RIERS /* REQUIRES THE EMPLOYEES TO DRIVE 47 00:03:49.796 --> 00:03:56.350 THE COMPANY'S CARS, T J X IN TURN HAS TO PROVIDE THE REQUISITE PROTECTION TO THOSE 48 00:03:56.350 --> 00:04:01.531 EMPLOYEES. IN THOSE CIRCUMSTANCES THE LEGISLATURE EJ R 49 00:04:01.531 --> 00:04:05.843 ENSURED THAT COMPANY'S EMPLOYEES ARE FULLY PROTECTED FOR RISKS RECOGNIZING THAT 50 00:04:05.843 --> 00:04:11.116 DECISION HAS BEEN STRIPPED FROM THE WORKER AND IT DID SO BY INSURING WORKERS WHO ARE 51 00:04:11.116 --> 00:04:18.052 AT RISK ARE ENSURED THE MAXIMUM U I M COVERAGE EVEN IF THEIR EMPLOYERS 52 00:04:18.052 --> 00:04:21.606 CHOOSE OTHERWISE. I STARTED TI BEGINNING OF THE STATUTE AND IT'S 53 00:04:21.606 --> 00:04:26.845 IMPORTANT THAT THE LEGISLATURE WHEN THEY ENACTED SUBSECTION F ENACTED IT NOTWITHSTANDING 54 00:04:26.845 --> 00:04:33.051 OTHER PROVISIONS AND THIS COURT AS RECENTLY AS THREE WEEKS AGO RECOGNIZED 55 00:04:33.051 --> 00:04:38.016 THE IMPORTANCE OF THE NOTWITHSTANDING CLAUSE IN HORN IN HER AND THE INTENT OF THAT 56 00:04:38.016 --> 00:04:44.830 CLAUSE THAT THE PROVISIONS OF THE LEGISLATURE SUPERSEDE ALL OTHER LAWS. CLOP 57 00:04:44.830 --> 00:04:48.348 HORNER CLOP. SO THE USE OF NOTWITHSTANDING SIGNALS THAT 58 00:04:48.348 --> 00:04:52.685 SUBSECTION F PRATSZ IN THE FACE OF OTHER PROVISIONS OR LAWS INCLUDING THOSE 59 00:04:52.685 --> 00:04:57.367 COST CONTAINMENT EFFORTS RELIED UPON BY THE INSURANCE INDUSTRY HERE. 60 00:04:57.367 --> 00:05:02.834 AND THIS COURT RECOGNIZED THAT IN JAMES WHEN THEY SAID SUBSECTION F PROVIDES MAXIMUM 61 00:05:02.834 --> 00:05:09.088 COVERAGE, QUOTE, BY OPERATION OF LAW. MODIFYING POLICIES REGARDLESS OF THE 62 00:05:09.088 --> 00:05:13.867 POLICY'S TERMS. SO, FOR INSTANCE, WHILE SUBSECTION B GENERALLY 63 00:05:13.867 --> 00:05:20.013 ALLOWS INSUREDS TO CHOOSE LOWER U M AND U I M LIMITS SUBSECTION F PROVIDES THAT 64 00:05:20.013 --> 00:05:25.225 NOTWITHSTANDING THAT CHOICE EMPLOYEES ARE DEEMED TO HAVE THE MAXIMUM COVERAGE 65 00:05:25.225 --> 00:05:29.884 AVAILABLE UNDER THEIR POLICY IF THEIR EMPLOYER IS THE INSURED. 66 00:05:29.884 --> 00:05:34.869 NOW, WHEN CERTIFYING THESE QUESTIONS TO THE COURT, THE THIRD CIRCUIT LOOK 67 00:05:34.869 --> 00:05:41.113 TD AT THE LANGUAGE IN SUBSECTION F AND DECIDED THAT IT WAS AMBIGUOUS OPEN TO 68 00:05:41.113 --> 00:05:45.293 TWO PLAUSIBLE TERPGSZ OURSELVES AND THE INSURANCE INDUSTRIES AND THAT LANGUAGE, 69 00:05:45.293 --> 00:05:50.609 SPECIFIC LANGUAGE IS MAXIMUM U I M COVERAGE AVAILABLE UNDER THE POLICY. 70 00:05:50.609 --> 00:05:55.447 SO WE LOOK UNDERSTAND EXTRINSIC AIDS IN DETERMINING WHAT THAT MEANS, 71 00:05:55.447 --> 00:06:00.498 WHAT THE PLAIN LANGUAGE OF THAT MEANS AND LOOK AT IT IN THE CONTEXT OF THE 72 00:06:00.498 --> 00:06:04.530 LEGISLATION AND WHAT WILL ADVANCE THE SPIRIT OF THAT LAW. THE 73 00:06:04.530 --> 00:06:13.306 THIR /* SPIRITED OF SUBSECTION F IS ENSURING THAT EMPLOYEES ARE FROEKTD BY THEIR 74 00:06:13.306 --> 00:06:17.800 EMPLOYERS AUTO POLICIES. IN THE CONTEXT OF U I M HAVE ORDINARY 75 00:06:17.800 --> 00:06:22.767 AND SAID LD MEANINGS, MAXIMUM MEANS THE MOST COVERAGE AVAILABLE AND AVAILABLE 76 00:06:22.767 --> 00:06:27.227 MEANS THAT RANGE OF COVERAGE THAT IS AVAILABLE TO BE SELECTED, NOT SIMPLY WHAT WAS 77 00:06:27.227 --> 00:06:30.815 CHOSEN BY THE INSURED. IF THE LEGISLATURE MEANT WHAT WAS 78 00:06:30.815 --> 00:06:34.358 SELECTED IN THE POLICY THEY WOULD HAVE MADE THAT CLEAR THE LANGUAGE WOULD 79 00:06:34.358 --> 00:06:38.801 HAVE SAID SELECTED OR CHOSEN OR PROVIDED FOR IN THE POLICY BUT THEY DIDN'T. THEY 80 00:06:38.801 --> 00:06:43.905 USED MAXIMUM AVAILABLE UNDER THE POLICY AND WITHIN NEW JERSEY'S STATUTORY 81 00:06:43.905 --> 00:06:50.389 THE SCHEME SUBSECTION F DEFIANCE PRECISELY WHAT U I M COVERAGE IS AVAILABLE UNDERSTAND 82 00:06:50.389 --> 00:06:54.421 A POLICY, COVERAGE THAT MAY BE PURCHASED UP TO THE LIEBLTD LIMITS OF THAT 83 00:06:54.421 --> 00:06:59.823 SAME POLICY SO FOR INSTANCE HERE WHERE THE POLICY PROVIDES $2 MILLION OF LIABILITY 84 00:06:59.823 --> 00:07:04.069 COVERAGE THE MAXIMUM AVAILABLE COVERAGE UNDERSTAND THAT POLICY IS $2 MILLION. 85 00:07:04.069 --> 00:07:09.049 THAT WOULD ALSO ALIGN WITH WHAT NEW JERSEY DEPARTMENT OF BANKING 86 00:07:09.049 --> 00:07:15.222 AND INSURANCE AND WHAT ZURICH PUT OUT TO THEIR INSUREDS WHEN WE LOOK AT THE BUYER'S 87 00:07:15.222 --> 00:07:20.498 GUIDE BOTH THE NEW JERSEY BUYER'S GOOID AND ZURICH'S BUYER'S GUIDE EXPLAIN 88 00:07:20.498 --> 00:07:26.176 THAT U /* UM AND U I M ARE, QUOTE, SOLD TOGETHER AND QUOTE, AVAILABLE AMOUNT /* 89 00:07:26.176 --> 00:07:30.476 UP TO AMOUNTS SLEKTDZ FOR LIABILITY KORJ. THROUGHOUT THESE 90 00:07:30.476 --> 00:07:34.276 DOCUMENTS THERE IS A CLEAR DISTINCTION BETWEEN WHAT COVERAGE IS AVAILABLE AND WHAT 91 00:07:34.276 --> 00:07:38.400 COVERAGE IS ACTUALLY PURCHASED AND CHOSEN BY THE INSURED. 92 00:07:38.400 --> 00:07:41.473 JUSTICE PATTERSON: LET ME INTERRUPT YOU FOR A MOMENT. YOU FOCUS 93 00:07:41.473 --> 00:07:46.963 ON THE NOTWITHSTANDING CLAUSE BUT THAT'S NOTWITHSTANDING OTHER LAWS TO THE CONTRARY. 94 00:07:46.963 --> 00:07:52.442 IT DOES NOT SAY NOTWITHSTANDING OTHER PROVISIONS OF THE POLICY TO THE 95 00:07:52.442 --> 00:07:56.983 CONTRARY AND I THINK THAT'S SIGNIFICANT BECAUSE YES THERE IS GREAT POWER IN A NOT 96 00:07:56.983 --> 00:08:03.108 WITHSTANDING CLAUSE, BUT YOU ARE TALKING ABOUT THE NOTWITHSTANDING CLAUSE 97 00:08:03.108 --> 00:08:15.278 OVERRIDING A POLICY PROVISION THAT HAS A $30,000 LIMIT FOR U I M AND 1530, NOT 98 00:08:15.278 --> 00:08:20.146 A LOSS THAT YOU MIGHT OTHERWISE PROVIDE. MATTHEW G. BONANNO: 99 00:08:20.146 --> 00:08:25.043 JUSTICE PATTERSON RESPECTFULLY SUBSECTION F STARTS NOTWITHSTANDING THE 100 00:08:25.043 --> 00:08:27.844 PROVISIONS OF THIS SECTION OR ANY LAW TO THE CONTRARY. JUSTICE 101 00:08:27.844 --> 00:08:32.470 PATTERSON: IT'S REFERRING TO A LAW. IT IS NOT SAYING NOTWITHSTANDING THE LEVEL 102 00:08:32.470 --> 00:08:37.118 THAT IS A BARGAIN 4 LEVEL IN THE POLICY. MATTHEW G. BONANNO: 103 00:08:37.118 --> 00:08:41.484 RESPECTFULLY JUSTICE PATTERSON, I BELIEVE IT IS. I BELIEVE IT IS SAYING 104 00:08:41.484 --> 00:08:48.625 NOTWITHSTANDING ANY OTHER PROVISIONS OF N.J.S.A. 17:28-1.1 WHICH WOULD CON /* INCLUDE 105 00:08:48.625 --> 00:08:53.430 SUBSECTION A WHICH DISCUSSES THE MINIMUM AND SUBSECTION B WHICH DISCUSSES THE 106 00:08:53.430 --> 00:08:57.397 INSURED'S ABILITY TO CHOOSE. JUSTICE PATTERSON: BUT THIS ENTIRE 107 00:08:57.397 --> 00:09:03.921 QUESTION IS ABOUT CASES IN WHICH THERE IS A PROVISION THAT SELECTION BY 108 00:09:03.921 --> 00:09:10.374 THE EMPLOYER WITH RESPECT TO WHAT THE LEVEL OF U I M AND UM COVERAGE IS GOING TO BE; 109 00:09:10.374 --> 00:09:16.246 THAT'S IN THE POLICY. IT'S RETIRED BY LAW TO BE IN A CERTAIN MINIMUM, BUT 110 00:09:16.246 --> 00:09:20.665 THEY HAVE MADE A SELECTION OF WHAT IS IN THE POLICY SO WHAT I AM SUGGESTING IS 111 00:09:20.665 --> 00:09:25.522 THAT YOU WOULD NEED A NOTWITHSTANDING CLAUSE DID THAT /* THAT WOULD HAVE TO 112 00:09:25.522 --> 00:09:33.308 APPLY TO THE POLICY IN ORDER TO NEGATE THAT SELECTION BY THE EMPLOYER CONTRACTED 113 00:09:33.308 --> 00:09:36.107 FOR COVERAGE. MATTHEW G. BONANNO: YOUR HONOR I THINK THIS GOES 114 00:09:36.107 --> 00:09:40.515 TO THIS MAXIMUM AVAILABLE ISSUE AND RESPECTFULLY JUSTICE PATTERSON, WHEN YOU LOOK 115 00:09:40.515 --> 00:09:47.914 AT THIS LINE OF CASE LAY /* LAW, YES, I WILL ADMIT WHEN THESE CASES ARE 116 00:09:47.914 --> 00:09:53.002 TALKING ABOUT WHAT THE MAXIMUM AVAILABLE COVERAGE IS IN A CASE, THEY ARE DEALING 117 00:09:53.002 --> 00:09:57.321 WITH WHAT WAS SELECTED AND THERE IS A REASON BEHIND THAT BECAUSE QUITE HONESTLY, 118 00:09:57.321 --> 00:10:01.516 THESE POLICIES THAT PROVIDE MILLIONS AN MILLIONS OF DOLLARS OF LIABILITY 119 00:10:01.516 --> 00:10:07.970 COVERAGE AND LITTLE TO KNOW U I M COVERAGE JUST SIMPLY DIDN'T EXIST BACK THEN. 120 00:10:07.970 --> 00:10:11.365 IT WAS HERE IS A MILLION DOLLAR OF LIABILITY, HERE IS A MILLION DOLLAR OF 121 00:10:11.365 --> 00:10:16.399 U I M BUT NOW WE'RE GOING TO STEP IT DOWN. ONCE THE LEGISLATURE DID 122 00:10:16.399 --> 00:10:21.171 AWAY WITH THAT, THEN THE ISSUE CONTINUED TO BE WELL, IS SUBSECTION F RECEIPTED 123 00:10:21.171 --> 00:10:24.433 TROE ACTIVE. JUSTICE PATTERSON: LET'S TALK ABOUT STEP 124 00:10:24.433 --> 00:10:29.214 DOWNS BECAUSE WHAT YOUR ADVERSARY IS SAYING IS THAT THE TWO SENTENCES OF SUBSECTION 125 00:10:29.214 --> 00:10:35.957 F ARE BOTH STEP DOWN SECTIONS, THE FIRST ONE IS ABOUT STEP DOUNS BASED ON THE 126 00:10:35.957 --> 00:10:40.374 STATUS OF INSURED'S EMPLOYER VERSUS EMPLOYEE OR THE SLAL ABILITY OF OTHER 127 00:10:40.374 --> 00:10:47.014 INSURANCE BEING NOT THE DIS SPOKE SIT ACTIVE FACTOR AND THE SECOND IS ABOUT 128 00:10:47.014 --> 00:10:53.811 EMPLOYERS NOT BEING ABLE TO CIRCUMVENT THE REQUIREMENTS FOR THEMSELVES, BUT 129 00:10:53.811 --> 00:10:58.363 LEAVING THEIR EMPLOYEES IN A MORE VULNERABLE POSITION. WHY 130 00:10:58.363 --> 00:11:06.353 IS ZURICH WRONG TO SAY THAT BOTH OF THESE SENTENCES ARE MATERIAL, THEY ARE BOTH 131 00:11:06.353 --> 00:11:12.399 EFFECTIVE AND THEY DEAL WITH DIFFERENT ASPECTS OF STEP DOWNS. 132 00:11:12.399 --> 00:11:14.382 MATTHEW G. BONANNO: THANK YOU, JUSTICE PATTERSON. I THINK THERE 133 00:11:14.382 --> 00:11:17.854 ARE A COUPLE REASONS. FIRST WHEN THIS LEGISLATION WAS INTRODUCED 134 00:11:17.854 --> 00:11:22.484 THE LEGISLATIVE STATEMENT EXPRESSLY DEALT WITH THIS DUAL PURPOSE AND THEY SAY THAT 135 00:11:22.484 --> 00:11:28.976 THIS FIRST SENTENCE REVERSES PINTO BY BLANK STEP DOWN PROVISIONS AGAINST EMPLOYEES 136 00:11:28.976 --> 00:11:33.852 IN THEIR EMPLOYER'S BUSINESS POLICY SO THAT FIRST STEP DOWN, THERE IS NO 137 00:11:33.852 --> 00:11:40.291 DISPUTE HERE. THIS LEGISLATION SPECIFICALLY OVERTURNS STEP DOWN PROVISIONS 138 00:11:40.291 --> 00:11:44.550 AGAINST EMPLOYEES, BUT IT WENT A STEP FURTHER WITH THE SECOND SENTENCE THAT 139 00:11:44.550 --> 00:11:50.745 DEALS ONLY WITH THIS BUSINESS ENTITY AS AN INSURED CIRCUMSTANCE. AS 140 00:11:50.745 --> 00:11:55.963 THE APPELLATE COURT IN SYNCH NOTED THAT THERE ARE, QUOTE, CERTAIN CIRCUMSTANCES 141 00:11:55.963 --> 00:12:00.813 WHERE EMPLOYEES ARE ENTITLED TO THE MAXIMUM AMOUNT OF COVERAGE. 142 00:12:00.813 --> 00:12:03.338 JUSTICE WAINER APTER: YOU'RE REFERRING, SORRY TO THE LEGISLATIVE STATEMENT, 143 00:12:03.338 --> 00:12:05.927 CORRECT. MATTHEW G. BONANNO: IT STARTED WITH THE LEGISLATIVE 144 00:12:05.927 --> 00:12:12.734 STATEMENT, JUSTICE WAINER APTER WHERE THE LEGISLATURE SAID THAT THERE THERE WAS 145 00:12:12.734 --> 00:12:17.252 A FURTHER PURPOSE, FURTHER, EXPRESSLY THE PROVISION PROVIDES THAT A POLICY THAT 146 00:12:17.252 --> 00:12:21.829 NAMES A CORPORATE OR BUSINESS ENTITY AS A NAMED INSURED SHALL BE DEEMED TO PROVIDE 147 00:12:21.829 --> 00:12:25.864 THE MAXIMUM U I M COVERAGE AVAILABLE UNDER THAT POLICY. JUSTICE 148 00:12:25.864 --> 00:12:30.354 WAINER APTER: IT SAYS UNDER THAT PARTICULAR POLICY. 149 00:12:30.354 --> 00:12:32.188 MATTHEW G. BONANNO: CORRECT. JUSTICE WAINER APTER: SO WHY WOULD 150 00:12:32.188 --> 00:12:36.609 THAT REFER TO SOMETHING OTHER THAN THE PARTICULAR POLICY? 151 00:12:36.609 --> 00:12:41.759 MATTHEW G. BONANNO: BECAUSE THE MAXIMUM AVAILABLE LANGUAGE HAS NO CONTEXT OR 152 00:12:41.759 --> 00:12:45.681 INDEPENDENT MEANING SEPARATE AND APART FROM UNDER THAT PARTICULAR POLICY. IT 153 00:12:45.681 --> 00:12:50.212 RECOGNIZES THAT THE MAXIMUM AVAILABLE AMOUNT OF COVERAGE WILL ALWAYS BE DEFINED 154 00:12:50.212 --> 00:12:55.625 BY THE LIABILITY LIMITS CHOSEN IN EACH PARTICULAR POLICY. 155 00:12:55.625 --> 00:13:00.438 JUSTICE WAINER APTER: BUT IT DOESN'T SAY THAT. IF IT WANTED TO SAY, FOR EXAMPLE 156 00:13:00.438 --> 00:13:07.387 THAT THE AMOUNT OF U I M OR UM COVERAGE MUST BE THE SAME AS THE AMOUNT OF 157 00:13:07.387 --> 00:13:12.279 LIABILITY COVERAGE, WHICH SEEMS TO BE YOUR ARGUMENT, THEN IT COULD HAVE SAID 158 00:13:12.279 --> 00:13:19.760 THAT. INSTEAD, IT JUST SAYS -- AND IT TALKS ABOUT PINTO AND THE STEP DOWN 159 00:13:19.760 --> 00:13:23.790 PROVISIONS AN THEN A POLICY NAMED A CORPORATE OR BUSINESS ENTITY SHALL BE 160 00:13:23.790 --> 00:13:28.983 DEEMED TO PROVIDE THE MAXIMUM UNINSURED OR UNDERSTAND IN INSURED MOTORIST 161 00:13:28.983 --> 00:13:33.521 COVERAGE UNDER THAT PARTICULAR POLICY TO ANY INDIVIDUAL EMPLOYED BY, MAKING IT SEEM 162 00:13:33.521 --> 00:13:38.350 LIKE IF THE CORPORATION ITSELF IS CHOOSING FOR ITSELF OR FOR IETSZ NAMED 163 00:13:38.350 --> 00:13:44.186 INSURE /* INSURERS AN AMOUNT OF U /* UM OR U I M COVERAGE, THE EMPLOYEES MUST BE 164 00:13:44.186 --> 00:13:49.681 ENTITLED TO THAT SAME AMOUNT. WHERE DO WE SEE THAT IT IS NOT 165 00:13:49.681 --> 00:13:54.106 THAT THEY ARE TITLED TO THAT SAME AMOUNT AND THAT INSTEAD THEY ARE ENTITLED 166 00:13:54.106 --> 00:13:57.453 TO WHATEVER AMOUNT THE CORPORATION CHOSE AS THE TO GENERAL LIABILITY INSURANCE? 