Court of Appeals of Indiana.

Derek ASKLAR and Pauline Asklar, Appellants–Plaintiffs,

v.

David GILB, Paul Garrett Smith d/b/a Ph. One Trucking, Empire Fire and Marine Insurance Co., d/b/a Zurich, Appellees–Defendants,

Travelers Indemnity Company of America, Intervenor.

 

No. 02A03–1204–CT–170.

Nov. 15, 2012.

 

Appeal from the Allen Superior Court; The Honorable Stanley A. Levine, Judge; Cause No. 02D01–1003–CT–130.

Thomas A. Manges, Roby & Manges, Fort Wayne, IN, Attorney for Appellants Derek Asklar and Pauline Asklar.

 

Diana C. Bauer, Carson Boxberger, LLP, Fort Wayne, IN, Attorney for Appellee Empire Fire & Marine Insurance Company d/b/a Zurich.

 

OPINION

VAIDIK, Judge.

Case Summary

*1 Derek and Pauline Asklar (“the Asklars”) appeal the trial court’s decision to grant summary judgment in favor of Empire Fire and Marine Insurance Company (“Empire”). The Asklars contend that the trial court erred in holding that as a matter of law, Georgia law governs this dispute and that Empire’s uninsured/underinsured motorist coverage limit was only $75,000. Finding that Indiana law should apply in this case, but that Empire’s uninsured/underinsured motorist coverage limit is still only $75,000, we affirm in part and reverse in part.

 

Facts and Procedural History

On July 30, 2008, Derek Asklar was employed by Premium of North Carolina, and his services were being leased by Werner Transportation Services, Inc., a Georgia corporation. He was driving a semi-tractor trailer, owned by Schilli Leasing, an Indiana company, westbound on I–68 in West Virginia. The tractor-trailer was registered, principally garaged, and licensed in Indiana. Appellant’s App. p. 199. While stopped at the bottom of an exit ramp, Derek’s tractor-trailer was hit from behind by another semi truck driven by David Gilb in the course of his employment with One Trucking. As a result of the collision, six other people were injured, Derek required medical treatment, including neck surgery, and he has been unable to work since. Gilb’s truck was insured by Northland Insurance Company and had a single liability limit of $1,000,000. Because of all of the claims against Gilb resulting from this collision, Derek also attempted to recover under Werner Transportation’s uninsured/underinsured (UM/UIM) motorist coverage.

 

Werner Transportation’s liability insurance was with Empire. It provided $5,000,000 in liability coverage, but only $75,000 in UM/UIM motorist coverage. Id. at 88. John Werner, in writing and on behalf of Werner Transportation, elected to reduce the amount of UM/UIM coverage under its policy to $75,000. Appellee’s App. p. 16–20.

 

The Asklars brought suit against Gilb, One Trucking, Northland Insurance Company, and Werner Transportation’s insurance company, Empire, alleging negligence and seeking compensation for his injuries. Empire was joined in the lawsuit to determine how much of its UM/UIM coverage was available to Derek to fully compensate him for his injuries. After filing the lawsuit, the Asklars filed a motion for partial summary judgment against Empire, alleging that the UM/UIM coverage limit should be $5,000,000 under Indiana law. Empire filed a memo in opposition and filed its own motion for summary judgment, alleging that Georgia law applied to this case and the UM/UIM coverage was in accordance with the law at $75,000. The trial court held a hearing on the cross motions for summary judgment and granted Empire’s motion and denied the Asklars’ motion.

 

The Asklars filed a motion to correct errors, and Empire filed a statement in opposition. The trial court held a hearing on the motion to correct errors and entered an order denying the motion.

 

*2 The Asklars now appeal.

 

Discussion and Decision

There are three arguments raised on appeal: (1) whether the Asklars waived the argument that Georgia law does not apply by admitting in open court that it applied; (2) whether the trial court erred in granting summary judgment for Empire and finding that Georgia law applied; and (3) whether the trial court erred in granting summary judgment for Empire and finding its UM/UIM coverage limit to be $75,000.

 

I. Waiver

Empire contends that the Asklars have waived the argument that Georgia law does not apply to this case because his attorney admitted in open court that Georgia law did apply. A judicial admission is “a clear and unequivocal admission of fact, or a formal stipulation that concedes any element of a claim or defense ….“ Bandini v. Bandini, 935 N.E.2d 253, 265 (Ind.Ct.App.2010) (emphases added).

 

In this case the following exchange took place between the trial court judge and the Asklars’ attorney during a discovery motion hearing:

 

THE COURT: It’s not a coverage issue. It’s not whether they gave notice and all of those contractual questions. The question is to the amount of the underinsured motorist and whether there was a proper waiver, correct?

 

MANGES: Correct

 

THE COURT: Under Georgia law?

 

MANGES: Yes, absolutely.

