For Motor Vehicle Accidents, UIM Coverage May Be Available If the UIM Policy Exceeds That of The Other Driver, Known as The Tort Feasor.

Wilson v. Ortiz-Ponce

Docket No.: A-0316-19

Decided March 25, 2021

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

In a recent unpublished decision, the Appellate Division ruled a plaintiff cannot collect on her $100,000 Underinsured Motorist Coverage (UIM) when the defendant’s $100,000 had to be split with multiple injured plaintiff’s.

In Wilson, plaintiff Shirley Wilson’s car was rear-ended while stopped on Route 24 in Springfield. Defendant, Elvin Ortiz-Ponce, working for Randy’s Pro Landscaping Services, LLC (Randy’s), drove his truck and trailer into both plaintiff’s car and another vehicle, driven by Matthew Mizerak. Plaintiff alleges severe injuries to her neck that required surgery. According to plaintiff, Mizerak also needed knee surgery because of the accident.

Defendants Ortiz-Ponce and Randy’s were insured by a Progressive Commercial $100,000 Combined Single Limit (CSL), or “self-eroding,” policy. Having a CSL means the $100,000 in coverage must be split among claimants for bodily injury and property damage. At the time, plaintiff was driving her own vehicle and had $100,000 in underinsured motorist coverage (UIM) through New Jersey Manufacturers Insurance (NJM). She filed her original negligence complaint in Middlesex County against Ortiz-Ponce, Randy’s, and Mizerak, on April 9, 2018, then added a UIM count against NJM in her amended complaint on June 4, 2018. Shortly thereafter, she discovered Mizerak was also a plaintiff in a lawsuit against the same defendants in Union County.

The cases were consolidated, and Wilson’s case was transferred to Union County. Mizerak settled with Ortiz-Ponce and Randy’s under the Progressive CSL policy. Wilson settled with Ortiz-Ponce and Randy’s for the $28,869 sum that remained on the CSL policy.

On February 25, 2019, plaintiff sent NJM a letter, advising she intended to accept Progressive’s $28,869 settlement offer, and prosecute her UIM claim against it. Plaintiff was offered $28,869 from Progressive, essentially for her bodily injury claims, because her and Mizerak’s property damage were taken out first: $18,631 and $4,386.23 respectively, and he received a $48,113 payment for his bodily injuries.

NJM moved for summary judgment and on August 16, 2019, the court granted the motion. The motion judge noted that the UIM limits of plaintiff’s NJM policy were $100,000, identical to the tortfeasor’s liability limits, and thus recognized that plaintiff does not have a valid UIM claim under N.J.S.A. 17:28- 1.1(e). This was so even though plaintiff’s recovery under the tortfeasor’s liability policy was less than the full limit.

Plaintiff appealed and the Appellate Division affirmed, ruling that the law is clear that the analysis for UIM is a dollar for dollar comparison to the total amount available from the tort feasor and not whether that total amount is actually available to the injured person seeking UIM.

This case is important for all personal injury plaintiffs.  Insurance is the best way, and sometimes the only way, to recover monetary damages for personal injury.  For motor vehicle accidents, UIM coverage may be available if the UIM policy exceeds that of the other driver, known as the tort feasor.

If you or someone you know has been injured in a slip and fall, motor vehicle accident, truck crash, wrongful death, or other premises related injury, you need to make sure you contact a personal injury attorney with experience today.  Failing to consider these issues could result in your case be dismissed permanently.  Do not hesitate to contact Hark & Hark today to discuss your personal injury.

For personal injury matters, you pay nothing upfront, and our fee is paid as a percentage of your recovery. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties. We represent clients in all towns in New Jersey, including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.


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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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