167 00:13:57.453 --> 00:14:01.175 MATTHEW G. BONANNO: I THINK IT'S UNDERSTAND THAT PLAN OF ACTION 168 00:14:01.175 --> 00:14:06.560 MUM AVAILABLE COVERAGE UNDER THE POLICY, AGAIN, THE MAXIMUM AVAILABLE HAS A MEANING 169 00:14:06.560 --> 00:14:12.742 WITHIN THE BUYER'S GUIDE AND WITHIN U I M COVERAGE AND THE STATUTORY FRAMEWORK. 170 00:14:12.742 --> 00:14:18.347 AGAIN, THIS FIRST SENTENCE GUARANTEES THAT ALL EMPLOYEES ARE 171 00:14:18.347 --> 00:14:25.011 ENTITLED TO WHATEVER IS STATED IN THE POLICY BY ELIMINATING STEP DOWNS IT 172 00:14:25.011 --> 00:14:30.413 GUARANTEES THAT EMPLOYEES ARE ENTITLED TO WHAT IS SET IN THAT POLICY. 173 00:14:30.413 --> 00:14:35.979 JUSTICE PATTERSON: WE'RE TALKING ABOUT UM AND U I M SO WHY SHOULDN'T WE LOOK 174 00:14:35.979 --> 00:14:41.556 AT THIS AND SAY WHAT IS THE UM AND U I M THAT IS STATED IN THE POLICY BECAUSE 175 00:14:41.556 --> 00:14:45.824 THE EMPLOYER IS NOT GOING TO GET AWAY WITH THIS IS A MILLION DOLLAR FOR US 176 00:14:45.824 --> 00:14:53.359 AND $50 /* 15,000 FOR THE EMPLOYEES IT IS LOOK AT THE UM AND U I M LIMITS IN THE 177 00:14:53.359 --> 00:14:57.848 POLICY. MATTHEW G. BONANNO: BECAUSE REALISTICALLY, 178 00:14:57.848 --> 00:15:05.581 JUSTICE PATTERSON, HERE, T J MAX IS NEVER GOING TO USE UM OR U I M COVERAGE. THE 179 00:15:05.581 --> 00:15:08.931 WAY THIS POLICY IS WRITTEN. JUSTICE WAINER APTER: ISN'T THAT CONTRARY 180 00:15:08.931 --> 00:15:14.415 TO THE WHOLE PURPOSE, I THOUGHT, OF F SO IT HAD BEEN BEFORE UNDERSTAND PINTO 181 00:15:14.415 --> 00:15:19.680 THE CORPORATION COULD CHOOSE AN AMOUNT OF UM AND U I M FOR ITSELF AND THEN A LESSER 182 00:15:19.680 --> 00:15:24.206 AMOUNT FOR ITS EMPLOYEES, CORRECT? MATTHEW G. BONANNO: NOT 183 00:15:24.206 --> 00:15:30.581 CHOOSE TWO SEPARATE AMOUNTS, THEY WOULD USE AN AMOUNT OF UM AND U I M AND THEN 184 00:15:30.581 --> 00:15:34.481 THE STEP DOWN WOULD ESSENTIALLY STEP IT DOWN TO WHATEVER THE POLICY PROVIDES THE 185 00:15:34.481 --> 00:15:38.662 STATUTORY MINIMUM OR IF THEY WANT TO SAY YOUR PERSONAL POLICY OR SOMETHING LIKE 186 00:15:38.662 --> 00:15:41.074 THAT. JUSTICE WAINER APTER: THEY STEPPED IT DOWN ONLY 187 00:15:41.074 --> 00:15:44.736 FOR THE EMPLOYEES, NOT FOR THE CORPORATION ITSELF. MATTHEW G. 188 00:15:44.736 --> 00:15:48.837 BONANNO: HOWEVER THE STEP DOWN READS IT WOULD USUALLY READ SOMETHING ALONG THE 189 00:15:48.837 --> 00:15:53.119 LINES OF SOMEONE WHO IS NOT AN UM INSURED. JUSTICE WAINER APTER: 190 00:15:53.119 --> 00:15:58.285 WHAT WAS THE POINT IF THE CORPORATION WOULD NEVER USE UM OR U I M FOR ITSELF 191 00:15:58.285 --> 00:16:03.495 AND SO THE STEP DOWN WAS PURPOSE LESS. MATTHEW G. BONANNO: IT'S RECOGNIZED 192 00:16:03.495 --> 00:16:09.057 IN THE CASE CITED WHERE THE COURT HOLDS THESE LEGAL ENTITIES WILL NEVER 193 00:16:09.057 --> 00:16:12.138 SUFFER BODILY INJURIES. JUSTICE PATTERSON: BUT THEIR OWNERS HAD 194 00:16:12.138 --> 00:16:17.320 THE ABILITY TO PUT THEMSELVES IN THE POLICY AS A NAMED INSURED, OWNERS C 195 00:16:17.320 --> 00:16:22.357 EO, THE EXECUTIVES, WHOEVER THEY WANT, THE COMPANY COULD SAY THESE ARE THE PRIVILEGED 196 00:16:22.357 --> 00:16:28.284 FEW WHO ARE GOING TO GET X AMOUNT OF COVERAGE AND WHAT THE LEGISLATURE 197 00:16:28.284 --> 00:16:35.278 CLEARLY WAS ACTING TO DO WAS TO SAY THAT THE OWNERS CAN NET /* NOT GET A BENEFIT 198 00:16:35.278 --> 00:16:39.636 THAT IS NOT AVAILABLE TO THEIR EMPLOYEES IF THE EMPLOYEES ARE USING A CORPORATE 199 00:16:39.636 --> 00:16:43.028 VEHICLE. MATTHEW G. BONANNO: JUSTICE PATTERSON, I THINK THAT'S 200 00:16:43.028 --> 00:16:48.965 A SEPARATE FACT PATTERN AND I AGREE WITH YOU SO IF -- LET'S SAY. 201 00:16:48.965 --> 00:16:52.533 JUSTICE PATTERSON: YES, OF COURSE, CORPORATIONS /* CORPORATIONS ARE NOT IN CAR 202 00:16:52.533 --> 00:16:58.090 ACCIDENTS, BUT KORNGSZ /* KORNGSZ HAVE THE ABILITY, KORPGSZ HAVE THE ABILITY 203 00:16:58.090 --> 00:17:02.464 WHICH IS CLEARLY SOMETHING THAT CONCERNED THE LEGISLATURE TO PUT THE PEOPLE IN 204 00:17:02.464 --> 00:17:06.544 ITS NAMED INSUREDS AND THEN PROVIDE THE SAME BENEFITS TO ITS EMPLOYEES WHO ARE 205 00:17:06.544 --> 00:17:10.584 DRIVING THE VEHICLES. MATTHEW G. BONANNO: ABSOLUTELY, IN THAT 206 00:17:10.584 --> 00:17:15.694 CIRCUMSTANCE IF IT IS MOM AND POP INC. AND MOM AND 307 /* POP ARE NAMED INSUREDS 207 00:17:15.694 --> 00:17:20.575 ALONG WITH MOM AND POP INC. YES THERE ARE NATURAL /* ACTUAL PEOPLE WHO BEAR THE 208 00:17:20.575 --> 00:17:26.563 RISK OF UM, U I M KOVRGS /* COVERAGE THAT WOULD ATTACH TO EMPLOYEES BUT 209 00:17:26.563 --> 00:17:30.528 IN THE CIRCUMSTANCE WE'RE DEALING WITH HERE, IT IS SOLELY A CORPORATION THAT WOULD 210 00:17:30.528 --> 00:17:33.272 BE THE NAMED INSURED. JUSTICE HOFFMAN: THAT WOULD JUST BE 211 00:17:33.272 --> 00:17:39.075 THE MOM AND POP IF IT WAS T J X AND THEN YOU WOULD NOT HAVE AN ARGUMENT. 212 00:17:39.075 --> 00:17:41.812 MATTHEW G. BONANNO: BASED UPON THE READING OF JAMES OF THIS 213 00:17:41.812 --> 00:17:44.853 STATUTE I WOULD NOT BE MAKING THIS ARGUMENT. JUSTICE WAINER 214 00:17:44.853 --> 00:17:50.367 APTER: THE CEO WOULD STILL BE ENTITLED TO THE SAME AMOUNT OF ANY EMPLOYEE. 215 00:17:50.367 --> 00:17:54.325 MATTHEW G. BONANNO: ASSUMING THE CEO OF THE $50 BILLION A YEAR INDUSTRY 216 00:17:54.325 --> 00:18:00.097 WANTS TO ACCEPT THE RISK OF ONLY -- IF HE IS DRIVING THE COMPANY'S CAR HAVING 217 00:18:00.097 --> 00:18:06.231 $15,000 OF INSURANCE COVERAGE, THAT SEEMS UNLIKELY TO ME BUT IF THE CEO -- 218 00:18:06.231 --> 00:18:10.161 JUSTICE WAINER APTER: JUST UNDER THIS POLICY THE CEO COULD 219 00:18:10.161 --> 00:18:14.201 CONTRACT IN A SEPARATE POLICY FOR WHATEVER HE OR SHE WANTS BUT UNDERSTAND THIS 220 00:18:14.201 --> 00:18:19.013 POLICY THE CEO IS ENTITLED ONLY TO WHAT EVERY OTHER SINGLE EMPLOYEE IS 221 00:18:19.013 --> 00:18:20.779 ENTITLED TO. MATTHEW G. BONANNO: UNDER THE READING OF THE 222 00:18:20.779 --> 00:18:25.564 STATUTE THE CEO WOULD BE ENTITLED TO THE MAXIMUM AVAILABLE COVERAGE. 223 00:18:25.564 --> 00:18:29.659 CHIEF JUSTICE RABNER: CAN YOU TELL US WHAT THE INDUSTRY PRACTICES TODAY ARE COMPANIES 224 00:18:29.659 --> 00:18:33.860 OTHER THAN ZURICH PAYING IN A CASE SUCH AS THIS $2 MILLION. MATTHEW 225 00:18:33.860 --> 00:18:36.961 G. BONANNO: I COULD ONLY TELL YOU ABOUT MY PRACTICE AND MY DISCUSSION OF OTHERS 226 00:18:36.961 --> 00:18:43.373 IN N J A J. IN MY 13 YEARS OF PRACTICE, THE CHIACCHERI POLICY IS THE FIRST 227 00:18:43.373 --> 00:18:50.739 BUSINESS POLICY I'VE EVER SEEN WITH LESS U I M COVERAGE THAN LIABILITY COVERAGE. 228 00:18:50.739 --> 00:18:56.860 TRAVIESO WAS THE SECOND, BOTH BY ZURICH. I HAVE NEVER SEEN ANOTHER POLICY 229 00:18:56.860 --> 00:19:01.986 WRITTEN BY ANY OTHER SURER THAT HAS BEEN USING THIS PRACTICE AND OVER THE COURSE 230 00:19:01.986 --> 00:19:08.666 OF 20 YEARS SINCE -- ALMOST 20 YEARS SINCE THIS STATUTE HAS COME INTO EFFECT, 231 00:19:08.666 --> 00:19:14.053 NO, I HAVE NEVER SEEN ANY OTHER POLICY THAT HAS THIS. CHIEF JUSTICE 232 00:19:14.053 --> 00:19:20.975 RABNER: PRIOR TO 2007'S AMENDMENT, THIS SCENARIO THAT YOU'VE DESCRIBED OF 233 00:19:20.975 --> 00:19:24.824 GETTING THE MAXIMUM COVERAGE PAYMENT WOULD NOT HAVE TAKEN PLACE, CORRECT? 234 00:19:24.824 --> 00:19:28.623 MATTHEW G. BONANNO: IT WASN'T HAPPENING BECAUSE OF THE STEP DOWNS. THEY 235 00:19:28.623 --> 00:19:31.596 GOT IT /* AROUND IT BY STEP DOWNS. CHIEF JUSTICE RABNER: 236 00:19:31.596 --> 00:19:36.203 YOUR ARGUMENT IS THAT THE LEGISLATURE INTENDED A RATHER SUBSTANTIAL CHANGE 237 00:19:36.203 --> 00:19:38.938 THROUGH THE 2007 AMENDMENT, RIGHT? MATTHEW G. BONANNO: ABSOLUTELY. 238 00:19:38.938 --> 00:19:41.390 CHIEF JUSTICE RABNER: WOULDN'T WE HAVE EXPECTED THEN CLEAR, 239 00:19:41.390 --> 00:19:44.737 PLAIN LANGUAGE FROM THE LEGISLATURE TO THAT EFFECT? MATTHEW G. 240 00:19:44.737 --> 00:19:50.452 BONANNO: I THINK THE PLAIN LANGUAGE IS IN THERE, CHIEF JUSTICE. 241 00:19:50.452 --> 00:19:53.142 CHIEF JUSTICE RABNER: WE DON'T SEE LANGUAGE TO THE EFFECT THAT THE DOLLAR AMOUNT 242 00:19:53.142 --> 00:19:59.246 OF COVERAGE ON THIS POLICY SHALL BE THE MAXIMUM AMOUNT PROVIDED BY LAW, 243 00:19:59.246 --> 00:20:04.638 ALLOWED BY LAW, THAT MIGHT HAVE ANSWERED THIS IN A TIGHT, CLEAR, WAY. 244 00:20:04.638 --> 00:20:07.892 IS THAT TYPE OF CLEAR STATEMENT IN THE STATUTE? MATTHEW G. 245 00:20:07.892 --> 00:20:12.211 BONANNO: I DON'T THINK -- WELL, I KNOW THOSE EXACT WORDS AREN'T IN THE STATUTE. 246 00:20:12.211 --> 00:20:17.047 TO ME I READ IT THE SAME WAY, MAXIMUM AVAILABLE COVERAGE SHALL BE DEEMED 247 00:20:17.047 --> 00:20:21.303 TO PROVIDE MAXIMUM AMOUNT OF COVERAGE UNDER THE POLICY. JUSTICE 248 00:20:21.303 --> 00:20:26.319 PATTERSON: WHY ISN'T THAT UM AND U I M BECAUSE WE KNOW THAT IS WHAT IT IS ABOUT? 249 00:20:26.319 --> 00:20:30.288 WHY ISN'T THE MAXIMUM AVAILABLE COVERAGE UNDER THE POLICY, 250 00:20:30.288 --> 00:20:34.703 THE MAXIMUM AVAILABLE COVERAGE THAT APPEARS IN THE POLICY HERE. 251 00:20:34.703 --> 00:20:38.546 MATTHEW G. BONANNO: BECAUSE THAT'S THE SELECTED OR CHOSEN AMOUNT. 252 00:20:38.546 --> 00:20:42.155 JUSTICE PATTERSON: SO MAXIMUM AVAILABLE COVERAGE UNDERSTAND THE POLICY FOR UM 253 00:20:42.155 --> 00:20:48.425 AND U I M IS DIFFERENT FROM WHAT IS CHOSEN BY THE POLICY HOLDER. 254 00:20:48.425 --> 00:20:52.018 MATTHEW G. BONANNO: ABSOLUTELY AND THAT'S WHAT IS SHOWN IN THE BUYER'S GUIDE. 255 00:20:52.018 --> 00:20:56.180 IT TALKS ABOUT AVAILABLE COVERAGE UNDERSTAND THE POLICY AND THEN 256 00:20:56.180 --> 00:21:00.294 COMPLETELY AND SEPARATELY TALKS ABOUT WHAT IS CHOSEN. JUSTICE 257 00:21:00.294 --> 00:21:05.780 PATTERSON: WHY DOESN'T BUYER'S GUIDE SIMPLY MEAN YOU'RE GOING TO HAVE CHOICES 258 00:21:05.780 --> 00:21:12.706 HERE. THIS IS A BUYER'S GUIDE PROVIDED TO AN INSURED WHO HAS -- WHO PRESUMABLY 259 00:21:12.706 --> 00:21:17.597 IS GOING TO BE MAKING SOME CHOICES AN ONE OF THOSE CHOICES IS MAYBE A LOT HIGHER 260 00:21:17.597 --> 00:21:24.922 IT MIGHT BE $1 MILLION IN UM, U I M, BUT IT IS ALL TETHERED TO THE POLICY, 261 00:21:24.922 --> 00:21:28.898 IS IT NOT. MATTHEW G. BONANNO: RESPECTFULLY, IT IS NOT 262 00:21:28.898 --> 00:21:34.261 BECAUSE, AGAIN, IT TALKS ABOUT THIS CONCEPT OF AVAILABLE TALKS ABOUT THE RANGE OF 263 00:21:34.261 --> 00:21:40.846 COVERAGE OPTIONS; THAT'S WHAT AVAILABLE TLIE OUT UM AND U I M, THAT'S HOW THAT 264 00:21:40.846 --> 00:21:45.422 WORD IS USED. THE WORD CHOSEN OR SELECTED, THERE IS AN 265 00:21:45.422 --> 00:21:49.688 ENTIRELY DIFFERENT MEANING. I THINK IT IS IMPORTANT WHEN YOU LOOK AT. 266 00:21:49.688 --> 00:21:53.767 JUSTICE WAINER APTER: SORRY WHEN YOU SAY THE MAXIMUM AVAILABLE, FOCUSING 267 00:21:53.767 --> 00:21:58.427 ON THE WORD AVAILABLE YOU'RE SAYING THE MAXIMUM AVAILABLE UNDER THE POLICY IS 268 00:21:58.427 --> 00:22:02.393 ALWAYS THE MAXIMUM THAT THE PURCHASER COULD HAVE CHOSEN, NOT THE MAXIMUM 269 00:22:02.393 --> 00:22:07.163 THAT THE PURCHASER DID CHOOSE? MATTHEW G. BONANNO: YES AND THAT'S 270 00:22:07.163 --> 00:22:11.325 AGAIN, IF YOU LOOK AT THE BUYER'S GUIDE IT TALKS ABOUT THE MAXIMUM AVAILABLE 271 00:22:11.325 --> 00:22:15.226 IS UP TO AMOUNTS OF SELECTED FOR LIABILITY COVERAGE. JUSTICE 272 00:22:15.226 --> 00:22:21.892 MICHAEL NORIEGA: IS THAT READING -- IF WE ACCEPT YOU'RE RULE IN THIS CASE, WOULD 273 00:22:21.892 --> 00:22:25.919 THAT ACCEPT ALL COMMERCIAL ENDORSEMENTS THAT ARE NOT SET TO THE LIABILITY 274 00:22:25.919 --> 00:22:32.055 MAXIMUM IF /* EVEN IF THEY HAVE BEEN NEGOTIATED BY SOPHISTICATED INSUREDS DOES 275 00:22:32.055 --> 00:22:35.354 THAT MEAN THEY'RE ALL INVALIDATED. MATTHEW G. BONANNO: NOT 276 00:22:35.354 --> 00:22:38.940 ALL JUST THE ONES THAT DON'T SATISFY THE STATUTORY REQUIREMENTS. 277 00:22:38.940 --> 00:22:43.085 JUSTICE MICHAEL NORIEGA: IF THOUGH DON'T MEET THAT STATUTORY LIABILITY LIMIT THE 278 00:22:43.085 --> 00:22:47.168 MAXIMUM YOU'RE SUGGESTING YOU WOULD SUGGEST THEY ARE INVALIDATED. 