 

Appellee’s App. p. 47. Empire argues that this constitutes a judicial admission. We disagree.

 

The statement made by the Asklars’ attorney at the hearing was neither a factual admission nor an element of the claim being asserted; this was a statement dealing with the potential choice-of-law issue that may arise in this case. Because this statement does not fall under the definition of a judicial admission, we find that the Asklars’ attorney did not make a binding admission that Georgia law applies in this case, and the issue is therefore not waived for our review.

 

II. Summary Judgment

When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269 (Ind.2009). All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007).

 

A. Application of Georgia Law

Finding that the Asklars have not waived the argument that Georgia law does not apply, we now must address the issue of whether the trial court erred in granting summary judgment for Empire and finding that Georgia law applies. The Asklars contend that the trial court erred in granting summary judgment in favor of Empire, arguing that Indiana law is applicable in this situation.

 

*3 Indiana Code section 9–25–4–1(b) deals with the financial requirements of Indiana drivers and provides in relevant part:

 

A person may not:

 

(1) register a motor vehicle;

 

in Indiana if financial responsibility is not in effect with respect to the motor vehicle under section 4 of this chapter, or the person is not otherwise insured in order to operate the motor vehicle.

Indiana Code section 27–7–5–2 addresses UM/UIM insurance and states that it applies to “any motor vehicle registered or principally garaged in this state.” While we recognize that Stonington Insurance Company v. Williams, 922 N.E.2d 660, 665 (Ind.Ct.App.2010), provides a five-factor analysis for choice-of-law issues, looking at these two statutes together, we find that in this case we need not reach this analysis because there is no choice-of-law issue. But see id. (court engaged in a five-factor analysis to determine which state had the most significant relationship to the parties and the transaction, considering: (a) the place of contracting; (b) the place of negotiation of the contract; (c) the place of performance; (d) the location of the subject matter of the contract; and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties). Any vehicle that is registered or principally garaged in Indiana must comply with Indiana insurance requirements, regardless of the fact that Werner Transportation is a Georgia corporation.

 

Since the tractor-trailer Derek was driving was registered, principally garaged, and licensed in Indiana, it therefore must meet the financial responsibility requirements set out in Indiana Code section 9–25–4–4 and the UM/UIM requirements set out in Indiana code section 27–7–5–2. Indiana law applies in this case, and the trial court erred in holding that the Georgia statute was the applicable law.

 

B. Amount of Coverage

Indiana Code section 9–25–4–4 provides, in relevant part, that “A motor vehicle liability policy under this article must contain the terms, conditions, and provisions required by statute and must be approved by the state insurance commissioner.” Ind.Code § 9–25–4–4(b).

 

One of those requirements is set forth in Indiana Code section 9–25–4–5 and determines the amount of minimum financial responsibility each driver must have. Another statutory requirement is UM/UIM insurance. This requirement is set forth in Indiana Code section 27–7–5–2, which states in relevant part:

 

(a) [T]he insurer shall make available, in each automobile liability or motor vehicle liability policy of insurance which is delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person and for injury to or destruction of property to others arising from the ownership, maintenance, or use of a motor vehicle, or in a supplement to such a policy….

 

*4 The amount of UM/UIM insurance must be “at least equal to the limits of liability specified in the bodily injury liability provisions of an insured’s policy, unless such coverages have been rejected in writing by the insured.” Id.

 

In this case, Empire’s bodily injury liability limit was $5,000,000, so that would be Werner Transportation’s required UM/UIM liability coverage under Indiana law if it had not rejected such coverage. In order to reject UM/UIM coverage, the rejection must be in writing and specify:

 

(1) that the named insured is rejecting:

 

(A) the uninsured motorist coverage;

 

(B) the underinsured motorist coverage; or

 

(C) both the uninsured motorist coverage and the underinsured motorist coverage;

 

that would otherwise be provided under the policy; and

 

(2) the date on which the rejection is effective.

 

Id. Werner signed a form rejecting the full UM/UIM coverage under Werner Transportation’s Empire insurance policy each April before the policy period began on May of that year. Appellee’s App. p. 14–20. He elected to maintain coverage in the amount of $75,000 instead of $5,000,000, and he signed, dated and returned the form, indicating the time at which the rejection of the full policy was to be effective. These rejections were explicit and in accordance with Indiana Code section 27–7–5–2. They also follow the DePrizio rule, which indicates that if an insurance company wants to eliminate any or all UM/UIM coverage, it should either:

1) secure[ ] the written waiver of coverage required under the statute and include[ ] the waiver within the policy prior to the commencement of coverage; or 2) if [the insurance company wants] to remove UM/UIM coverage during the policy’s term, it should [ ] propose[ ] a modification to such effect and offer [ ] to reduce the premium to reflect the removed coverage. In either case, it would be clear that the existence or nonexistence of UM/UIM coverage was a negotiated term of the policy.