279 00:22:47.168 --> 00:22:50.914 MATTHEW G. BONANNO: IF IT IS A CORPORATE OR BUSINESS ENTITY ONLY NAMED INSURED 280 00:22:50.914 --> 00:22:58.740 SO FOR INSTANCE THE CEO OR THE OWNER DID NOT NEGOTIATE ESSENTIALLY A LOWER U I 281 00:22:58.740 --> 00:23:04.509 M COVERAGE IF IT IS SOLELY AN ENTITY INSURED THEN YES. JUSTICE HOFFMAN: 282 00:23:04.509 --> 00:23:12.838 AND EVEN IF THE PREMIUM, TO ADD ON TO JUSTICE NOR'S QUESTION, IF THE PREMIUM IS 283 00:23:12.838 --> 00:23:17.007 NEGOTIATED BASED UPON A MUTUAL UNDERSTANDING OF THE PARTIES THAT IS 284 00:23:17.007 --> 00:23:21.195 DIFFERENT THAN YOURS YOU WOULD SAY REGARDLESS OF THAT NEGOTIATION OF THE PREMIUM 285 00:23:21.195 --> 00:23:25.352 BASED ON THAT UNDERSTANDING THAT IS OFFICE /* OPPOSITE OF YOUR WE'RE GOING 286 00:23:25.352 --> 00:23:28.783 TO SAY THIS IS THE MAXIMUM, THE AMOUNT. MATTHEW G. BONANNO: RESPECTFULLY 287 00:23:28.783 --> 00:23:41.356 JUSTICE HOVR, THE LORE SAID THAT. WE'RE TALKING /*ING U M, U I M, BUT WE HAVE 288 00:23:41.356 --> 00:23:47.521 NO EVIDENCE, AGAIN, ABOUT WHAT THE PREMIUM GIN CLEES WOULD BE, I THINK STUDIES 289 00:23:47.521 --> 00:23:55.353 SHOW THAT THE PREMIUM PORTION OF AN UM U I M COVERAGE IS ABOUT 3 PERCENT 290 00:23:55.353 --> 00:24:01.954 OF THE OVERALL AND IF YOU WILL INDULGE ME FOR A SECOND AND IF YOU LOOK AT N.J.S.A. 291 00:24:01.954 --> 00:24:07.999 -- I MEAN IT SHOULD BE A SIMPLE ANSWER FOR THE INSURANCE INDUSTRY. WE HAVE THREE 292 00:24:07.999 --> 00:24:12.919 INSURANCE INDUSTRY AMICUS HERE THAT PROVIDE NO INSIGHT INTO WHAT THIS CHANGE IN 293 00:24:12.919 --> 00:24:16.731 PREMIUM WOULD BE, BUT IF YOU LOOK AT SUBSECTION B. JUSTICE 294 00:24:16.731 --> 00:24:22.383 PATTERSON: ISN'T THAT -- WOULDN'T THAT ULTIMATELY BE DETERMINED IF YOUR ROLE WERE 295 00:24:22.383 --> 00:24:30.201 TO BE ACCEPTED BY ANALYZING WHAT THE RISK IS, HOW MANY TIMES ARE EMPLOYEES 296 00:24:30.201 --> 00:24:39.274 DRIVING CORPORATE VEHICLES IN COLLISIONS R COLLISIONS WITH UNASSURED OR UNDER INSURED 297 00:24:39.274 --> 00:24:44.590 MOTORISTS, THE ANALYSIS OF THIS, BUT YOU DON'T HAVE ANY PRECEDENT FOR YOUR 298 00:24:44.590 --> 00:24:47.904 INTERPRETATION BEING ADOPTED, DO YOU? MATTHEW G. BONANNO: I APOLOGIZE 299 00:24:47.904 --> 00:24:51.071 FOR MY INTERRUPTION. JUSTICE PATTERSON: SURE, NO PROBLEM. 300 00:24:51.071 --> 00:24:53.774 MATTHEW G. BONANNO: AGAIN, THERE IS NO PRECEDENT BECAUSE, 301 00:24:53.774 --> 00:24:59.060 AGAIN, THESE POLICIES IN MY EXPERIENCE SIMPLY DIDN'T EXIST, BUT IF YOU LOOK AT 302 00:24:59.060 --> 00:25:05.442 SUBSECTION B IT SPECIFICALLY SAYS RATES FOR UM AND U I M COVERAGE FOR THE 303 00:25:05.442 --> 00:25:11.961 SAME LIMB /* LIMITS SHALL FOR EACH FILER BE UNIFORM ON A STATE WIDE BASIS WITHOUT 304 00:25:11.961 --> 00:25:15.939 REGARD TO CLASSIFICATION OR TERRITORY SO UNDERSTAND SUBSECTION B THAT SHOULD BE 305 00:25:15.939 --> 00:25:20.402 AN EASY ANSWER FOR THE INSURANCE INDUSTRY. THEY ARE UNIFORM PREMIUMS ASSOCIATED 306 00:25:20.402 --> 00:25:23.571 WITH THESE LIMITS. JUSTICE WAINER APTER: UNDERSTAND SECTION 307 00:25:23.571 --> 00:25:30.795 B OF THE STATUTE, IT SAYS, ACCEPT THE LIMITS FOR UNINSURED OR UNDER INSURED 308 00:25:30.795 --> 00:25:35.873 MOST RIS COVERAGE SHALL NOT EXCEED THE INSURED MOTOR VEHICLE POLICY PROPERTY DAMAGE 309 00:25:35.873 --> 00:25:41.665 RESPECTIVELY. UNDER YOUR READING SHOULDN'T IT HAVE SAID 310 00:25:41.665 --> 00:25:47.582 EXCEPT THAT THE LIMITS FOR UNINSURED AND UNDER INSURED MOTORIST COVERAGE SHALL EQUAL 311 00:25:47.582 --> 00:25:54.258 THE #1450URD'S EQUAL LIABILITY POLICY LIMITS FOR CORPORATE ENTITIES. 312 00:25:54.258 --> 00:25:59.829 MATTHEW G. BONANNO: B ISN'T A CORPORATE SPECIFIC SECTION. IT DEALS WITH 313 00:25:59.829 --> 00:26:02.659 PEOPLE. IT DEALS WITH INDIVIDUALS. JUSTICE WAINER APTER: 314 00:26:02.659 --> 00:26:09.343 IT IMPLIES THAT THERE IS A DIFFERENCE BETWEEN UM AND U I M ON ONE HAND AND THE 315 00:26:09.343 --> 00:26:14.167 LIABILITY LIMITS ON THE OTHER HAND AND THAT UM AND U I M CAN BE LESS THAN, 316 00:26:14.167 --> 00:26:19.522 BUT NOT GREATER THAN THE LIABILITY LIMIT, CORRECT? MATTHEW G. 317 00:26:19.522 --> 00:26:22.038 BONANNO: ABSOLUTELY. JUSTICE WAINER APTER: SO IF THERE WAS A 318 00:26:22.038 --> 00:26:27.602 SEPARATE RULE FOR CORPORATIONS WHERE UM AND U I M COULD NOT BE LESS THAN THAN THE 319 00:26:27.602 --> 00:26:32.253 LIABILITY LIMIT, SHOULDN'T THE LEGISLATURE HAVE SAID SO SOMEWHERE. 320 00:26:32.253 --> 00:26:34.824 MATTHEW G. BONANNO: I THINK THEY DID IN SUBSECTION F. JUSTICE 321 00:26:34.824 --> 00:26:38.561 WAINER APTER: WHICH PARTICULAR WORDS IN SUBSECTION F, JUST THE WORD AVAILABLE? 322 00:26:38.561 --> 00:26:44.843 /* OR AVAILABLE UNDER THE POLICY? MATTHEW G. BONANNO: IT'S 323 00:26:44.843 --> 00:26:49.714 THAT ENTIRE SECOND SENTENCE A POLICY THAT NAMES A CORPORATE OR BUSINESS ENTITY 324 00:26:49.714 --> 00:26:55.302 AS THE NAMED INSURED SHALL BE DEEMED TO PROVIDE THE MAXIMUM UM, U I M COVERAGE 325 00:26:55.302 --> 00:27:00.221 AVAILABLE UNDERSTAND THE POLICY TO AN INDIVIDUAL EMPLOYEE BY THAT ENTITY AND THEN 326 00:27:00.221 --> 00:27:03.990 IT TALKS ABOUT REGARDLESS OF WHETHER THE INDIVIDUAL -- SO REGARDLESS OF 327 00:27:03.990 --> 00:27:08.056 THAT EMPLOYEE, WHETHER THEY ARE AN ADDITIONAL NAMED INSURED ON THE POLICY, 328 00:27:08.056 --> 00:27:10.066 WHETHER THEY ARE A NAMED INSURED. JUSTICE WAINER APTER: IT 329 00:27:10.066 --> 00:27:14.508 SEEMS TO BE SAYING FOR SOMEONE WHO IS A NAMED INSURED VERSUS A REGULAR 330 00:27:14.508 --> 00:27:18.329 EMPLOYEE THEY SHOULD GET THE SAME, NOT THAT IT HAS TO BE THE SAME AS A LIABILITY 331 00:27:18.329 --> 00:27:24.856 LIMIT WHICH IS ADDRESSED IN A SEPARATE SECTION IN A WAY THAT U I M AND UM CAN BE 332 00:27:24.856 --> 00:27:27.900 LESS THAN IT. MATTHEW G. BONANNO: I MEAN, JUSTICE WAINER 333 00:27:27.900 --> 00:27:33.135 APTER, I RESPECTFULLY READ IT A DIFFERENT WAY AND, THAT, AGAIN, YOU COME 334 00:27:33.135 --> 00:27:38.936 BACK TO THAT MAXIMUM AVAILABLE AND IN THIS CONTEXT OF UM, U I M THAT'S ACCEPTED 335 00:27:38.936 --> 00:27:43.484 LANGUAGE THROUGHOUT THE INSURANCE BUYER'S GUIDE THROUGHOUT THE CASE LAW. 336 00:27:43.484 --> 00:27:51.126 WHEN WE LOOK AT -- I CITED PSYCHING AND /* SIEKING AND BRINGS 337 00:27:51.126 --> 00:27:57.132 SUIT TOE, THEY TALK ABOUT THIS MAXIMUM UM, U I M COVERAGE AND THEY HAVE THIS HISPANIC, 338 00:27:57.132 --> 00:28:01.003 HISTORY OF PURCHASING THE MAXIMUM AVAILABLE COVERAGE. 339 00:28:01.003 --> 00:28:05.639 JUSTICE PATTERSON: LET'S SAY AN INSURANCE COMPANY OFFERS EVERYTHING FROM $15 THOUSAND 340 00:28:05.639 --> 00:28:11.666 TO YOU /*,000 TO A MILLION AND INCREMENTS IN BETWEEN IS A MILLION THE MAXIMUM, 341 00:28:11.666 --> 00:28:18.901 THIS IS UM, U I M IS A MILLION DOLLAR THE MAXIMUM AVAILABLE COVERAGE OR WHEN YOU 342 00:28:18.901 --> 00:28:24.811 SEE THE WORDS IN THE POLICY DOES THAT CONVEY THE ONE WE'RE INTERESTED IS 343 00:28:24.811 --> 00:28:29.470 THE ONE IN THE POLICY; THAT'S THE ONE THAT IS BARRINGED FOR. 344 00:28:29.470 --> 00:28:33.374 MATTHEW G. BONANNO: I DON'T WANT TO MISSTATED. SUBSECTION F 345 00:28:33.374 --> 00:28:39.157 DOES NOT SAY RESPECTFULLY IN THE POLICY, IT SAYS UNDER THE POLICY AND I THINK THAT IS 346 00:28:39.157 --> 00:28:43.751 A BIG DISTINCTION. IN THE POLICY, YES, I THINK IT WOULD BE 347 00:28:43.751 --> 00:28:47.725 A HARDER ARGUMENT BECAUSE THAT'S DIRECTLY IN THE POLICY. JUSTICE 348 00:28:47.725 --> 00:28:51.759 PATTERSON: WHAT DOES UNDER THE POLICY MEAN? MATTHEW G. 349 00:28:51.759 --> 00:28:57.046 BONANNO: THE AVAILABLE OPTIONS UNDERSTAND THE POLICY WHEN YOU'RE PURCHASING IT. 350 00:28:57.046 --> 00:28:59.494 JUSTICE PATTERSON: WHEN A POLICY IS ISSUED THE CHOICE IS 351 00:28:59.494 --> 00:29:04.611 MADE, IS IT NOT? THE POLICY DOESN'T SAY HERE IS TEN DIFFERENT 352 00:29:04.611 --> 00:29:09.144 POSSIBLE LIMITS, THERE IS AN ELECTION THAT IS BARRINGED FOR THAT IS ASSUMING THERE 353 00:29:09.144 --> 00:29:13.731 ARE A BUNCH OF LIMITS THAT ARE OFFERED, ONE IS SELECTED, RIGHT. 354 00:29:13.731 --> 00:29:16.454 MATTHEW G. BONANNO: ABSOLUTELY. JUSTICE PATTERSON: SO WHY ISN'T 355 00:29:16.454 --> 00:29:20.380 UNDER THE POLICY IT'S NOT AVAILABLE UNDER THE LAW, IT IS UNDER THE POLICY, 356 00:29:20.380 --> 00:29:25.266 WHY DOESN'T UNDER THE POLICY MEAN THE SAME AS IN THE POLICY WHICH YOU CONCEDE WOULD BE 357 00:29:25.266 --> 00:29:27.874 A PROBLEM FOR YOU. MATTHEW G. BONANNO: WELL, I THINK IT WOULD BE 358 00:29:27.874 --> 00:29:33.557 -- AGAIN, IF WE USE THE WORD SELECTED OR CHOSEN IT'S CLEAR, THAT IS THE SELECTED 359 00:29:33.557 --> 00:29:40.500 -- AVAILABLE HAS A DIFFERENT CONTEXT AND AVAILABLE IN THE POLICY -- I THINK. 360 00:29:40.500 --> 00:29:43.215 JUSTICE PATTERSON: AVAILABLE UNDER THE POLICY IS THE ACTUAL LANGUAGE, 361 00:29:43.215 --> 00:29:45.277 AM I RIGHT? MATTHEW G. BONANNO: YES. JUSTICE 362 00:29:45.277 --> 00:29:51.735 PATTERSON: COVERAGE AVAILABLE UNDER THE POLICY WHAT IS THE KORJ UM AND U I M 363 00:29:51.735 --> 00:29:55.574 AVAILABLE UNDER THIS COMPLETED, BARRINGED FOR POLICY? MATTHEW G. 364 00:29:55.574 --> 00:29:57.761 BONANNO: SPECIFICALLY IN THIS CASE? JUSTICE PATTERSON: YES. 365 00:29:57.761 --> 00:30:00.777 MATTHEW G. BONANNO: IT WOULD BE $2 MILLION. THE 366 00:30:00.777 --> 00:30:09.309 STATUTE B REQUIRES AN INSURER TO OFFER UP TO AND THIS COULD BE A BLANK ISSUE, JUSTICE 367 00:30:09.309 --> 00:30:13.689 PATTERSON, SO THE STATUTE REQUIRES AND RO ONLY THAT UM, U I M BE OFFERED 368 00:30:13.689 --> 00:30:20.871 UP TO $250,000 AS A MANDATORY DICTATE, RIGHT, BUT THEN IT GOES ON TO SAY BUT UM, 369 00:30:20.871 --> 00:30:24.698 U I M CAN'T EXCEED THE LIABILITY. JUSTICE WAINER APTER: IT 370 00:30:24.698 --> 00:30:29.407 SETS A MINIMUM, RIGHT, THERE IS A MINIMUM. MATTHEW G. BONANNO: 371 00:30:29.407 --> 00:30:38.636 STATUTORILY IT MEETS -- FOR PERSONAL POLICIES -- JUSTICE WAINER APTER IF A 372 00:30:38.636 --> 00:30:44.183 CORPORATION ONLY NEEDED $50,000 OF INSURANCE COVERAGE TO COVER ITSELF, THEN IT CAN 373 00:30:44.183 --> 00:30:50.955 CHOOSE THAT $50,000 FOR THE UM, U I M, BUT F ACKNOWLEDGES THAT, AGAIN, THAT DECISION 374 00:30:50.955 --> 00:30:55.761 IS STRIPPED AWAY FROM THE PEOPLE WHO ACTUALLY USE THE UM AND U I M COVERAGE 375 00:30:55.761 --> 00:30:59.980 AND THE LEGISLATURE WAS PROTECTING AGAINST THAT. I THINK IT IS IMPORTANT WHEN 376 00:30:59.980 --> 00:31:05.683 WE LOOK AT SUBSECTION F, WHAT IT ALSO MEANT -- AS DEFRJS POINTS OUT IN ITS 377 00:31:05.683 --> 00:31:13.189 PAPERS, PRIOR TO 2022 U I M COVERAGE WAS NOT MANDATORY IN NEW JERSEY. IT WAS AN 378 00:31:13.189 --> 00:31:17.847 OPTION AND IN PRACTICE IT WAS ALWAYS OFFERED WITH UM, THEY OPERATED 379 00:31:17.847 --> 00:31:22.370 TOGETHER, BUT UNDERSTAND THE STATUTE IT WASN'T MANDATORY, BUT WHEN WE LOOK AT SUBSECTION 380 00:31:22.370 --> 00:31:28.504 F IN 2007 WHEN THE LEGISLATURE EVEN AKTDZ SUBSECTION F THEY PROVIDED THAT 381 00:31:28.504 --> 00:31:33.511 THESE POLICIES SHALL BE DEEMED TO PROVIDE U I M COVERAGE IN THE MAXIMUM AMOUNT, 382 00:31:33.511 --> 00:31:36.777 RIGHT? JUSTICE PATTERSON: THE MAXIMUM AMOUNT? 383 00:31:36.777 --> 00:31:42.069 MATTHEW G. BONANNO: RIGHT, BUT AT THE SAME TIME THEY ARE NOW MANDATING U I M COVERAGE 384 00:31:42.069 --> 00:31:44.653 WHICH AT THE TIME WAS OPTIONAL. JUSTICE PATTERSON: AREN'T 385 00:31:44.653 --> 00:31:48.485 THEY MANDATING IT IN THE MINIMUM AMOUNT? MATTHEW G. BONANNO: 386 00:31:48.485 --> 00:31:50.757 YES. JUSTICE PATTERSON: YOU SAID MAXIMUM. MATTHEW G. 387 00:31:50.757 --> 00:31:54.889 BONANNO: I APOLOGIZE. THEY'RE MANDATING /* DATING THE MAXIMUM AMOUNT AVAILABLE 388 00:31:54.889 --> 00:32:00.907 UNDER THE POLICY BUT THAT'S STEP 2. THEY'RE MANDATING U I M COVERAGE 389 00:32:00.907 --> 00:32:06.115 PERIOD WHICH AT THAT TIME WAS OPTIONAL SO WHEN THE INSURED IS A BIG LIS THEY ARE 390 00:32:06.115 --> 00:32:13.466 MANDATING ESSENTIALLY A BLANK COVERAGE SO I THINK THAT SHE IS WHAT THE 391 00:32:13.466 --> 00:32:19.611 LEGISLATURE'S POINT WAS. IF T J MAX SAYS YOU HAVE TO DRIVE OUR CAR 392 00:32:19.611 --> 00:32:24.280 TO DO OUR WORK TO FURTHER OUR BUSINESS THEY NEED TO AT THE SAME TIME AGREE 393 00:32:24.280 --> 00:32:28.365 TO ADEQUATELY PROTECT THE EMPLOYEES THAT ARE DOING THE WORK. 394 00:32:28.365 --> 00:32:31.339 CHIEF JUSTICE RABNER: IS YOUR ARGUMENT IF I UNDERSTAND IT CORRECTLY, THAT THE POLICY'S 395 00:32:31.339 --> 00:32:36.439 LEGAL LIMIT AND IT'S ACTUAL U I M LIMIT MUST BE THE SAME. 396 00:32:36.439 --> 00:32:39.044 MATTHEW G. BONANNO: IN VERY SPECIFIC CIRCUMSTANCES, YES. 397 00:32:39.044 --> 00:32:42.660 CHIEF JUSTICE RABNER: WHERE IS THAT LANGUAGE IN THE STATUTE BECAUSE IT DOESN'T 398 00:32:42.660 --> 00:32:47.480 APPEAR IN A TYPE OF CLEAR WAY TO ME. MATTHEW G. BONANNO: 399 00:32:47.480 --> 00:32:53.849 MAYBE THAT'S KWL THE THIRD CIRCUIT DECIDED THAT THIS LANGUAGE WAS AMBIGUOUS, YOUR 400 00:32:53.849 --> 00:32:58.845 HONOR. TO ME, I MEAN, READING MAXIMUM AMOUNTINGS OF U I M COVERAGE 401 00:32:58.845 --> 00:33:04.696 UNDERSTAND THE LAW, AGAIN IN THE CONTEXT OF UM, U I M THAT IS ACCEPTED LANGUAGE. 