 

Liberty Mut. Fire Ins. Co. v. Beatty, 870 N.E.2d 546, 551 (Ind . Ct.App.2007). Here, the rejection of the UM/UIM coverage took place before the policy period began, allowing it to be considered a negotiated term of the policy, as required by Indiana case law.

 

We therefore find that the trial court did not err in granting summary judgment to Empire and finding that its UM/UIM coverage limit was $75,000.

 

Affirmed in part and reversed in part.

 

MATHIAS, J., and BARNES, J., concur.

Superior Court of New Jersey,

Appellate Division.

AIG CENTENNIAL INSURANCE COMPANY, Plaintiff–Respondent,

v.

Gregory R. THOMPSON d/b/a Thompson Trucking, Defendant,

and

Ari Mutual Insurance Company, Defendant–Appellant.

 

Argued Oct. 23, 2012.

Decided Nov. 19, 2012.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L–3822–11.

Brooks H. Leonard argued the cause for appellant (Coughlin Duffy, LLP, attorneys; James P. Lisovicz, of counsel and on the brief; Mr. Leonard, on the brief).

 

Sandra S. Grossman argued the cause for respondent (Law Offices of Steven G. Kraus, attorneys; Ms. Grossman, on the brief).

 

Before Judges HARRIS and HOFFMAN.

 

PER CURIAM.

*1 This appeal arises from the Law Division’s declaration that defendant ARI Mutual Insurance Company (ARI Mutual) is obliged to reimburse plaintiff AIG Centennial Insurance Company (AIG) for personal injury protection (PIP) medical expense benefits paid to AIG’s insured under N.J.S.A. 39:6A–9.1. We reverse because the benefits were not paid in accordance with the policy covering the insured, but instead exceeded the policy limits due to AIG’s error.

 

I.

The dispute between the insurers has its genesis in an automobile accident that occurred on September 11, 2006. On that date, Dorothy Davis was the driver of a private passenger automobile owned by Sherman Harris, AIG’s named insured. According to a police report, Davis’s vehicle was struck by a dump truck operated by William H. Kanauss, III, a driver for Thompson Trucking.

 

At the time of the accident, Thompson Trucking’s liability insurer was ARI Mutual. Because the dump truck was a commercial vehicle, see N.J.S.A. 39:6A–2(a) and –4, there was no PIP coverage provided by ARI Mutual’s Business Auto Policy, except for injuries suffered by pedestrians. See N.J.S.A. 17:28–1.3.

 

Harris, however, had procured from AIG a basic automobile insurance policy, N.J.S.A. 39:6A–3.1, which provided PIP medical expense coverage of $15,000 per person, per accident. By letter dated September 18, 2006, AIG mistakenly notified Davis that Harris’s policy provided her with PIP coverage of $250,000. After submitting her written application for PIP benefits to AIG on September 25, 2006, Davis relied on AIG’s $250,000 representation and obtained medical treatment costing far in excess of the basic automobile insurance policy’s $15,000 PIP medical expense limitation. At some point, AIG realized that it had mistakenly advised Davis about the policy’s limit of liability and declined to provide further PIP benefits beyond what it had already expended. ARI Mutual reimbursed AIG $15,000 pursuant to N.J.S.A. 39:6A–9.1.

 

Davis filed a personal injury lawsuit against Kanauss, Gregory Thompson, and Thompson Trucking (the Thompson defendants) in August 2008. ARI Mutual provided a defense to the Thompson defendants pursuant to its Business Auto Policy.

 

In December 2009, Davis commenced a separate action against AIG, ARI Mutual, and the Thompson defendants, which sought, among other things, a declaration that “AIG is to afford coverage for any medical and/or hospital expenses up to $250,000 under the policy it issued and defendant AIG should be estopped from denying PIP benefits in excess of $15,000.” FN1 The complaint also sought a judgment “declaring that defendant AIG’s policy is reformed to include PIP coverage in the amount of $250,000.”

 

FN1. The personal injury and declaratory judgment actions were consolidated in the Camden vicinage.

 

Among the reasons for bringing this declaratory judgment action was Davis’s claimed inability “to resolve the third party case since she is uncertain as to whether or not said third party defendants and their carrier ARI [Mutual] would be responsible for the unpaid medical and surgical expenses.” Although AIG and ARI Mutual were co-defendants in Davis’s declaratory judgment action, they did not file cross-claims against each other relating to the ultimate responsibility for PIP payments under N.J.S.A. 39:6A–9.1.

 

*2 In October 2010, Davis settled her personal injury lawsuit against the Thompson defendants for $225,000. In March 2011, Davis’s claims against ARI Mutual and the Thompson defendants in the declaratory judgment action were dismissed. In like vein, but on a date not disclosed in the record, Davis separately settled her dispute with AIG, wherein AIG agreed to pay for all of Davis’s requested PIP expenses. The record is silent about the specific details concerning that settlement. AIG refers to having “reformed” the insurance contract, but it does not appear that Harris was a party to the “reformation” of his basic automobile insurance policy.