402 00:33:04.696 --> 00:33:09.425 I MEAN WHEN YOU'RE APPLYING -- AGAIN, THE BUYER'S GUIDES WILL PROVIDE A 403 00:33:09.425 --> 00:33:12.856 RANGE OF COVERAGE WHICH IS THE AVAILABLE COVERAGE AND THEN SEPARATE AND APART, 404 00:33:12.856 --> 00:33:17.465 AGAIN, THERE IS A DISTINCTION OF WHAT IS CHOSEN OR SELECTED AND WHAT IS 405 00:33:17.465 --> 00:33:20.379 AVAILABLE. JUSTICE WAINER APTER: THE THIRD CIRCUIT FOCUSED 406 00:33:20.379 --> 00:33:24.164 A LOT ON YOUR USE OF THE WORDS BY OPERATION OF LAW. ARE YOU 407 00:33:24.164 --> 00:33:27.663 NO LONGER FOCUSING ON THOSE WORDS? MATTHEW G. BONANNO: NO, I THINK 408 00:33:27.663 --> 00:33:34.731 THAT IS VERY IMPORTANT AND THAT OPERATION OF LAW MEANS IT IS AUTOMATIC, 409 00:33:34.731 --> 00:33:40.593 RIGHT? IT'S IRREGARDLESS OF WHAT THE INSURED'S CHOICE IS. 410 00:33:40.593 --> 00:33:43.469 JUSTICE WAINER APTER: DOESN'T A CLOSE READING OF JAMES JUST 411 00:33:43.469 --> 00:33:50.424 SHOW THAT THE WORDS BY OPERATION OF LAW WERE ONLY -- THE HOLDING IN THAT CASE WAS 412 00:33:50.424 --> 00:33:55.778 SIMPLY THAT ON SEPTEMBER 10TH, 2007, WHICH WAS THE DAY THAT SUBSECTION F 413 00:33:55.778 --> 00:34:04.177 WENT INTO EFFECT, IT, QUOTE, REFORMED ANY EXISTING INSURANCE CONTRACT BY OPERATION 414 00:34:04.177 --> 00:34:10.381 OF LAW, SUCH THAT FOR ANY ACCIDENT OCCURRING ON OR AFTER SEPTEMBER 10TH, 415 00:34:10.381 --> 00:34:16.185 2007 THERE COULD BE NO STEP DOWN FOR AN EMPLOYEE, BUT FOR ANY ACCIDENT OCCURRING 416 00:34:16.185 --> 00:34:22.486 BEFORE SEPTEMBER 10TH, 2007 THERE STILL COULD BE SO A CLOSE READING OF JAMES 417 00:34:22.486 --> 00:34:27.166 SEEMENTS /* SEEMS TO INDICATE THAT THE WORDS BY OPERATION OF LAW SEEMS TO MEAN THAT 418 00:34:27.166 --> 00:34:31.173 ON THE DAY THAT THE AMENDMENT WENT INTO EFFECT ALL INSURANCE CONTRACTS WERE 419 00:34:31.173 --> 00:34:37.049 REFORMED TO HAVE THE SAME AMOUNT OF U I M AND UM FOR THE COMPANY AS IT DID FOR THE 420 00:34:37.049 --> 00:34:44.065 EMPLOYEE. IT DOESN'T SAY ANYTHING ABOUT BY OPERATION OF LAW THE POLICY IS 421 00:34:44.065 --> 00:34:47.591 REFORMED TO THEN REQUIRE THE SAME AS THE LIABILITY LIMITS. MATTHEW 422 00:34:47.591 --> 00:34:55.660 G. BONANNO: AGAIN, IN /* AND JAMES WHILE INSTRUCTIVE, CERTAINLY IS A COMPLETELY 423 00:34:55.660 --> 00:35:00.050 DIFFERENT ISSUE. AGAIN, THIS ISSUE OF MAXIMUM LIABILITY WITH 424 00:35:00.050 --> 00:35:05.993 MINIMAL TO NO U I M JUST WASN'T AN ISSUE BACK THEN THAT JAMES HAD TO DEAL 425 00:35:05.993 --> 00:35:17.941 WITH SO THEY USE THIS SECOND SENTENCE IN COMBINATION WITH THE LOR'S THIS LEGISLATION 426 00:35:17.941 --> 00:35:23.767 IS EFFECTIVE IMMEDIATELY TO GUIDE IT'S DECISION TO SAY OBVIOUSLY NO THIS 427 00:35:23.767 --> 00:35:29.927 ISN'T RETROACTIVE GOING FORWARD ANY OF THESE POLICIES ARE REFORMED BY OPERATION, 428 00:35:29.927 --> 00:35:33.913 ABSOLUTELY, THEY USED THAT TO GUIDE THEIR DECISION BUT I DON'T THINK THEY 429 00:35:33.913 --> 00:35:37.782 LIMITED THAT LANGUAGE. JUSTICE PATTERSON: BUT THAT WAS STEP DOWNS 430 00:35:37.782 --> 00:35:44.298 THAT JAMES WAS REFERRING TO. WE'RE GOING TO REFORM THESE POLICIES BECAUSE 431 00:35:44.298 --> 00:35:50.775 THESE STEP DOUNS HAVE TO GO AS OF THE /* OF THIS DATE AND THAT WAS THE LEGISLATIVE 432 00:35:50.775 --> 00:35:55.618 INTENT. DID JAMES GET IT RIGHT AS TO THE LEGISLATIVE INTENT. 433 00:35:55.618 --> 00:35:57.760 MATTHEW G. BONANNO: IN THE CONTEXT THERE THAT IT WAS NOT 434 00:35:57.760 --> 00:36:03.043 RETROACTIVE I THINK THEY GOT IT ONE HUNDRED PERCENT RIGHT THAT IT WAS NOT A RETRO 435 00:36:03.043 --> 00:36:06.506 ACTIVE LEGISLATION. JUSTICE PATTERSON: WHEN THIS COURT STATED 436 00:36:06.506 --> 00:36:12.272 WHAT IT CONSIDERED TO BE THE LEGISLATIVE INTENT OF SUBSECTION F WAS IT CORRECT? 437 00:36:12.272 --> 00:36:15.275 MATTHEW G. BONANNO: AS IT APPLIED TO THE CIRCUMSTANCES IN 438 00:36:15.275 --> 00:36:19.129 JAMES /* JAMES, YES, BUT I THINK IT GOES I DON'T UNDERSTAND THAT. 439 00:36:19.129 --> 00:36:22.628 JUSTICE HOFFMAN: STICKING WITH LEGISLATIVE INTENT YOU HAD A CONVERSATION WITH JUSTICE 440 00:36:22.628 --> 00:36:27.002 WAINER APTER ABOUT THE COMMITTEE'S STATEMENT IN '07 AND THAT STATEMENT IS 441 00:36:27.002 --> 00:36:33.044 PROVIDE MAXIMUM U /* UM U I M COVERAGE UNDERSTAND THAT POLICY. 442 00:36:33.044 --> 00:36:36.306 WHAT IS YOUR UNDERSTANDING OF THE MEANING AND PURPOSE OF THE WORD PARTICULAR IN 443 00:36:36.306 --> 00:36:39.396 THAT SENTENCE? MATTHEW G. BONANNO: WITHOUT THAT LANGUAGE, 444 00:36:39.396 --> 00:36:43.402 WITHOUT THE PARTICULAR POLICY LANGUAGE MAXIMUM AVAILABLE COVERAGE HAS NO MEANING, 445 00:36:43.402 --> 00:36:48.632 HAS NO INDEPENDENT MEANING, THE MAXIMUM AVAILABLE COVERAGE WILL ALWAYS BE DETERMINED 446 00:36:48.632 --> 00:36:54.070 BASED UPON THE PARTICULAR POLICY AND THE LIABILITY WHEN IT IS SELECTED FOR 447 00:36:54.070 --> 00:36:57.112 THAT PARTICULAR POLICY. JUSTICE HOFFMAN: THE WAY I READ YOUR 448 00:36:57.112 --> 00:37:00.868 INTERPRETATION IS THAT THE WORD PARTICULAR HAS NO MEANING IN THIS SENTENCE. 449 00:37:00.868 --> 00:37:04.054 MATTHEW G. BONANNO: IT ABSOLUTELY DOES. IT IS GUIDED BY EACH PARTICULAR 450 00:37:04.054 --> 00:37:07.369 POLICY. JUSTICE PATTERSON: SO IT REALLY MEANS THAT PARTICULAR 451 00:37:07.369 --> 00:37:11.855 POLICY GO TO THE LIABILITY LIMITS AND THAT'S THE NUMBER? MATTHEW 452 00:37:11.855 --> 00:37:14.846 G. BONANNO: YES. JUSTICE PATTERSON: WHY DIDN'T THEY SAY THAT? 453 00:37:14.846 --> 00:37:19.813 THEY COULD HAVE SAID SOMETHING IN B. THEY COULD HAVE SAID 454 00:37:19.813 --> 00:37:25.635 SOMETHING IN F. THEY COULD HAVE CHANGED THAT LANGUAGE TO GEAR IT TO LIABILITY. 455 00:37:25.635 --> 00:37:31.366 IT IS NOT HARD. THE LEGISLATURE IS VERY SPECIFIC IN THESE STATUTES. 456 00:37:31.366 --> 00:37:34.055 MATTHEW G. BONANNO: I THINK THEY WERE SPECIFIC WHEN THEY SAID MAXIMUM AVAILABLE. 457 00:37:34.055 --> 00:37:39.019 AGAIN IT IS GOES BACK TO WHAT THAT MEANS IN THE CONTEXT OF UM AND U I M 458 00:37:39.019 --> 00:37:42.729 COVERAGE AND THERE IS A VERY, VERY CLEAR DISTINCTION BETWEEN AVAILABLE COVERAGE 459 00:37:42.729 --> 00:37:48.493 AND CHOSEN OR SLEKTDZ COVERAGE WHEN IT COMES TO UM, U I M FOR ALL INSUREDS. 460 00:37:48.493 --> 00:37:53.010 THERE IS A RANGE OF AVAILABLE COVERAGE FOR UM AND U I M AND THAT IS AVAILABLE UP 461 00:37:53.010 --> 00:37:59.353 TO THE MAXIMUM WHICH GENERALLY IS THE LIABILITY LIMITS; THAT'S THE AVAILABLE 462 00:37:59.353 --> 00:38:04.255 COVERAGE. THE SELECTED CHOSEN COVERAGE IN THE POLICY IS A COMPLETELY DIFFERENT 463 00:38:04.255 --> 00:38:06.931 ELEMENT. CHIEF JUSTICE RABNER: WE'RE BEYOND THE 30 MINUTES 464 00:38:06.931 --> 00:38:11.571 ANY QUESTIONS ANYONE? ANYTHING YOU WOULD LIKE TO ADD THIS POINT? 465 00:38:11.571 --> 00:38:13.151 MATTHEW G. BONANNO: NO, THANK YOU. CHIEF JUSTICE 466 00:38:13.151 --> 00:38:28.423 RABNER: WE WILL HAVE YOU BACK FOR REBUTTAL, MR. BOVE LOUIS 467 00:38:28.423 --> 00:38:30.204 A. BOVÉ: GOOD MORNING IT IS A PLEASURE TO BE HERE TODAY BEFORE YOU. I HAVE A BRIEF 468 00:38:30.204 --> 00:38:35.152 OPENING STATEMENT THAT I JUST LIKE TO MAKE AND THEN I HAPPY TO PROCEED WITH 469 00:38:35.152 --> 00:38:44.550 MY ARGUMENT OR ANSWER ANY QUESTIONS. MY VIEW OF THIS THE CASE LAW VIEW OF IT IS 470 00:38:44.550 --> 00:38:51.076 THAT N.J.S.A. 17:28-1.1(F) WAS ENACTED TO PROHIBIT THE USE AN ENFORCEMENT 471 00:38:51.076 --> 00:38:57.913 OF STEP-DOWN PROVISIONS IN COMMERCIAL AUTO POLICIES AN TO ENSURE THAT UM UIM PROFRJ 472 00:38:57.913 --> 00:39:03.056 AVAILABLE TO AN EMPLOYEE IS NO LESS THAN THE YES, I AM UIM COVERAGE AVAILABLE 473 00:39:03.056 --> 00:39:11.157 TO THE EMPLOYER AND ITS PRINCIPLES UNDER THE POLICY. THE LEGISLATOR DOES NOT MANDATE 474 00:39:11.157 --> 00:39:16.558 THE ASK YOUR TERRY AMENDMENT THAT WE'RE HERE ABOUT DOESN'T MANDATE THE 475 00:39:16.558 --> 00:39:21.499 COMMERCIAL AUTO POLICIES ISSUED IN THIS STATE OR ANY OTHER STATE THAT COVER GARAGE 476 00:39:21.499 --> 00:39:27.437 VEHICLES HERE AFFORD MATCHING THIRD PARTY LIABILITY AND FIRST PARTY UM UIM 477 00:39:27.437 --> 00:39:32.229 LIMIT TO EMPLOYEES OF A CORPORATION OR A BUSINESS ENTITY. IT JUST SIMPLY DOESN'T 478 00:39:32.229 --> 00:39:37.840 SAY THAT. THERE'S NOTHING IN THE PLAIN TEXT OF THE ASK YOU TERRY AMENDMENT 479 00:39:37.840 --> 00:39:44.741 THE LEGISLATIVE HISTORY TO SUPPORT MR. CHIACCHERI'S READING OF THE STATUTE. 480 00:39:44.741 --> 00:39:50.812 IF THE LEGISLATOR SOUGHT TO MANDATE THAT KIND OF SWEEPING REFORM OR CONSEQUENTIAL 481 00:39:50.812 --> 00:39:55.910 REQUIREMENT MATCHING UM UIM THIRD PARTY LIGHTEN LIMIT IT WOULD HAVE SAID 482 00:39:55.910 --> 00:40:01.514 SO AND IT WOULD HAVE SAID SO PLAINLY BUT IT DIDN'T. WE AND THIS COURT TO RESPOND 483 00:40:01.514 --> 00:40:05.838 TO THE TWO CERTIFIED QUESTIONS FROM THE THIRD CIRCUIT, FIRST WITH RESPECT 484 00:40:05.838 --> 00:40:10.019 TO A MOTOR VEHICLE LIABILITY POLICY THAT NAMES A CORPORATE OR BUSINESS ENTITY AS 485 00:40:10.019 --> 00:40:18.094 A NAMED INSURED THE MAXIMUM UNDERINSURED MOTORIST AVAILABLE UNDER THE POLICY 486 00:40:18.094 --> 00:40:21.428 THAT MUST BE PROVIDE TO AN INDIVIDUAL EMPLOYED BY THE CORPORATE OR BUSINESS EPTY 487 00:40:21.428 --> 00:40:27.668 IS THE POLICY LIMIT FOR THE UNDERINSURED MOTORIST COVERAGE STATED IN POLICY THAT 488 00:40:27.668 --> 00:40:32.501 IS APPLICABLE TO THE NAME INSURED. SECONDS WE ASK THIS COURT TO RESPOND 489 00:40:32.501 --> 00:40:40.129 TO THE THIRD CIRCUIT THAT AND SAY THAT ENDORSEMENT LIMITING UIM COVERAGE TO AMOUNT 490 00:40:40.129 --> 00:40:45.400 LESS THAN THE THIRD PARTY LIABILITY LIMIT UNDER THE SAME POLICY ARE NOT 491 00:40:45.400 --> 00:40:59.466 IN VIOLATION OF 1728-1F OR CONTRARY TO PUBLIC POLICY. TO BEGIN, THE AMENDMENT 492 00:40:59.466 --> 00:41:08.564 18 YEARS NOW SINCE IT WAS PASSED DOESN'T -- WAS DESIGNED TO ADDRESS THE PINTO 493 00:41:08.564 --> 00:41:12.321 DECISION AND STEP-DOWN PROVISIONS IN POLICIES AS APPLICABLE TO EMPLOYEES. 494 00:41:12.321 --> 00:41:19.665 NOTHING MORE. THERE'S TWO SENTENCES IN IT. THE FIRST SENTENCE SAYS LOOK, NO 495 00:41:19.665 --> 00:41:26.403 POLICY ISSUED IN IN STATE OR RENEWAL OF A POLICY SHALL HAVE DIFFERENT LIMITS 496 00:41:26.403 --> 00:41:31.697 FOR ONE CLASS OF INSUREDS AND ANOTHER CLASS OF INSUREDS. IN THIS STANCE NAMED 497 00:41:31.697 --> 00:41:41.438 INSUREDS AND EMPLOYEES. IT BARRED THAT PRACTICE IN POLICIES ISSUED OR 498 00:41:41.438 --> 00:41:46.321 RENEWALS ON OR OF AFTER THE EFFECTIVE DATE. THE SECOND STEPS THAT SEEMS TO BE THE 499 00:41:46.321 --> 00:41:52.518 FOCUS OF MR. CHIACCHERI'S ARGUMENT ADDRESSES THE DEEMER AND IT APPRISE TO 500 00:41:52.518 --> 00:41:58.182 EXISTING POLICIES. THIS IS WHAT THIS COURT WRESTLED WITH IN JAMES AND THE APPELLATE 501 00:41:58.182 --> 00:42:04.053 DIVISION FOR EXAMPLE, IN HAND, BASICALLY THAT SECOND PROVISION DEEMS A POLICY 502 00:42:04.053 --> 00:42:10.632 TO PROVIDE THE UM UIM LIMIT DECLARED UNDER THE POLICY TO EMPLOYEES REGARDLESS OF 503 00:42:10.632 --> 00:42:15.870 WHETHER THEY HAVE OTHER INSURANCE POLICIES OR HOW THEY'RE CHARACTERIZED IN THE 504 00:42:15.870 --> 00:42:20.128 POLICY FOR EXAMPLE, AS A SCHEDULED ADDITIONAL INSURED OR NAMED INSURED. A. 505 00:42:20.128 --> 00:42:28.253 TOGETHER, THESE THE STATUTE THE AMENDMENT ADDRESSES NEW POLICIES OR RENEWALS OF 506 00:42:28.253 --> 00:42:33.260 THEM AS OF THE EFFECTIVE DATE BARRING THIS KIND OF DIFFERENT TREATMENT BETWEEN 507 00:42:33.260 --> 00:42:41.270 THE EMPLOYER ITS PRINCIPLES AND AN EMPLOYEE IN TERMS OF UM UIM BENEFITS AND THEN 508 00:42:41.270 --> 00:42:47.328 THE DEEMER PROVISION CORRECTED THE EXISTING POLICIES THAT WERE ADDRESSED AS I 509 00:42:47.328 --> 00:42:53.783 MENTIONED WELL IN PINTO IN HAND IN JAMES. EXISTING POLICIES AND CORRECTED 510 00:42:53.783 --> 00:43:01.480 THOSE SUA SPONTE AS A MATTER OF LAW AS A MATTER OF. JUSTICE 511 00:43:01.480 --> 00:43:06.982 PATTERSON: HAVE YOU COMPLETED YOUR OPENING STATEMENT BOVÉ SURE. 512 00:43:06.982 --> 00:43:09.331 LOUIS A. BOVÉ: SURE. I HAVE MORE. JUSTICE PATTERSON: THAT'S AN 513 00:43:09.331 --> 00:43:13.174 AMBIGUOUS. CHIEF JUSTICE RABNER: FINISH YOUR OPENING 514 00:43:13.174 --> 00:43:19.235 STATEMENT. LOUIS A. BOVÉ: I THINK TO GET TO THE CRUX OF IT 515 00:43:19.235 --> 00:43:25.790 WHAT THIS -- WHAT'S BEING ASKED HERE IS FOR THIS COURT TO REFORM EVERY COMMERCIAL 516 00:43:25.790 --> 00:43:31.178 AUTO POLICY ISSUED IN THIS STATE AS WELL AS THOSE ISSUED OUT OF STATE. LET'S 517 00:43:31.178 --> 00:43:38.492 NOT FORGET THE TJ MAXIMUM OR TJX'S POLICY WHICH BY THE WAY COVERS HUNDREDS 518 00:43:38.492 --> 00:43:45.375 OF NAMED INSUREDS THROUGHOUT THE GLOBE WAS ISSUED IN MASS CHOOSE HE, ETC. PEW THE 519 00:43:45.375 --> 00:43:49.792 DEEM ARE PROVISION IN THE NEW JERSEY STATE WOULD CONFORM TO NUMBER LAW. 520 00:43:49.792 --> 00:43:56.044 SO WHAT HE'S ASKING YOU TO TO DO IS REFORM EVERY POLICY IN THE STATE AS WELL AS 521 00:43:56.044 --> 00:44:01.981 OUT OF STATE FOR THE PASSED 18 YEARS FOR THE PAST 18 YEARS TO PROVIDE MATCHING 522 00:44:01.981 --> 00:44:08.480 FIRST PARTY UM/UIM LIMITS AND THIRD PARTY LIABILITY LIMITS THAT WASN'T SANCTIONED 523 00:44:08.480 --> 00:44:13.952 BY THE LEGISLATOR IT'S NEVER BEEN ADOPTED BY ANY COURT HASN'T BEEN REFERENCED 524 00:44:13.952 --> 00:44:19.102 BY ANY COURT AND ISN'T REMOTELY CONTEMPLATED BY THE AMENDMENT THAT WAS PASSED 525 00:44:19.102 --> 00:44:24.946 BACK IN 2007. I RESPECTFULLY SUBMIT THIS COURT SHOULD DECLINE THAT INVITATION 526 00:44:24.946 --> 00:44:31.645 TO REFORM POLICIES FOR THE PAST 18 YEARS FOR ANY NUMBER OF A VARIETY OF REASONS. 527 00:44:31.645 --> 00:44:34.101 CHIEF JUSTICE RABNER: MR. MATTHEW G. BONANNO: 528 00:44:34.101 --> 00:44:39.403 SUGGESTED THAT YOUR POLICY IS UNIQUE IS THAT CAN YOU RESPONDS. 529 00:44:39.403 --> 00:44:43.875 LOUIS A. BOVÉ: IT'S UTTER NON SEASONS I'VE BEEN DOING THIS FOR 40 YEARS ALL OVER 530 00:44:43.875 --> 00:44:48.706 THE COUNTRY. I'VE LITIGATED THESE FLEET POLICIES NUMEROUS TIMES. JUST ACROSS 531 00:44:48.706 --> 00:44:53.278 THE RIVER I'VE DONE IT AT LEAST TWICE ON THE SELECTION FORM THAT'S AT ISSUE IN THIS 532 00:44:53.278 --> 00:44:58.305 CASE. I'VE DONE IT FOR AMAZON I'VE DONE IT FOR ENTERPRISE LEASING. THESE 533 00:44:58.305 --> 00:45:04.572 FOLKS. THESE BUSINESSES HAVE THOUSANDS OF AUTS THAT ARE OWNED OR OTHERWISE SUBJECT 534 00:45:04.572 --> 00:45:09.803 TO COMPULSORY FINANCIAL RESPONSIBILITY LAWS THAT DIFFER IN EVERY STATE. 535 00:45:09.803 --> 00:45:12.992 CHIEF JUSTICE RABNER: I THINK HIS POINT IT IS UNIQUE. 536 00:45:12.992 --> 00:45:16.503 LOUIS A. BOVÉ: THERE'S NOTHING UNIQUE ABOUT THIS POLICY. 537 00:45:16.503 --> 00:45:20.288 CHIEF JUSTICE RABNER: THE SDURG POLICIES. LOUIS A. BOVÉ: THE ZURICH 538 00:45:20.288 --> 00:45:27.845 POLICIES OF COURSE ISSUED IN THE SECOND CASE ISSUED IN NEW JERSEY THEIR 539 00:45:27.845 --> 00:45:36.329 PAPER IS REGULATED THEY USE A 2114 FORM. IT'S THE NUMBER UM/UIM COVERAGE. EVERY 540 00:45:36.329 --> 00:45:45.613 CARRIER, EVERY CARRIER ADMITTED CARRIER USES THE SAME NEW JERSEY UM UIM FORM. 541 00:45:45.613 --> 00:45:49.981 THERE'S ONE IN EXISTENCE WHEN PINTO WAS DECIDED AND THEN IT WAS AMENDED 542 00:45:49.981 --> 00:45:58.122 AFTER THE AMENDMENT TO ELIMINATE EMPLOYEES FROM THE SCOPE OF THE STEP DOWN POLICIES AND 543 00:45:58.122 --> 00:46:01.483 PROCEDURESES. THESE ARE FORMS THAT THE REGULATED AND APPROVED. THEY'RE 544 00:46:01.483 --> 00:46:09.091 STILL IN USE TODAY. JUSTICE PATTERSON: PEEKING OF DOUGH BEE BOVÉ 545 00:46:09.091 --> 00:46:17.727 WHY WOCHLT DOBE ISSUE AN ENTIRE SECTION TO DEVOTED TO THE POLICY'S HOLDER IN THIS CASE 546 00:46:17.727 --> 00:46:28.680 A COMMERCIAL ENTITIES RIGHT TO E-ELECTRICITY UM UIM BENEFITS IF THE 547 00:46:28.680 --> 00:46:33.315 ASK YOU INTERAMENDMENT MADE THAT CHOICE IRLT. JUSTICE PATTERSON: 548 00:46:33.315 --> 00:46:37.785 WHAT DO YOU SAY THE LANGUAGE MEANS IN THE BUYERS GUYS BHOEF THAT TRACTOR TRAILER 549 00:46:37.785 --> 00:46:42.685 POLICYHOLDER HAS THE RIGHT TO SELECT FIRST OF ALL THAT THE POLICYHOLDER HAS THE 550 00:46:42.685 --> 00:46:49.740 RIGHT TO SELECT UM/UIM COVERAGE CONSISTENT WITH ITS EVALUATION OF ITS RIFKS. 551 00:46:49.740 --> 00:46:56.548 ITS NEEDS AND ITS BUDGET UNDER NEW JERSEY LAW. NOTHING IN THE BUYERS GUIDE 552 00:46:56.548 --> 00:47:00.637 -- THEY WOULDN'T HAVE THAT RIGHT OF SELECTION IN THE BUYERS GUIDE FOLLOWING THE 553 00:47:00.637 --> 00:47:06.201 AMENDMENT IF WHAT MY LEARN HE HAD ADVERSE SAID WAS CORRECT THEY WOULD HAVE 554 00:47:06.201 --> 00:47:11.182 DONE AWAY WITH THAT SECTION BECAUSE YOU DON'T HAVE A CHOICE. IT'S AUTOMATIC 555 00:47:11.182 --> 00:47:15.162 ACCORDING TO MR. CHIACCHERI. JUSTICE HOFFMAN: IF PINTO HAD GOTTEN 556 00:47:15.162 --> 00:47:20.447 IN HIS ACCIDENT UNDER THIS POLICY PINTO WOULD HAVE GOTTEN 15 THOUSAND DOLLARS 557 00:47:20.447 --> 00:47:26.620 ACCORDING TO YOUR THEORY AND NOT A HUNDRED THOUSAND DOLLARS RIGHT. 558 00:47:26.620 --> 00:47:31.464 LOUIS A. BOVÉ: KNOW IF PINTO WAS INJURED UNDER THIS POLICY THE STEP-DOWN PROVISION 559 00:47:31.464 --> 00:47:37.633 IN THIS POLICY CONFORMS TO THE CURRENT DODI. JUSTICE HOFFMAN: 560 00:47:37.633 --> 00:47:44.607 INJURED PINTO HAD BEEN INJURED UNDER THIS POLICY PINTO WOULD HAVE RECEIVED 561 00:47:44.607 --> 00:47:47.967 ATHOUSAND DOLLARS AND NOT THE HUNDRED THOUSAND DOLLARS THAT WAS AVAILABLE WHEN HE 562 00:47:47.967 --> 00:47:52.852 WAS INJURED ISN'T THAT RIGHT. LOUIS A. BOVÉ: NO, THIS POLICY PROVIDES 563 00:47:52.852 --> 00:47:58.936 FOR NEW JERSEY GARAGE AUTO VEHICLES 1530. MR. PINTO IF HE WAS INJURED WHEN 564 00:47:58.936 --> 00:48:04.265 THIS POLICY AND THIS POLICY WAS IN EFFECT WOULD HAVE GOTTEN 15/30 BECAUSE THAT'S 565 00:48:04.265 --> 00:48:08.350 THE DECLARED LIMIT AND IT'S THE SAME LIMIT AVAILABLE IN IN STATE FOR GARAGE 566 00:48:08.350 --> 00:48:11.449 VEHICLES IN THE STATE. JUSTICE HOFFMAN: AND PINTO WAS INJURED 567 00:48:11.449 --> 00:48:15.673 BEFORE THE AMENDMENT HE GOT A HUNDRED THOUSAND RIGHT BECAUSE THAT'S HOW MUCH HE 568 00:48:15.673 --> 00:48:20.031 HAD UNDER HIS OWN PERSONAL UM UIM. LOUIS A. BOVÉ: OH, YES 569 00:48:20.031 --> 00:48:23.136 YES YES CORRECT. HE WOULD GET A HUNDRED. JUSTICE WAINER APTER: 570 00:48:23.136 --> 00:48:25.863 HE GOT ZERO FROM THE COMPANY. LOUIS A. BOVÉ: I'M SORRY. 571 00:48:25.863 --> 00:48:30.758 JUSTICE HOFFMAN: IF PINTO WOULD HAVE GOTTEN 15 UNDER THIS 572 00:48:30.758 --> 00:48:34.608 WHEREAS PRIOR TO THE AMENDMENT HE GOT A HUNDRED THOUSAND, RIGHT. 573 00:48:34.608 --> 00:48:38.358 LOUIS A. BOVÉ: HE WOULD STILL GET A HUNDRED THOUSAND IF HE ELECTED THAT UNDER HIS 574 00:48:38.358 --> 00:48:42.061 POLICY. THE ZURICH POLICY IN CHIACCHERI OR TRAVIESO HAS NOTHING TO DO WITH 575 00:48:42.061 --> 00:48:45.729 HIS. JUSTICE HOFFMAN: WUR TAKE BEING ABOUT THE POLICY AVAILABLE 576 00:48:45.729 --> 00:48:50.596 BY THE COMPANY. THE COMPANY WOULD HAVE PROVIDED ATHOUSAND RIGHT TO PINTO. 577 00:48:50.596 --> 00:48:53.204 LOUIS A. BOVÉ: YES. JUSTICE HOFFMAN: BUT DO YOU THINK 578 00:48:53.204 --> 00:48:57.235 THAT'S THE INTENT OF THE 07 AMENDMENT TO ENDS UP WITH SOMEONE LIKE PINTO 579 00:48:57.235 --> 00:49:02.776 TODAY HAVING GOTTEN LESS THAN HE WORE WISE WOULD HAVE GOTTEN POSE HE WOULDN'T HAVE 580 00:49:02.776 --> 00:49:07.586 GOTTEN LESS. HE WOULD HAVE GOTTEN THE LIMITS AVAILABLE UNDER THE ZURICH 581 00:49:07.586 --> 00:49:10.342 POLICY. JUSTICE WAINER APTER: HOW DOES IT WORK SUMMERTIME 582 00:49:10.342 --> 00:49:16.630 OF IF THERE'S A CORPORATE AMOUNT ATHOUSAND AND THE PERSON PINTO GOT AND HE HAD 583 00:49:16.630 --> 00:49:20.587 A HUNDRED THOUSAND IN HIS OWN POLICY. LET'S SAY TODAY THE SAME THING 584 00:49:20.587 --> 00:49:24.513 HAPPENED 15 THOUSAND FROM THE CORPORATION A HUNDRED THOUSAND IN HIS OWN POLICY 585 00:49:24.513 --> 00:49:28.773 TOSS THE PERSON GET 115 THOUSAND DOES THE PERSON GET A HUNDRED THOUSAND DOES THE 586 00:49:28.773 --> 00:49:35.394 PERSON ONLY GET HOW DOES IT WORK BHOEF HE GETS 15 THOUSAND. WHEN HE SELECTED 587 00:49:35.394 --> 00:49:41.058 A HUNDRED THOUSAND UNDER A PERSONAL LINES POLICY LIKE ANY OF US MIGHT HAVE. 588 00:49:41.058 --> 00:49:42.880 JUSTICE WAINER APTER: SO HE WOULDN'T GET ANYTHING FROM THE COMPANY THE 589 00:49:42.880 --> 00:49:47.253 15 THOUSAND FROM THE COMPANY. LOUIS A. BOVÉ: THERE'S ANTI 590 00:49:47.253 --> 00:49:50.898 STACKING LAW. AGAIN I DIDN'T WRITE THE LAW BUT ACROSS THE RIVER IN 591 00:49:50.898 --> 00:49:54.941 PENNSYLVANIA YOU STACK UIM BENEFITS. IN NEW JERSEY YOU DON'T. IT'S PART OF THE 592 00:49:54.941 --> 00:50:00.184 COST CONTAINMENT FEATURES BACK IN 1984. SO HE WOULDN'T GET THE HUNDRED PLUS THE 593 00:50:00.184 --> 00:50:05.487 15 UNDER THE ZURICH POLICY. HE WOULD JUST GET THE HUNDRED THAT HE ELECTED. 594 00:50:05.487 --> 00:50:10.647 OF COURSE HE HAD THE RIGHT TO TO SO SO THE NOTION THAT ZURICH IS SOMEHOW STRIPPING 595 00:50:10.647 --> 00:50:14.696 MR. CHIACCHERI OF HIS RIGHT TO SELECT COVERAGE THAT FOLLOWS THE PERSON. 596 00:50:14.696 --> 00:50:20.281 UM AND UIM. JUSTICE PATTERSON: BECAUSE WHAT SUBSECTION F 597 00:50:20.281 --> 00:50:26.834 DID TO THE WITH RESPECT TO THE PINTO WAS NOT ALLOW WHAT I UNDERSTOOD HAPPENED IN 598 00:50:26.834 --> 00:50:33.767 PINTO WHICH IS A MILLION DOLLARS FOR THE NAMED INSUREDS AND 15 THOUSAND DOLLARS 599 00:50:33.767 --> 00:50:40.780 FOR PINTO BUT HIS THE HUNDRED THAT FOLLOWED HIM BECAUSE HE HAD A POLICY. 600 00:50:40.780 --> 00:50:47.516 LOUIS A. BOVÉ: HE STILL GOT IT I'M SORRY. JUSTICE 601 00:50:47.516 --> 00:50:52.490 NORIEGA: PLEASE ANSWER. LOUIS A. BOVÉ: FIRST YOU HAVE TO HAVE A 602 00:50:52.490 --> 00:50:57.040 COVERED VEHICLE. SO ALL OF THESE COMMERCIAL POLICIES HAVE SYMBOLS, ONE 603 00:50:57.040 --> 00:51:03.373 TWO, THREE THEY BEGIN WITH 21 BECAUSE IT'S AN AUTO DEALER COVERAGE FORM MUCH BUT 604 00:51:03.373 --> 00:51:08.961 ANY AUTO, OWNED AUTOMATIC OWES, AUTOMATIC OWES SUBJECT TO FINANCIAL 605 00:51:08.961 --> 00:51:13.712 RESPONSIBILITY LAWS, ETC. THE INSURED PICKS WHAT AUTOMATIC OWES THEY WANT TO COVER 606 00:51:13.712 --> 00:51:17.940 UNDER THEIR POLICY THEN THEY THERE HAS TO BE AN ACCIDENT. THEN THERE HAS 607 00:51:17.940 --> 00:51:23.064 TO BE AN ACCIDENT WITH AN UNINSURED OR UNDER INSURED MOTORIST AND THEN FOR THE 608 00:51:23.064 --> 00:51:28.485 STEP-DOWN PROVISION TO WORK IN ITS CLASSIC FORM THEY HAVE TO HAVE LESS LIMITS 609 00:51:28.485 --> 00:51:34.464 ON THEIR PERSONAL LINES POLICY THAN THAT WHICH IS PROVIDED UNDER THE COMMERCIAL 610 00:51:34.464 --> 00:51:39.307 POLICY. WHAT PINTO. JUSTICE PATTERSON: A MILLION DOLLARS IN PINTO 611 00:51:39.307 --> 00:51:44.345 I THINK THE NUMBER WAS A MILL, 1 HUNDRED THOUSAND. LOUIS A. BOVÉ: 612 00:51:44.345 --> 00:51:53.505 TO WHAT HE SELECTED AND INTRODUCED AND PASSED THE LAW SAYING NO MORE. IN NEW 613 00:51:53.505 --> 00:51:59.497 JERSEY. ALL POLICIES THE FIRST SENTENCE OF THE AMENDMENT ALL POLICIES ISSUED 614 00:51:59.497 --> 00:52:07.413 OR RENEWED AFTER THE EFFECTIVE DATE CAN'T HAVE SAY DIS PART BETWEEN THE UIM 615 00:52:07.413 --> 00:52:10.858 COVERAGE AVAILABLE TO AN EMPLOYEE OR ONE OF THE OWNERS OR PRINCIPLES OF COMPANY 616 00:52:10.858 --> 00:52:17.200 AND YOU DEEM EXISTING POLICIES TO PROVIDE THAT SAME RELIEF THAT SAME RESULT. 617 00:52:17.200 --> 00:52:20.164 JUSTICE PATTERSON: SO WHAT YOU DESCRIBED AS THE STEP DOWNS NO LONGER 618 00:52:20.164 --> 00:52:26.095 EXIST UNDER SUBSECTION F THAT DIS PART IS GONE. LOUIS A. BOVÉ: 619 00:52:26.095 --> 00:52:32.890 AND NOW THE I SIDE VIEW MIRROR OCA2014 COVERAGE FORM WE USE THESE TERMS IN MY 620 00:52:32.890 --> 00:52:38.759 INDUSTRY. 2114 BUT THE NEW JERSEY UM/UIM COVERAGE FORM GETS APPROVED BY 621 00:52:38.759 --> 00:52:43.696 THE DEPARTMENT OF BANKING OF INSURANCE POLICIES, STILL HAS THE STEP-DOWN PROVISIONS 622 00:52:43.696 --> 00:52:49.689 AND THEN IT HAS A PROVISION SAYING THESE PROVISIONS DO NOT IMPLY TO EMPLOYEES 623 00:52:49.689 --> 00:52:56.400 PERIOD. IT WAS THAT SIMPLE AND ISO CHANGED IT AS OF 2007 OR MAYBE A LITTLE BIT 624 00:52:56.400 --> 00:53:00.927 AFTER AND EVERY INSURER USES IT. JUSTICE WAINER APTER: HOW 625 00:53:00.927 --> 00:53:07.961 DO YOU RESPOND TO YOUR ADVERSE'S ARGUMENT THAT THERE IS NO USE FOR UM OR UIM 626 00:53:07.961 --> 00:53:15.231 INSURANCE FOR A CORPORATION. LOUIS A. BOVÉ: WELL, THERE IS. THAT 627 00:53:15.231 --> 00:53:20.463 ARGUMENT DIDN'T MAKE SENSE WHEN I HEARD IT. SO THE TJ MAX POLICY FOR EXAMPLE. 628 00:53:20.463 --> 00:53:28.460 THERE'S WELL OVER A HUNDRED 50 NAMED INSUREDS UNDER THAT POLICY. TJ MAX OPERATES 629 00:53:28.460 --> 00:53:33.687 ALL OVER THE WORLD. YOU CAN LOOK AT THEIR SEC STATEMENT AND LOOK AT ALL 630 00:53:33.687 --> 00:53:39.307 THE INSUREDS. AND THERE'S A BROAD NAMED INSURED ENDORSEMENT LIKE I YOU SEE IN 631 00:53:39.307 --> 00:53:46.087 ALL FLEET POLICIES. IT CAPTURES ALL COMPANIES AFFILIATES. ALL EVER THOSE 632 00:53:46.087 --> 00:53:51.379 HAVE VEHICLES. SOME OF THEM ARE LOIKS. FOR EXAMPLE, IF MANY OF THEM ARE LLCS 633 00:53:51.379 --> 00:53:59.953 SO THE MEMBERS OF AN LLC AREN'T EMPLOYEES. SO THESE ARE VERY SIGNIFICANT 634 00:53:59.953 --> 00:54:03.570 POLICIES AND THEY'RE VERY IMPORTANT. JUSTICE PATTERSON: JUST ONTO 635 00:54:03.570 --> 00:54:09.430 BE CLEAR MROEF TO. JUSTICE PATTERSON: IF THERE'S AN LLC ON 636 00:54:09.430 --> 00:54:14.919 THAT ENDORSEMENT AND ITS MEMBERS ARE DRIVING AROUND IN LLC OWNED VEHICLES 637 00:54:14.919 --> 00:54:23.298 THEY ARE INDIVIDUAL NAMED INSUREDS SO THAT IF THEY IN AN ACCIDENT THEY THEIR COVERAGE 638 00:54:23.298 --> 00:54:31.553 IS WHAT IS INCLUDED IN THE PRETRIAL AND IT CAN'T BE A DIS PART WHERE THEY 639 00:54:31.553 --> 00:54:35.896 GET A MILLION. LOUIS A. BOVÉ: UNDER WHAT MR. CHIACCHERI IS 640 00:54:35.896 --> 00:54:40.398 PROPOSING A MEMBER OF THE LLC WHO IS NOT AN EMPLOYEE WOULD GET THE DECLARED LIMIT 641 00:54:40.398 --> 00:54:48.998 IN THIS INSTANCE AND MR. CHIACCHERI WHO DIDN'T EVEN BUY THE POLICY WOULD GET 2 642 00:54:48.998 --> 00:54:56.478 MILLION IN UM/UIM LIMITS. IT'S AN ABSURD RESULT. I CAN'T SO TO SPEAK TO IT. 643 00:54:56.478 --> 00:55:05.124 I CAN TELL YOU THAT TO SAY THAT TJ MAX IS MORE IMPORTANT IN ITS ASSETS IS NONSENSE. 644 00:55:05.124 --> 00:55:10.051 TJ MAX IS HAS MORE IN LIABILITY COVERAGE THAT EXTENDS TO THEIR EMPLOYEES 645 00:55:10.051 --> 00:55:15.405 WHEN THEY'RE OUT DRIVING VEHICLES AND HARMED SOMEONE SO THAT THEIR ASSETS AREN'T 646 00:55:15.405 --> 00:55:20.247 AT RISK AS WELL. THEY'RE THE ACTIVE TORT FEES OR IN AN ACCIDENT. THERE'S 647 00:55:20.247 --> 00:55:28.067 A FUNDAMENTAL DIFFERENT FORENSIC THIRD AND FIRST PARTY UM UIM COVERAGE. IN IT 648 00:55:28.067 --> 00:55:32.274 DIFFERENCE FROM STATE TO STATE IT'S A SAFETY NET. THE REASON YOU HAVE THESE 649 00:55:32.274 --> 00:55:39.307 MANDATORY MINUTE MUMS IN NEW JERSEY AND NO STACKING IS BECAUSE THE LEGISLATOR 650 00:55:39.307 --> 00:55:45.402 WANTS TO MAKE SURE THAT ANY ONE INJURED IN AN AUTO EXTENT IS COVERED BY THE MINIMUM 651 00:55:45.402 --> 00:55:51.021 REQUIRED OF THE TORTFEASOR IF THE TORTFEASOR IS UNINSURED FOR WHATEVER 652 00:55:51.021 --> 00:55:57.731 REASON THEY GET UM BEEN FITS EQUAL TO THAT SAME AMOUNT OR IF THEY'RE UNDER INSURED 653 00:55:57.731 --> 00:56:04.411 FOR WHATEVER REASON. MAYBE THEY'RE FROM FROM ALABAMA BAM HA AND THEY HAD 654 00:56:04.411 --> 00:56:08.873 SOME THOUSAND THAT ARE REQUIRED THERE. WHATEVER THE REASON IF THEY'RE UNDER INSURED 655 00:56:08.873 --> 00:56:16.013 THEY STILL GET THAT 15 AND THEN THE LEGISLATOR HAS SINCE THE AMENDMENT IN 656 00:56:16.013 --> 00:56:23.692 SUBSECTION A OF THE MANDATORY MINIMUM UM UIM. THEY MOVED TO TO 25/50 A FEW YEARS 657 00:56:23.692 --> 00:56:30.779 BACK AND THEN JUST THIS JANUARY IT'S 35/75. MANDATORY MINIMUM UM UIM IN 658 00:56:30.779 --> 00:56:36.010 THE STATUTE OF NEW JERSEY AND IT EQUALS THE MANDATORY MINIMUM LIABILITY. IT'S 659 00:56:36.010 --> 00:56:40.059 A SAFETY NET IN NEW JERSEY. IT'S NOT A MEANS OF COMPENSATION. 660 00:56:40.059 --> 00:56:43.240 CHIEF JUSTICE RABNER: MR. CHIACCHERI FOCUSES ON THE ATLANTICWAL SHALL BEING DEEMED 661 00:56:43.240 --> 00:56:48.655 TO THE MAXIMUM UNINSURED MOTORIST VANL UNDER THE POLICY AN YOU'VE TOUCHED 662 00:56:48.655 --> 00:56:53.378 UPON THIS ALREADY TELL US WHAT YOU UNDERSTAND THAT LANGUAGE TO MEAN. 663 00:56:53.378 --> 00:56:56.668 LOUIS A. BOVÉ: THE MAXIMUM LIMIT AVAILABLE UNDER THE POLICY. THE UM 664 00:56:56.668 --> 00:57:03.601 UIM LIMIT UNDER THE POLICY. I LITIGATE ACTIONS IN THIS COURT'S HEARD DJ AXES AND 665 00:57:03.601 --> 00:57:09.223 DECIDED MANY OF THEM FOR DECADES. AND WHEN YOU HAVE A CASE IN FRONT OF 666 00:57:09.223 --> 00:57:13.300 YOU AND PEOPLE SPEAK IN TERMS OF AVAILABLE LIMITS THEY'RE TALK ABOUT THE DECLARED 667 00:57:13.300 --> 00:57:17.420 LIMITS UNDER THE POLICY. OF COURSE THE LEGISLATOR IS SAYING THE SAME THING. 668 00:57:17.420 --> 00:57:24.916 IF YOU GO TO 1728B THEY USE THE WORD AVAILABLE IN THAT IN REFERENCE TO THE 669 00:57:24.916 --> 00:57:29.770 DECLARED LIMITS UNDER THE POLICY. IN THE LEGISLATIVE STATEMENT ACCOMPANYING 670 00:57:29.770 --> 00:57:35.222 THE AMENDMENT THEY USE THE WORD AVAILABLE UNDER THE POLICY TWICE REFERRING TO IN 671 00:57:35.222 --> 00:57:39.788 THAT INSTANCE THE PERSONAL LINES POLICY BUT AGAIN THE LIMITS UNDER THE POLICY. 672 00:57:39.788 --> 00:57:44.618 WHEN YOU SAY AVAILABLE UNDER THE POLICY IN MY BUSINESS YOU MINE THE LIMITMENT AND 673 00:57:44.618 --> 00:57:51.393 THAT'S WHAT THE AMENDMENT DID. JUSTICE PATTERSON: BLOEF 674 00:57:51.393 --> 00:57:59.861 ONE LAST THING. UNDER AGAIN THE 2114 THE CA2114ISO FORM OOH PROVED BY DOBI 675 00:57:59.861 --> 00:58:05.752 THAT WAS IN EFFECT WHEN PINTO WHICH HAD TO STEP TOWN WHICH WASN'T ACCEPTED FOR 676 00:58:05.752 --> 00:58:09.769 EMPLOYEES. THE LIMIT PROVISION WHERE YOU FIND THE STEP DOWN IN THESE POLICIES 677 00:58:09.769 --> 00:58:17.136 IT SAYS IN FRONT OF EACH OF THE STEP-DOWN PROVISIONS IN THE POLICY MAXIMUM 678 00:58:17.136 --> 00:58:22.457 LIMIT OF INSURANCE FOR THIS COVERAGE. WHAT THEY ARE REFERRING TO IN THE STATUTE 679 00:58:22.457 --> 00:58:28.580 IS JUST THAT BECAUSE IT'S PULLED FROM THE DOBI APPROVED ISO FORM. WHEN 680 00:58:28.580 --> 00:58:35.564 WE SAY MAXIMUM LIMIT UNDER THE POLICY IT'S THE MAXIMUM LIMIT OF UM AND UIM COVERAGE 681 00:58:35.564 --> 00:58:46.296 IN IN CONTEXT. THE NOTION THAT 1728B WHICH REQUIRES AN INSURED TO OFFER NOT 682 00:58:46.296 --> 00:58:53.314 BINDS, OFFER X AMOUNT OF UM/UIM COVERAGE IT HAS NEVER CHANGED DESPITE THE AMENDMENT 683 00:58:53.314 --> 00:59:01.532 250 TO 5 HUNDRED THOUSAND. OFFERING IT. AND SDURG DID HERE. IN MY VIEW ZURICH 684 00:59:01.532 --> 00:59:07.925 WOULD BE HAPPY TO WRITE A POLICY WITH 2 MILLION DOLLARS OF UM UIM LIMIT 685 00:59:07.925 --> 00:59:12.074 BECAUSE THEY WOULD COLLECT PREMIUMS. THAT'S PRECISELY WHAT THEY'RE DOING IN THE 686 00:59:12.074 --> 00:59:20.284 STATE OF NEW HATCH SHIR WHERE THE NEW HAMPSHIRE LEGISLATURE IS SAVING YOU 687 00:59:20.284 --> 00:59:25.330 HAVE TO HAVE MATCHING UM UIM BENEFITS IN ITS STATUTE. IF YOU LOOK AT THE REJECTION 688 00:59:25.330 --> 00:59:30.086 OF LIMITS FORM. JUSTICE WAINER APTER: DO YOU HAVE A CITATION 689 00:59:30.086 --> 00:59:34.331 FOR THAT. LOUIS A. BOVÉ: FOR THE IT'S IN OUR BRIEF IT'S A 690 00:59:34.331 --> 00:59:41.927 FOOTNOTE BUT WE LAY IT OUT VERBATIM. I CAN GIVE IT TO YOU IN ONE SECOND. 691 00:59:41.927 --> 00:59:44.401 JUSTICE WAINER APTER: I CAN FIND IT THEN. DON'T WORRY ABOUT IT. 692 00:59:44.401 --> 00:59:50.633 ATTORNEY 3: LOUIS A. BOVÉ: APPELLATE BRIEF MY BRIEF FOOT 693 00:59:50.633 --> 00:59:59.386 NIGHT 8 PAGE 20. JUSTICE WAINER APTER: DO YOU HAVE IN THAT 694 00:59:59.386 --> 01:00:05.915 BOVÉ I HAVE IT IN MY NOTES AS WELL BUT IF YOU LOOK AT THE SELECTION REJECTION LIMIT 695 01:00:05.915 --> 01:00:12.046 SUMMARY FORM SO I'VE LITIGATED THIS FORM IN MANY DIFFERENT STATES FOR ZURICH 696 01:00:12.046 --> 01:00:16.947 AND OTHER INSURESERS AMAZON IS THE INSURER ENTERPRISE THEY ALL USE THESE. THIS 697 01:00:16.947 --> 01:00:23.403 IS FOUND IN APPENDIX 518 IT GOES THROUGH EVERY STATE IN THE UNION, RIGHT. THAT 698 01:00:23.403 --> 01:00:28.042 TJ MAX MIGHT HAVE A VEHICLE. NOW OF COURSE THEY HAVE VEHICLES IN BERLIN 699 01:00:28.042 --> 01:00:33.293 THEY HAVE VEHICLES ALL OVER THE WORLD. IT'S A HUGE COMPANY. AGAIN OVER A HUNDRED 700 01:00:33.293 --> 01:00:39.067 50 NAMED INSUREDS UNDER THIS POLICY ALONE. IF YOU GO THROUGH IT YOU'LL 701 01:00:39.067 --> 01:00:46.286 SEE THAT THEY METHODICALLY ELECTED NO UM/UIM COVERAGE IN THOSE STATES THAT THERE 702 01:00:46.286 --> 01:00:50.817 ISN'T A MANDATORY MINIMUM WHEN THERE IS A MANDATORY MINIMUM THEY ELECTED 703 01:00:50.817 --> 01:01:02.801 THOSE AND FOR EXAMPLE, NEW HATCH SURE 2 MILL IN A FOR A VEHICLE IN GARAGED. THIS IS 704 01:01:02.801 --> 01:01:09.556 FOR EVERY FLEET POLICY ENINSURED. THEY GENERALLY HAVE LIABILITY LIMITS 705 01:01:09.556 --> 01:01:13.112 USUALLY THEY'RE A MILLION MIGHT BE TWO MILLION. JUSTICE PATTERSON: 706 01:01:13.112 --> 01:01:19.458 LET ME ASK YOU UNDER WHAT CIRCUMSTANCES WOULD MR. CHIACCHERI AND I APOLOGIZE 707 01:01:19.458 --> 01:01:25.047 IF I'M MS. PRONOUNCING HIS NAME HAVE BEEN HAVE HAD ACCESS TO THE 2 MILLION DOLLAR 708 01:01:25.047 --> 01:01:28.587 LIABILITY LIMIT. LOUIS A. BOVÉ: IF HE RAN SOMEONE OVER AND KILL 709 01:01:28.587 --> 01:01:33.451 HIM HE WOULD HAVE ACCESS TO IT AND IT'S PARTICULARLY TELLING IN IN POLICY. I DON'T 710 01:01:33.451 --> 01:01:39.203 WANT TO GET INTO THE WEEDS BUT I WILL BRIEFLY. THE ZURICH POLICY IS WRITTEN 711 01:01:39.203 --> 01:01:45.426 WITH WHAT WE CALL A MATCHING DEDUCTIBLE THAT TA ERODES FOR DEFENSE COSTS OR AL 712 01:01:45.426 --> 01:01:51.357 AE IN THE INDUSTRY IS ALLOCATED ADJUSTMENT LOSS EXPENSE. BUT THE SIMPLE WAY TO 713 01:01:51.357 --> 01:01:57.860 FRAME IT IS EVERY ACCIDENT 2 MILLION LIABILITY LIMIT SUBJECT TO A MATCHING 2 MILLION 714 01:01:57.860 --> 01:02:02.512 DOLLAR DEDUCTIBLE PER ACCIDENT. A. THE SAME DEDUCTIBLE APPLIES TO UM 715 01:02:02.512 --> 01:02:09.259 UIM. JUSTICE PATTERSON: THIS IS MATCHING THAT TJM. 716 01:02:09.259 --> 01:02:11.831 LOUIS A. BOVÉ: AND DEFENSE COSTS AND THE POLICY AS A WHOLE ALONG WITH 717 01:02:11.831 --> 01:02:19.336 OUR WORKERS COMP POLICY AN THEIR GL POLICY IS SUBJECT TO A 2 # 51 MILLION DOLLAR 718 01:02:19.336 --> 01:02:25.387 AGGREGATE DEDUCTIBLE MEANING IN A YEAR THEY HAVE SOME SPENDS 251 MILLION 719 01:02:25.387 --> 01:02:30.715 OF THEIR OWN MONEY OF THEIR OWN MONEY BEFORE ANY INSURANCE KICKS IN OR. 720 01:02:30.715 --> 01:02:33.943 JUSTICE PATTERSON: SELF INSURED. LOUIS A. BOVÉ: ALL OF 721 01:02:33.943 --> 01:02:39.431 THESE FLEET POLICIES ARE FRONTING POLICIES AND I'VE BEEN DOING THIS TOO LONG 40 722 01:02:39.431 --> 01:02:46.620 YEARS. BUT THESE ARE FRONTING POLICIES BUT THEY COMPLY PAINSTAKINGLY WITH EVERY 723 01:02:46.620 --> 01:02:51.499 STATE UNIQUE MOTOR VEHICLE LAW. THAT'S WHY I'M IN BUSINESS BECAUSE EVERY 724 01:02:51.499 --> 01:02:55.013 STATE IS A LITTLE DIFFERENT. IT GIVES SHUSHGS WHO YOU THINK WOULD BE SOPHISTICATED 725 01:02:55.013 --> 01:03:00.089 IN WHAT THEY'RE SELLING THEY MAKE MISTAKES. THEY DON'T NECESSARILY FOLLOW THE 726 01:03:00.089 --> 01:03:04.871 EVERY CHANGING LANDS ESCAPE OF MOTOR VEHICLE FINANCIAL RESPONSIBILITY LAW 727 01:03:04.871 --> 01:03:11.406 IN ALL STATES. SOMETIMES THEIR FORMS ARE A LITTLE MESS. IF THEIR FORM IS A MISS 728 01:03:11.406 --> 01:03:16.496 AND THE INSURED DIDN'T SIGN A REJECTION FORM CORRECTLY IN THE RIGHT FONT 729 01:03:16.496 --> 01:03:21.020 AND ALL OF THAT AND THEY DON'T HAVE IT IN THEIR FILE THEIR POLICY IS REFORMED TO THE 730 01:03:21.020 --> 01:03:25.734 BODILY INJURY LIMITS LIKE MR. CHIACCHERI WANTS HERE. THE CITE ON THAT IS 731 01:03:25.734 --> 01:03:34.111 1731 IS THE SECTION, 42PACS1731. THE LITIGATED ALL THE TIME ACROSS THE RIVER. 732 01:03:34.111 --> 01:03:40.284 PROBABLY OVER HERE ONCE IF A WHILE TOO. I JUST SAY THAT, YOU KNOW, THESE FLEET 733 01:03:40.284 --> 01:03:47.697 POLICIES THAT'S WHAT THEY WANT TO DO AND AGAIN THE REASON THESE BIG INSUREDS 734 01:03:47.697 --> 01:03:55.246 HAVE ALL OF THESE MANDATORY MINUTE MUMS THEY COMPLY WITH EACH STATE MANDATORY 735 01:03:55.246 --> 01:03:59.495 MINIMUM OR REJEBLTH UM/UIM COVERAGE WHERE IT DOESN'T REQUIRED HAS TO DO WITH 736 01:03:59.495 --> 01:04:02.754 THE COSTS HAS TO DO WITH THE FACT THAT THEY'RE PAYING FOR WORKERS' COMPENSATION 737 01:04:02.754 --> 01:04:07.793 BENEFITS WHICH IS WHAT IS PRINCIPALLY IN THIS STATE AND OTHERS DESIGNED 738 01:04:07.793 --> 01:04:13.345 TO PROTECT WORK PLACE INJURIES SUCH AS MR. CHIACCHERI OR MR. TRAVIESO'S LOSS. 739 01:04:13.345 --> 01:04:18.629 JUSTICE PATTERSON: SO MR. CHIACCHERI IS IN AN ACCIDENT HE'S 740 01:04:18.629 --> 01:04:22.689 COVERED BY COMP. LOUIS A. BOVÉ: OF COURSE. 741 01:04:22.689 --> 01:04:26.504 JUSTICE PATTERSON: SO HE'S COVERED BY COMP AND THEN IF HE'S IN AN ACCIDENT HE'S 742 01:04:26.504 --> 01:04:30.240 AT FAULT AND THERE'S A SERIOUS INJURY OR A DEATH. LOUIS A. BOVÉ: 743 01:04:30.240 --> 01:04:35.726 COVERED BY OUR POLICY BECAUSE LIABILITY COVERAGE FOLLOWS THE VEHICLE. SO, YOU 744 01:04:35.726 --> 01:04:41.104 KNOW, AS A GENERAL PROPOSITION AS OPPOSE TODAY FIRST PARTY BENEFITS. SO 745 01:04:41.104 --> 01:04:45.997 IF MR. CHIACCHERI WAS UNFORTUNATE ENOUGH TO RUN SOMEBODY OVER IN THE COURSE DID AN 746 01:04:45.997 --> 01:04:50.084 COVE OF HIS EMPLOYMENT OR NOT WHILE DRIVING A COVERED AUTOEN THE ZURICH 747 01:04:50.084 --> 01:04:54.179 POLICY HE WOULD HAVE 2 MILLION DOLLARS IN COVERAGE TO PROTECT HIS ASSETS AN THE 748 01:04:54.179 --> 01:04:59.091 POINT I WAS TRYING TO MAKE AND GOT LOST WAS BECAUSE THESE ARE FRONTING 749 01:04:59.091 --> 01:05:04.290 POLICIES SUBJECT TO A DEDUCTIBLE THAT IS MEANINGFUL COVERAGE. HE HAS 2 MILLION 750 01:05:04.290 --> 01:05:12.327 DOLLARS IN LIABILITY COVERAGE PAID FOR BY HIS EMPLOYER. THE SUBROGATION RULE 751 01:05:12.327 --> 01:05:18.933 DOESN'T APPLY WHEN THE INSURER DOESN'T PAY ALIABILITY CLAIM. SO THE POINT 752 01:05:18.933 --> 01:05:24.803 BEING THAT HE'S THE ACTIVE TORTFEASOR THIS THAT UNFORTUNATE SITUATION. HIS COMPANY 753 01:05:24.803 --> 01:05:29.905 AS THEY WERE SAYING ALWAYS PROTECTING THEIR CORPORATE ASSETS THEY ARE 754 01:05:29.905 --> 01:05:33.768 VICARIOUSLY IF HE WAS IN THE COURSE AN SCOPE BUT HE WAS OUTSIDE THE COURSE CAN SCOPE 755 01:05:33.768 --> 01:05:37.510 THE POLICY WOULD STILL RESPOND TO HIM BECAUSE HE'S A PERMISSIVE USER OF 756 01:05:37.510 --> 01:05:42.167 A COVERED AUTO AND OF COURSE YOU'RE FARM WITH PERMISSIVE USER ROLE IN NEW JERSEY 757 01:05:42.167 --> 01:05:48.672 FAME US FOR IT. YOU KNOW, YOU'RE SERIOUS ABOUT PERMISSIVE USERS ABOUT BEING 758 01:05:48.672 --> 01:05:54.326 INSURED IN THE STATE OF N.J. UNLESS YOU SEAL ON STEEL A CAR YOU'RE A PERMISSIVE 759 01:05:54.326 --> 01:06:00.165 USER. AGAIN THERE'S NOTHING IN THE STATUTE HERE. I DON'T WANT TO BELABOR THE 760 01:06:00.165 --> 01:06:10.275 POINT THAT SUGGESTS THAT THE SENATOR WANTED TO ENHANCE THE UM UIM COVERAGE 761 01:06:10.275 --> 01:06:14.953 TO EMPLOYEES. WHAT HE WANTED AND WHAT THE STATUTE SAYS IS HE WANTED TO MAKE SURE 762 01:06:14.953 --> 01:06:20.313 THAT EMPLOYEES GET THE SAME FIRST PARTY BENEFITS AS THEIR EMPLOYERS OR THE 763 01:06:20.313 --> 01:06:23.724 PRINCIPLES OF THE COMPANY. JUSTICE WAINER APTER: HOW TOW RESPOND 764 01:06:23.724 --> 01:06:28.332 TO YOUR ADVERSE SUGGESTION THAT THIS SIMPLY DIDN'T EXIST AT THE TIME THAT 765 01:06:28.332 --> 01:06:34.662 THE AMENDMENT WAS ENACTED MEANING THAT BEFORE THEN THE LIABILITY LIMITS AND THE 766 01:06:34.662 --> 01:06:43.612 UM/UIM LIMITS WERE ALWAYS THE SAME AND IT'S ONLY AFTERWARDS THAT INSURERS 767 01:06:43.612 --> 01:06:48.708 STARTED ISSUING POLICIES THAT HAD LIABILITY LIMIT THAT WERE GREATER THAN THE UM 768 01:06:48.708 --> 01:06:54.988 AND UIM. A. BOVÉ I CAN'T RESPOND OTHER THAN SAY IT'S NONSENSE MUCH 769 01:06:54.988 --> 01:07:00.830 THESE POLICIES HAVE BEEN WRITTEN FOR DECADES. THEY'RE TWO DIFFERENT TYPES OF COVERAGE 770 01:07:00.830 --> 01:07:04.321 MUCH ONE IS A LIABILITY COVERAGE THAT COVERS EMPLOYEES FOR EXAMPLE. THE 771 01:07:04.321 --> 01:07:10.136 NAMED INSURED. OWNERS SHAREHOLDER ALL SHORTS OF THINGS. ANYONE QUALIFIES AS AN 772 01:07:10.136 --> 01:07:15.034 INSURED AGAINST LIABILITY CLAIMS. RUNNING SOMEBODY OVER, RUNNING INTO AN 773 01:07:15.034 --> 01:07:20.750 ACCIDENT. CAT ATROUGH I CAN LOSSES. I'M INVOLVED IN A CASE THAT CAME OUT OF 774 01:07:20.750 --> 01:07:28.368 NEWARK ABOUT BAD FAITH CASE 15 MILLION DOLLAR CASE WHERE A VEHICLE TOOK A WOMAN 775 01:07:28.368 --> 01:07:34.195 WHO WAS ON THE SIDE OF ROAD'S WOMAN'S LEGS OFF. YOU NEED LIABILITY COVERAGE. 776 01:07:34.195 --> 01:07:41.273 THESE HAVE HAD A MILLION. I'VE NEVER SEEN A COMMERCIAL AUTO POLICY EVEN FOR A 777 01:07:41.273 --> 01:07:46.331 MOM AND POP VERY RARE TO YOU SEE THEM WITH LESS THAN A MILLION LIMIT. BUT 778 01:07:46.331 --> 01:07:52.019 YOU I SEE THE MINIMUM UM UIM COVERAGE EVERY DAY OF THE WEEK. THAT IS BEEN THE 779 01:07:52.019 --> 01:07:55.435 -- YOU KNOW, THAT'S JUST THE INDUSTRY PRACTICE. JUSTICE WAINER 780 01:07:55.435 --> 01:07:58.933 APTER: THERE'S NOTHING ON THE RECORD IN THIS EITHER WAY. SO IN YOUR EXPERIENCE 781 01:07:58.933 --> 01:08:02.353 AND IN YOUR ADVERSE'S. LOUIS A. BOVÉ: WHAT I CAN SAY TO YOU 782 01:08:02.353 --> 01:08:06.985 IS IF NEW JERSEY WANTED TO RAISE THE UM/UIM LIMITS OR REQUIRED MATCHING 783 01:08:06.985 --> 01:08:13.425 LIKE IN NEW HARP SHEER I WOULD IMAGINE THAT CLIENT WOULD BE OKAY WITH THAT BECAUSE 784 01:08:13.425 --> 01:08:18.466 THEY WOULD CHARGE PREMIUM COMMENSURATE WITH IT. WHAT MR. CHIACCHERI IS 785 01:08:18.466 --> 01:08:25.842 ASKING IS 133 THREE FOLD INCREASE OVER THE DECLARED UIM LIMIT UNDER THIS POLICY. 786 01:08:25.842 --> 01:08:32.513 133 TIMES TO GET TO 2 MILLION DOLLARS UM/UIM LIMITS WITH NO CORRESPONDING PREMIUM. 787 01:08:32.513 --> 01:08:41.884 THAT I'M CERTAIN -- LEGAL TJX WILL BEAR THE BRUNT BUT IN THE TRAVIESO CASE 788 01:08:41.884 --> 01:08:46.155 THAT IS NOT A FRONT BEING POLICY. IT'S A FLEET POLICY BECAUSE CAR DEALERS BUT 789 01:08:46.155 --> 01:08:50.879 WE'LL GET TO TRAVIESO CAR DEALERS ALSO HAVE LOTS OF CARS. THEY LEND CARS 790 01:08:50.879 --> 01:08:55.907 OUT. THEY HAVE SHOW CARS. YOU KNOW, PEOPLE DEMOS. JUSTICE HOFFMAN: 791 01:08:55.907 --> 01:09:00.219 I'D LIKE TO BETTER UNDERSTAND THE ANSWER TO MY QUESTION BEFORE. BEFORE THE 07 792 01:09:00.219 --> 01:09:07.352 AMENDMENT HOW MUCH WAS MR. PINTO ENTITLED TO RECOVER FOR UM COVERAGE FROM THE 793 01:09:07.352 --> 01:09:11.646 COMPANY. LOUIS A. BOVÉ: HE WAS STEP DOWN IN PINTO. 794 01:09:11.646 --> 01:09:14.993 JUSTICE HOFFMAN: BUT HOW MUCH WAS HE ENTITLED TO RECOVER FROM THE COMPANY. 795 01:09:14.993 --> 01:09:18.126 LOUIS A. BOVÉ: NOTHING BECAUSE HIS THE STEP DOWN LIMIT WERE LESS THAN 796 01:09:18.126 --> 01:09:25.566 THE TORTFEASOR OWES LIMITS. IN NEW JERSEY DEFINES AND UNDERINSURED MOTORIST AS 797 01:09:25.566 --> 01:09:30.337 SOMEBODY THAT HAS LIABILITY COVERAGE GREAT ARE THAN THE DECLARED UM UIM 798 01:09:30.337 --> 01:09:38.781 LIMIT. AND AGAIN THAT DIFFERS STATE TO STATE TOO. ACROSS THE RIVER UIM IS ON 799 01:09:38.781 --> 01:09:41.873 TOP. JUSTICE HOFFMAN: I DON'T NEED TO KNOW ABOUT OVER THE 800 01:09:41.873 --> 01:09:46.655 ACROSS THE RIVER. LOUIS A. BOVÉ: SO MR. PINTO DIDN'T GET 801 01:09:46.655 --> 01:09:51.778 ANYTHING UNDER THE CORPORATE POLICY EVEN THOUGH IT HAD A MILLION DOLLAR UIM LIMIT 802 01:09:51.778 --> 01:09:56.593 OKAY. BECAUSE IT WAS STEP DOWN TO HIS PERSONAL LINES LEVEL. 803 01:09:56.593 --> 01:10:00.145 JUSTICE HOFFMAN: A HUNDRED THOUSAND. LOUIS A. BOVÉ: ASK THAT WAS 804 01:10:00.145 --> 01:10:04.438 LESS THAN OR EQUAL TO WHAT THE TOR FEESOR'S LIMIT WATTS. 805 01:10:04.438 --> 01:10:09.477 JUSTICE PATTERSON: THE TORT FEER WAS NOT NOT UNDER INSURED. LOUIS 806 01:10:09.477 --> 01:10:15.127 A. BOVÉ: RIGHT AS DEFINED BY NUMBER LAW. EVERY STATE DEFINES DIFFERENT AND THE 807 01:10:15.127 --> 01:10:19.796 POINT I'M MAKING HERE YES, I AM COVERAGE DOESN'T SIT ON TOP THE TORTFEASOR'S 808 01:10:19.796 --> 01:10:25.141 RECOVER. IT'S SUBSUMED BY IT. AND AGAIN. JUSTICE PATTERSON: BUT 809 01:10:25.141 --> 01:10:28.828 HIS AGAIN COVERAGE WAS A HUNDRED THOUSAND. LOUIS A. BOVÉ: 810 01:10:28.828 --> 01:10:30.817 YES. JUSTICE WAINER APTER: BUT HIS COVERAGE FROM THE COMPANY 811 01:10:30.817 --> 01:10:33.452 WAS ZERO. LOUIS A. BOVÉ: ZERO BECAUSE IT WAS STEPPED DOWN 812 01:10:33.452 --> 01:10:39.104 BUT AFTER THE AMENDMENT ALTHOUGH MR. PINTO DIDN'T AND I THINK IN JAMES OR IN MAYBE 813 01:10:39.104 --> 01:10:44.999 THE DID I SENT IN PINTO MADE A POINT IN THIS. AFTER THE AMENDMENT HE WOULD HAVE 814 01:10:44.999 --> 01:10:52.376 GOTTEN A MILLION DOLLARS IN UIM BENEFITS UNDER THAT PINTO POLICY THE EMPLOYER 815 01:10:52.376 --> 01:11:00.536 POLICY BECAUSE HE SAID LISTEN YOU'RE GOING TO PROVIDE THE SAME BENEFIT FIRST PARTY 816 01:11:00.536 --> 01:11:04.772 BENEFIT TO THE NAMED INSURED IT'S OFFICERS AN FOLKS LIKE THAT AS YOU ARE 817 01:11:04.772 --> 01:11:10.806 TO THE RANK AND FILE EMPLOYEES. THAT'S THE -- THAT WAS THE PURPOSE OF 1728F. 818 01:11:10.806 --> 01:11:17.486 AND IT WAS OVERRULED PINTO TO BE FRANK. THAT'S WHAT THEY DID. I WOULD 819 01:11:17.486 --> 01:11:28.261 ADD THIS, IN CLOSING. SENATOR IS NO STRANGER TO THIS PROCESS. HE JUST REINTRODUCED 820 01:11:28.261 --> 01:11:36.652 AGAIN A BILL THIS JANUARY SEEKING TO AMEND THE LEGISLATURE TO REQUIRE MATCHING 821 01:11:36.652 --> 01:11:46.981 UM UIM WITH LIABILITY LIMITS. SENATE BILL 31 # 57 DOES JUST THAT. IT HASN'T PASSED 822 01:11:46.981 --> 01:11:53.721 BUT WHY WOULD. JUSTICE PATTERSON: IT'S THE NEW HARP SHEER 823 01:11:53.721 --> 01:12:01.049 MODEL BROEF YES JUST REINTRODUCED IN JANUARY COVERS THESE THINGS. SO, YOU KNOW, 824 01:12:01.049 --> 01:12:11.039 I CAT FATHOM WHY THE SENATOR WHO PENNED THE AMENDMENT IN 2007 OR THE PASSED IN 825 01:12:11.039 --> 01:12:20.460 2007 WOULD FEEL THE NEED TO INTRODUCE ANOTHER BILL REQUIRING MATCHING LIMITS AS 826 01:12:20.460 --> 01:12:27.397 MR. CHIACCHERI ADVOCATES FOR IF THAT 18 YEAR OLD AMENDMENT ACCOMPLISHED THAT 827 01:12:27.397 --> 01:12:32.209 FEET. SO IT'S HARD FOR ME TO GET MY ARMS AROUND THAT BUT I KNOW THAT THE. 828 01:12:32.209 --> 01:12:35.954 JUSTICE PATTERSON: WAS THAT A RESPONSE TO THE DISTRICT COURT'S DECISION 829 01:12:35.954 --> 01:12:40.undefined IN THIS CASE. LOUIS A. BOVÉ: NO. HE'S INTRODUCED IT A NUMBER 831 01:12:49.083 --> 01:12:53.334 I JUST. CHIEF JUSTICE RABNER: ON THAT POINT IS THERE 832 01:12:53.334 --> 01:12:57.243 ANYTHING ELSE YOU'D LIKE TO ADD. LOUIS A. BOVÉ: NO JUSTICE THAUNGS. 833 01:12:57.243 --> 01:13:07.752 CHIEF JUSTICE RABNER: THANK YOU MR. SAVERCOOL. 834 01:13:07.752 --> 01:13:20.169 RYAN SAVERCOOL: GOOD MORNING CHUFS AN MEMBERS COURTS THE NUMBER DEFENSE ASSOCIATION 835 01:13:20.169 --> 01:13:25.420 SUBMITS THE SUBSECTION F IS CLEAR AND UNAMBIGUOUS. THE STATE HE IS POLICY 836 01:13:25.420 --> 01:13:29.824 LIMIT IS THE MAXIMUM UNDZ INSURED MOTORIST COVERAGE AVAILABLE UNDER THE POLICY. 837 01:13:29.824 --> 01:13:39.972 SUBSECTION PERFORM'S PLAYING LADIES AND GENTLEMEN WEIGHING PARITY IRRESPECTIV 838 01:13:39.972 --> 01:13:47.031 IVE OR THE PRINCIPLES THERE OF. THE FIRST SENTENCE IS AND ESTABLISHES THIS GENERAL 839 01:13:47.031 --> 01:13:53.169 RULE. THE POLICY CANNOT PROVIDE LESS UIM COVERAGE TO AN EMPLOYEE THAT THAN 840 01:13:53.169 --> 01:13:59.808 A NAMED INSURED. THE SECOND SENTENCE IS THE DEEMER PROVISION. IN COME APPLY MEANT 841 01:13:59.808 --> 01:14:04.903 THE FIRST STEPS BY ATO ALLOW OR OR FORM BEING THE POLICIES TO STATE THE 842 01:14:04.903 --> 01:14:14.933 MAXIMUM LIMIT. PLAINTIFF ASKS TO COURT PERFECT A BLANKET ROLE MANDATING UM LIABILITY 843 01:14:14.933 --> 01:14:20.437 LIMITMENT AS THE LEGISLATURE IT WOULD HAVE DONE SO IN SUBSECTION B BY EXCLUDEING 844 01:14:20.437 --> 01:14:25.981 CORPORATE POLICIES WITH NAMED INSUREDS AS CORPORATE ENTITIES FROM THE ELECTION. 845 01:14:25.981 --> 01:14:34.254 AS FOR SUBSECTION F'S LANGUAGE UNDER THE POLICY AGAIN THAT'S TAGGED BACK TO THE 846 01:14:34.254 --> 01:14:38.616 POLICY AS ISSUE. IF THE LEGISLATOR WANT MATCHING LIMIT IT WOULDN'T HAVE USED THE 847 01:14:38.616 --> 01:14:43.691 PHRASE UNDER THE POLICY. IT WOULD HAVE TIED IT BACK TO SUBSECTION B. 848 01:14:43.691 --> 01:14:46.527 JUSTICE PATTERSON: WHAT IS YOUR TERMINATIONS LANGUAGE MAXIMUM AVAILABLE. 849 01:14:46.527 --> 01:14:52.556 RYAN SAVERCOOL: IS THE STATED POLICY LIMIT. IT'S SIMPLE AS 850 01:14:52.556 --> 01:14:57.152 THAT. IT'S TIED TO THE POLICY. JUSTICE NORIEGA: CAN I ASK YOU GIVEN 851 01:14:57.152 --> 01:15:02.205 THE EXPLAINING OF WHY WE REACHED THIS POINT AND WHY THE LEGISLATION OVER 852 01:15:02.205 --> 01:15:09.488 RODE PINTO AND THE GENERAL UNFAIRNESS THAT THE SENATOR SUGGESTED EXISTED ARE THERE 853 01:15:09.488 --> 01:15:15.128 ANY LIMITS TO THE POTENTIAL GAMES MAN SHIP THAT A COMPANY MAY ENGAGE IN 854 01:15:15.128 --> 01:15:22.512 IN ORDER TO SET THE POLICY LIMITS AT A CERTAIN PLACE TO DIS VANTAGE OF AN PLEA. 855 01:15:22.512 --> 01:15:26.437 RYAN SAVERCOOL: . I DON'T THINK IT'S GAME MAN SHIP OR A DIS 856 01:15:26.437 --> 01:15:31.361 VANTAGE. GOING BACK TO THE LIMITS HERE THESE ARE THE STATUTORY MINIMUM LIMITS 857 01:15:31.361 --> 01:15:34.935 AT THAT TIME LEGISLATOR DEEMED APPROPRIATE TO PROVIDE THE SAFETY NET REQUIRED. 858 01:15:34.935 --> 01:15:42.679 SO AND THE EMPLOYEE HIMSELF COULD ALWAYS PROVIDE FOR MORE LIMIT UNDER HIS OWN POLICY. 859 01:15:42.679 --> 01:15:48.077 I THINK GOING TO OFFQUESTION THAT WAS ANSWERED BY SUBSECTION C WHICH SAYS 860 01:15:48.077 --> 01:15:54.933 IF AN INSURED HAS COVERAGE AVAILABLE UNDER ONE POLICY IT SHALL NOT EXCEED THE HIRE 861 01:15:54.933 --> 01:15:58.611 LIMIT. SO IF THE POLICY OF THE EMPLOYEE IS HIGHER THAN THE CORPORATE POLICY 862 01:15:58.611 --> 01:16:02.300 THEY GET THE SAFETY NET BENEFITS. JUSTICE NORIEGA: MEANING THEY 863 01:16:02.300 --> 01:16:06.516 HAVE TO ELECT FOR THEIR OWN BENEFITS BEYOND WHAT THE COMPANY IS PROVIDING. 864 01:16:06.516 --> 01:16:10.370 RYAN SAVERCOOL: YES AND I THINK IT'S INTERESTING TOO THAT 865 01:16:10.370 --> 01:16:15.421 THE NOTWITHSTANDING CLAUSE IS ONLY RELATED TO THE FIRST SENTENCE. IT DOESN'T CARRY 866 01:16:15.421 --> 01:16:19.851 ONTO THE SECOND SENTENCE. THAT MAKES SENSE. BECAUSE WHAT IT MEANS IS THAT 867 01:16:19.851 --> 01:16:24.717 WHEN A COMPANY IS ALLOWED TO E-ELECTRICITY ITS POLICY LIMIT FOR UIM PURPOSE SUNT 868 01:16:24.717 --> 01:16:29.724 SOME SUBSECTION B THE NOTWITHSTANDING CLAUSE CREATES THE EXCEPTION. THOSE 869 01:16:29.724 --> 01:16:35.847 POLICY LIMITS HAVE TO BE EQUAL FOR THE EMPLOYEE AND THE EMPLOYER. 870 01:16:35.847 --> 01:16:40.351 JUSTICE PATTERSON: SO JUST TO PLAY THAT OUT, WHAT WOULD BE PROVISIONS OF THIS SECTION 871 01:16:40.351 --> 01:16:47.567 OR ANY OTHER LAW TO THE CONTRARY THAT WOULD BE ESSENTIALLY RENDERED 872 01:16:47.567 --> 01:16:52.579 IRRELEVANT BY THE FIRST SENTENCE THE NOTWITHSTANDING CLAUSE. 873 01:16:52.579 --> 01:16:56.753 RYAN SAVERCOOL: SO WITH YOUR UNTO SUBSECTION B WHERE A POLICY HOLDER CAN 874 01:16:56.753 --> 01:17:00.226 E-ELECTRICITY WHAT THEIR YES, I AM COVERAGE IS GOING TO BE AND SO DOING SO 875 01:17:00.226 --> 01:17:04.841 LONG IT'S ABOVE THE STATUTE MINIMUM THEY CAN MAKE DIFFERENT LIMIT TOR THE NAMED 876 01:17:04.841 --> 01:17:09.471 INSUREDS AND EMPLOYEES. WHAT THE NOTWITHSTANDING CLAUSE DOES IS 877 01:17:09.471 --> 01:17:14.673 PROHIBIT THAT. IT REQUIRES MATCHING LIMIT FOR THE NAMED INSUREDS AND THE EMPLOYEES 878 01:17:14.673 --> 01:17:19.872 THAT'S THE PARITY REQUIRED AND. JUSTICE PATTERSON: BUT IT 879 01:17:19.872 --> 01:17:25.222 SUGGESTIONS THE INKREEGING PART OF THAT LANGUAGE IS THE PROVISIONS OF THIS 880 01:17:25.222 --> 01:17:32.222 SECTION ARE ANY OR LAW TO THE CONTRARY IS THAT SUBSECTION B WHAT WOULD BE OVER 881 01:17:32.222 --> 01:17:39.303 RIDDEN BY THE FIRST FEW WORDS OF SUBSECTION F IN SUBSECTION B? I UNDERSTAND A 882 01:17:39.303 --> 01:17:45.253 POLICY A POLICY PROVISION WOULD BE OVERRIDDEN IF IT DIDN'T CONFORM WITH 883 01:17:45.253 --> 01:17:51.300 BOTH F AND B BUT WHAT WOULD BE A LAW THAT THE PERHAPS THE LEGISLATOR WAS THINKING 884 01:17:51.300 --> 01:17:54.573 ABOUT THAT MIGHT BE OVERRIDDEN BY THAT LANGUAGE. RYAN 885 01:17:54.573 --> 01:18:04.638 SAVERCOOL: SO THE ONLY LIMIT IN SUBSECTION B IS THE CAP THAT THE UIM COVERAGE SELECTED 886 01:18:04.638 --> 01:18:09.033 BY THE POLICYHOLDER CAN'T BE ABOVE THE LIABILITY LIMITMENT WITH THE WHAT 887 01:18:09.033 --> 01:18:13.441 THE SUBSECTION F DOES IS ADDS AN ADDITIONAL LIMITATION THAT WHEN YOU 888 01:18:13.441 --> 01:18:19.002 E-ELECTRICITY THE LIMITS UNDER SUBSECTION B THEY HAD TO BE EQUAL FOR THE NAMED 889 01:18:19.002 --> 01:18:22.950 INSUREDS AN THE EMPLOYEES THAT'S WHAT THE NOTWITHSTANDING CLAUSE ACCOMPLISHES. 890 01:18:22.950 --> 01:18:25.614 JUSTICE PATTERSON: SO YOU WOULD VIRGINIA I A POLICY HA WOULD 891 01:18:25.614 --> 01:18:33.550 CONFORM IN SUBSECTION B IN ISOLATION BUT IF IT DOESN'T -- IF THERE'S ISN'T PARITY 892 01:18:33.550 --> 01:18:38.270 THAT'S BEING USED HERE. IF THERE ISN'T PARITY IT'S NOT GOING TO BE IF HE 893 01:18:38.270 --> 01:18:42.941 EVER. RYAN SAVERCOOL: YES. AGAIN GOING BACK TO THE LANGUAGE 894 01:18:42.941 --> 01:18:48.941 IN SUBSECTION F THERE REALLY IS NO PLAIN LANGUAGE THAT AFFECT MATCHING LIMIT. 895 01:18:48.941 --> 01:18:53.612 THEY WOULDN'T HAVE USED THE PHRASE UNDER THE POLICY. THEY WOULD HAVE EXPLICIT 896 01:18:53.612 --> 01:19:02.497 ARY CROSS REFERENCED SUBSECTION B OR ALL THE ALTERNATIVELY INSTEAD OF SAYING A POLICY 897 01:19:02.497 --> 01:19:05.920 THAT NAMES A CORPORATE OR BUSINESS ENTITY AS A NAMED INSURED SHALL BE DEEMED 898 01:19:05.920 --> 01:19:10.028 TO PROVIDE THE MAXIMUM UNINSURED MOTORIST COVERAGE AVAILABLE UNDER THE POLICY THE 899 01:19:10.028 --> 01:19:15.263 LANGUAGE AT ISSUE THEY STRUCK THAT AND SAID UIM COVERAGE EQUAL TO THE 900 01:19:15.263 --> 01:19:19.966 INSURED'S MOTOR VEHICLE LIABILITY LIMIT FOR BODILY INJURY. THAT THAT'S THE PLAIN 901 01:19:19.966 --> 01:19:25.748 LANGUAGE THAT'S MISSING HERE AND WITH THAT WE THINK THAT THE POLICY LIMIT IS THE 902 01:19:25.748 --> 01:19:28.748 MAXIMUM AVAILABLE. JUSTICE NORIEGA: CAN I ASK YOU A QUESTION. 903 01:19:28.748 --> 01:19:31.998 ON BEHALF OF YOUR ORGANIZATION DO YOU HAVE ANY RESPONSE TO THE COMMENT THAT 904 01:19:31.998 --> 01:19:37.826 THIS IS A LIMITED SITUATION OR ISOLATED POLICIES AND THAT THIS IS BEEN THIS IS 905 01:19:37.826 --> 01:19:43.561 VERY UNIQUE HAD IN TERMS OF THESE TWO POLICIES AND TWO CASE US. 906 01:19:43.561 --> 01:19:46.232 RYAN SAVERCOOL: I DON'T THINK WE'RE THE TRADERS ASSOCIATIONS WE REPRESENT 907 01:19:46.232 --> 01:19:52.463 THE COMPANIES IN THE UIM COVERAGE CASES BUT I CAN'T SPEAK TO WHAT THE POLICIES 908 01:19:52.463 --> 01:20:06.982 ACTUALLY SAY. CHIEF JUSTICE RABNER: THANK YOU MATTHEW G. 909 01:20:06.982 --> 01:20:12.187 BONANNO: THANK YOU, CHIEF JUSTICE, I WANT TO START AND I'M GOING TO JUMP AROUND A BIT 910 01:20:12.187 --> 01:20:18.868 IF YOU LET ME, PROPOSED LEGISLATION WHICH IS CURRENTLY PENDING PRESENTED BY SENATOR SCOTT. 911 01:20:18.868 --> 01:20:27.644 WHAT THAT PROPOSES IS MATCHING LIMITS IN ALL AUTO POLICIES, WELL, SPECIFICALLY PERSONAL. 912 01:20:27.644 --> 01:20:33.132 WHAT S 3157. JUSTICE WAINER APTER: DOES IT SPECIFICALLY SAY 913 01:20:33.132 --> 01:20:37.295 THIS IS ALREADY RECOVERED BY CURRENT LAW IN CORPORATE POLICIES. MATTHEW G. 914 01:20:37.295 --> 01:20:41.807 BONANNO: 3157 DOES NOT TOUCH SECTION F AT ALL. JUSTICE WAINER APTER: DOES 915 01:20:41.807 --> 01:20:46.786 IT SPECIFICALLY SAY THAT WE ARE REQUIRING THIS PARITY ONLY IN PERSONAL POLICIES BECAUSE 916 01:20:46.786 --> 01:20:50.878 IT IS ALREADY REQUIRED IN CORPORATE POLICIES. MATTHEW G. BONANNO: I DON'T THINK 917 01:20:50.878 --> 01:20:55.989 SO BUT AGAIN WHAT IT DOESN'T DO IS TOUCH SUBSECTION F WHICH IS SPECIFIC TO BUSINESS 918 01:20:55.989 --> 01:20:59.801 ENTITY POLICIES BECAUSE IT IS ALREADY BEING DONE. JUSTICE PATTERSON: WOULD 919 01:20:59.801 --> 01:21:04.540 IT INCLUDE BUSINESS POLICIES. MATTHEW G. BONANNO: IT WOULD INCLUDE EVERY 920 01:21:04.540 --> 01:21:09.113 POLICY IN NEW JERSEY SO YES. JUSTICE PATTERSON: SO IT WOULD MAKE THAT REQUIREMENT 921 01:21:09.113 --> 01:21:15.656 APPLICABLE TO -- MATTHEW G. BONANNO: TO ME THE PURPOSE BEHIND IT AND IT 922 01:21:15.656 --> 01:21:20.866 HAS BEEN IN THE WORK FOR AWHILE IS TO DEAL WITH PERSONAL POLICIES. AGAIN THE 923 01:21:20.866 --> 01:21:28.028 LEGISLATURE ENACTED X SPECIFIC TO BUSINESS POLICIES AND IT IS DISTINCT IN THAT WAY. 924 01:21:28.028 --> 01:21:32.206 JUSTICE WAINER APTER: THE LEGISLATURE HASN'T ACKNOWLEDGED THAT IN ANY WAY EVEN 925 01:21:32.206 --> 01:21:35.952 WITH THIS BILL EVEN THOUGH IT HAS BEEN INTRODUCED MANY TIMES. MATTHEW G. BONANNO: 926 01:21:35.952 --> 01:21:40.216 I DON'T KNOW OFF THE TOP OF MY HEAD. I WANT TO CLEAR UP THE FACTS HERE BECAUSE 927 01:21:40.216 --> 01:21:46.152 COUNSEL WAS TALKING ABOUT MR. CHIACCHERI RUNNING SOMEONE OVER AND THAT'S NOT WHAT HAPPENED. 928 01:21:46.152 --> 01:21:49.757 JUSTICE PATTERSON: NO, NO, I DON'T THINK ANYONE -- CHIEF JUSTICE 929 01:21:49.757 --> 01:21:54.843 RABNER: WE UNDERSTAND WHAT HE WAS SAYING. MATTHEW G. BONANNO: TO ANSWER 930 01:21:54.843 --> 01:22:03.546 JUSTICE HOFFMAN'S QUESTION IF WE PUT MR. CHIACCHERI IN MR. PIN TOE PINTO'S SITUATION, 931 01:22:03.546 --> 01:22:08.048 IN THAT CASE HE DIDN'T GET ANYTHING OUT OF HIS PERSONAL LINES POLICY AND THAT'S PRETTY 932 01:22:08.048 --> 01:22:13.211 MUCH HOW IT WORKS IN NEW JERSEY BECAUSE THESE POLICIES HAVE EXCLUSIONS FOR REGULAR USE 933 01:22:13.211 --> 01:22:18.943 SO MR. CHIACCHERI WHO USES HIS BUSINESS CAR REGULARLY, ANY COVERAGE WOULD BE EXCLUDED 934 01:22:18.943 --> 01:22:25.048 BY IF HE HAD, WHICH HE DOESN'T IN THIS CASE BUT IF HE HAD A PERSONAL POLICY IT WOULD BE 935 01:22:25.048 --> 01:22:30.855 EXCLUDED UNDER THIS. THE ONLY ROLE A PERSONAL POLICY PLAYS IS IN THE STEP DOWN THE POLICY 936 01:22:30.855 --> 01:22:38.625 SAYS HEY, WE'RE GOING TO DROP DOWN OUR LIMITS TO YOUR LIMITS. SO IF WE PLAYED 937 01:22:38.625 --> 01:22:46.055 IT OUT, IF MR. PIN TOE WAS INJURED HERE AND ASSUMED THE TORT-FEASOR WAS ACTUALLY UM UM 938 01:22:46.055 --> 01:22:56.902 HE HAD $50,000 OF COVERAGE RATHER THAN AN EQUAL $100,000 MR. PINT TOE WOULD GET NOTHING 939 01:22:56.902 --> 01:23:03.181 DESPITE HE CHOSE $100,000 BECAUSE THERE IS NO STEP UP PROVISION THAT SAYS IF YOU HAVE 940 01:23:03.181 --> 01:23:07.796 MORE COVERAGE THAN OUR UM UM HE COULD GET THAT. JUSTICE MICHAEL NORIEGA: 941 01:23:07.796 --> 01:23:12.257 UNDER YOUR SCENARIO HE WOULD GET THE 50 THAT WAS AVAILABLE. MATTHEW G. BONANNO: 942 01:23:12.257 --> 01:23:19.605 HE WOULD GET THE TORT-FEASOR'S 50 BUT IF HE PERSONALLY SELECTED $100,000 OF UM UM THE 943 01:23:19.605 --> 01:23:24.463 REMAINING 50 WOULD BE GONE. JUSTICE WAINER APTER: EITHER WAY HE WOULD GET 944 01:23:24.463 --> 01:23:32.052 ZERO FROM THE COMPANY, OR OF THE COMPANY'S INSURANCE POLICY? MATTHEW G. 945 01:23:32.052 --> 01:23:36.833 BONANNO: CORRECT BECAUSE IN THAT CASE THE DRIVER WASN'T UNDER INSURED BUT IF THE DRIVER 946 01:23:36.833 --> 01:23:43.208 HAD $50,000 HE COULD HAVE COLLECTED AN ADDITIONAL 50 UNDERSTAND THE COMPANY'S POLICY PURSUANT 947 01:23:43.208 --> 01:23:48.104 TO THAT STEP DOWN. JUSTICE PATTERSON: BASED ON THE DISPARITY BETWEEN 948 01:23:48.104 --> 01:23:51.908 HIS PERSONAL COVERAGE AND THE COVERAGE OF THE TORT-FEASOR. MATTHEW G. BONANNO: 949 01:23:51.908 --> 01:23:56.694 CORRECT BECAUSE AT THAT POINT THE TORT-FEASOR WOULD BE UNDER INSURED. IN THIS 950 01:23:56.694 --> 01:24:03.762 CASE, IF -- DASH GIVEN THE FACTS IN THIS CASE HE WOULD NOT BE ENTITLED TO THE ADDITIONAL 951 01:24:03.762 --> 01:24:11.653 $50,000 BECAUSE THE SOLE UM UM COVERAGE WOULD BE 15 SO THAT TORT-FEASOR WOULD NOT BE UNDER 952 01:24:11.653 --> 01:24:17.116 INSURED AND HE WOULD USE THAT ADDITIONAL 50,000 OF UM UM COVERAGE. JUSTICE 953 01:24:17.116 --> 01:24:20.235 PATTERSON: AND THAT'S BY OPERATION OF THE STATUTES. MATTHEW G. BONANNO: 954 01:24:20.235 --> 01:24:23.649 BY OPERATION OF EXCLUSIONS WITHIN PERSONAL POLICIES. JUSTICE PATTERSON: 955 01:24:23.649 --> 01:24:29.274 THIS HAS NOTHING TO DO WITH WHAT THIS ZURICH POLICY SAYS THAT'S HOW IT WOULD OPERATE 956 01:24:29.274 --> 01:24:33.566 BECAUSE OF THE WAY HIS PERSONAL INSURANCE WORKED. MATTHEW G. BONANNO: EVERY 957 01:24:33.566 --> 01:24:38.240 PERSONAL INSURANCE, THEY ALL EXCLUDE FOR THIS TYPE OF INSTANCE. JUSTICE 958 01:24:38.240 --> 01:24:41.478 PATTERSON: IS IT TRUE HE WOULD GET WORKERS' COMPENSATION. MATTHEW G. 959 01:24:41.478 --> 01:24:47.200 BONANNO: THEY WOULD ALWAYS GET WORKERS' COMPENSATION BUT I THINK THE LEGISLATURE AND 960 01:24:47.200 --> 01:24:55.504 THE COURTS ACKNOWLEDGE THE WORKERS, BRAIN INJURY WHICH NECESSITATED A KRIEN KNEE ON THE 961 01:24:55.504 --> 01:25:01.365 TOMORROW ME WITH SIGNIFICANT NEUROLOGICAL ISSUES WORKERS' COMPENSATION IS NOT GOING TO 962 01:25:01.365 --> 01:25:08.147 ADEQUATELY COMPENSATE SUCH A SEVERE AND SIGNIFICANT INJURY. FINALLY I 963 01:25:08.147 --> 01:25:14.442 WANT TO ADDRESS, FROM THE BEGINNING, THE DEFENSE'S ARGUMENT AS TO THIS SECOND SESSION HAS BEEN 964 01:25:14.442 --> 01:25:21.451 THIS DOOEM ARGUMENT, DOOEM MER ARGUMENT, THIS ENFORCEMENT ARGUMENT THAT DOES NOT SAY 965 01:25:21.451 --> 01:25:26.572 ANY OF THESE POLICIES THAT ARE WRITTEN WHICH THEY DON'T ABIDE BY WHAT THE LEGISLATURE SAYS 966 01:25:26.572 --> 01:25:30.996 THEY'RE DEEMED TO SATISFY THE STATUTORY REQUIREMENTS BUT IT IS IMPORTANT THAT NOWHERE 967 01:25:30.996 --> 01:25:39.604 ELSE IN 1728.1-1 IS THERE THIS TYPE OF ENFORCEMENT PROVISION THAT THE DEFENSE 968 01:25:39.604 --> 01:25:42.256 PROVIDES. JUSTICE PATTERSON: CAN I ASK YOU A QUESTION DO YOU AGREE THAT THE 969 01:25:42.256 --> 01:25:47.011 SECOND SENTENCE IS A D I.E., M E R PROVISION? MATTHEW G. BONANNO: I THINK 970 01:25:47.011 --> 01:25:55.025 IT HAD THE EFFECT OF DOOEMING POLICIES TO MEET THE STATUTORY REQUIREMENTS, BUT IT'S NOT 971 01:25:55.025 --> 01:26:04.439 AN ENFORCEMENT PROVISION BY ITSELF BECAUSE THE COURTS HAVE MADE CLEAR THAT BACK IN BERG 972 01:26:04.439 --> 01:26:13.865 ER THAT IN THE EVENT AN INSURER WRITES A POLICY THAT DOES NOT SATISFY 17281.1-1, IT IS 973 01:26:13.865 --> 01:26:20.906 AUTOMATICALLY REFORMED TO SATISFY THE POLICY -- THE STATUTORY REQUIREMENTS. SO 974 01:26:20.906 --> 01:26:29.567 THIS ARGUMENT THAT THIS IS JUST AN ENFORCEMENT, A DEEMER, HOWEVER YOU WANTED TO REFERENCE 975 01:26:29.567 --> 01:26:34.899 IT DOESN'T MAKE SENSE BECAUSE AGAIN IF AN INSURER WRITES A POLICY WITH LIMITS THAT ARE 976 01:26:34.899 --> 01:26:43.273 BELOW THE STATUTORY MANDATORY UNDER A OR UNDER B THERE IS NOT AN ENFORCEMENT PROVISION 977 01:26:43.273 --> 01:26:48.739 THERE THAT SAYS HEY INSURER IF YOU WRITE THESE VIOLATIVE POLICIES THEY ARE GOING TO BE 978 01:26:48.739 --> 01:26:52.682 REFORMED BECAUSE IT IS UNDERSTOOD THAT THEY ARE REFORMED. JUSTICE PATTERSON: 979 01:26:52.682 --> 01:26:56.187 THEY ARE IMMEDIATELY REFORMED BY VIRTUE OF A AND B. MATTHEW G. BONANNO: 980 01:26:56.187 --> 01:27:02.602 CORRECT, BUT IT DOESN'T NEED TO GO REFORM MAGS TRIGGER FOR LACK OF A BETTER TERM IN THOSE 981 01:27:02.602 --> 01:27:05.639 POLICIES. CHIEF JUSTICE RABNER: COUNSEL WERE THERE ANY OTHER POINTS YOU 982 01:27:05.639 --> 01:27:11.074 WANTED TO ADDRESS. MATTHEW G. BONANNO: I THINK THAT'S IT COUNSELS. THANK 983 01:27:11.074 --> 01:27:14.062 YOU. CHIEF JUSTICE RABNER: LET'S TAKE A BRIEF RECESS COUNSEL YOU'RE WELCOME 984 01:27:14.062 --> 01:27:18.848 TO STAY WHERE YOU ARE. YOU DON'T NEED TO RELOCATE TO THE OTHER SIDE OF THE COURTROOM, 985 01:27:18.848 --> 01:28:56.169 WE WILL MAKE THE MENTAL ADJUSTMENT. WE WILL BE BACK IN A FEW MOMENTS.