 

On April 28, 2011, AIG demanded reimbursement from ARI Mutual for the PIP benefits paid on Davis’s behalf in excess of $15,000, a sum totaling $75,634.29. On May 4, 2011, ARI Mutual declined to reimburse AIG for any amounts in excess of the $15,000 it had already paid.

 

On August 1, 2011, AIG filed the present lawsuit seeking (1) money damages against the Thompson defendants FN2 and (2) reimbursement or arbitration of AIG’s dispute against ARI Mutual. After consideration of the parties’ motions for summary judgment, the Law Division dismissed all of AIG’s claims against the Thompson defendants. In denying ARI Mutual’s motion, the court granted AIG’s application to not cap reimbursement at $15,000, and directed the insurers “to submit [AIG’s] claim for reimbursement to binding arbitration.” This appeal followed.

 

FN2. AIG’s complaint actually only sought recovery from “Gregory R. Thompson d/b/a Thompson Trucking” as a “tortfeasor responsible for payment to [AIG] of the amount of its personal injury protection benefits” pursuant to N.J.S.A. 39:6A–9.1.

 

II.

“An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46.” Chance v. McCann, 405 N.J.Super. 547, 563 (App.Div .2009) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445–46 (2007)). In such review, “ ‘[a] trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.’ “ Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (alteration in original) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Moreover, because we are specifically reviewing the Law Division’s application of N.J.S.A. 39:6A–9.1, we need not defer to the motion court’s “interpretive conclusions.” Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012).

 

PIP reimbursement to a PIP carrier is strictly governed by N.J.S.A. 39:6A–9.1. IFA Ins. Co. v. Waitt, 270 N.J.Super. 621, 622 (App.Div.1994). The statute states in pertinent part:

 

a. An insurer, health maintenance organization or governmental agency paying benefits pursuant to subsection a., b., or d., of section 13 of P.L.1983, c. 362 (C. 39:6A–4.3), personal injury protection benefits in accordance with section 4 or section 10 of P.L.1972, c. 70 (C. 39:6A–3.1) or benefits pursuant to section 45 of P.L.2003, c. 89 (C. 39:6A–3.3), as a result of an accident occurring within this State, shall, within two years of filing of the claim, have the right to recover the amount of payments from any tortfeasor who was not, at the time of the accident, required to maintain personal injury protection coverage required to be provided in accordance with section 18 of P.L.1985, c. 520 (C. 17:28–1.4), or although required did not maintain personal injury protection or medical expense benefits coverage at the time of the accident.

 

*3 b. In the case of an accident occurring in this State involving an insured tortfeasor, the determination as to whether an insurer … is legally entitled to recover the amount of payments and the amount of recovery, including the costs of processing benefit claims and enforcing rights granted under this section, shall be made against the insurer of the tortfeasor, and shall be by agreement of the involved parties or, upon failing to agree, by arbitration. Any recovery by an insurer … pursuant to this subsection shall be subject to any claim against the insured tortfeasor’s insurer by the injured party and shall be paid only after satisfaction of that claim, up to the limits of the insured tortfeasor’s motor vehicle … insurance policy.

 

[N.J.S.A. 39:6A–9.1 (emphasis added).]

 

The statute was not among the provisions contained in the original New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A–1 to –35. Instead, it was enacted as part of the New Jersey Automobile Insurance Freedom of Choice and Cost Containment Act of 1984. Liberty Mut. Ins. Co. v. Selective Ins. Co., 271 N.J.Super. 454, 458 (App.Div.1994). Its purpose was to reduce “the cost of insurance for automobile owners and allow[ ] automobile insurers to recover PIP through reimbursement.” State Farm Mut. Auto. Ins. Co. v. Licensed Beverage Ins. Exch., 146 N.J. 1, 9 (1996). “Allowing the PIP carrier to recoup its payments from a commercial liability carrier reduces premiums for private automobile insurance, thus advancing a purpose of N.J.S.A. 39:6A–9.1.” Liberty Mut., supra, 271 N.J.Super. at 458.

 

“Our paramount goal in interpreting a statute is to give effect to the Legislature’s intent.” Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012). To do so, “courts begin with the language of the statute.” In re Kollman, 210 N.J. 557, 568 (2012). Statutory words gain their meaning and significance by reading them within the context of the legislation as a whole. See DiProspero v. Penn, 183 N.J. 477, 492 (2005).

 

There are no disputed facts here. ARI Mutual recognizes its responsibility to reimburse AIG for the $15,000 PIP medical expense benefit provided in Harris’s basic automobile insurance policy pursuant to N.J.S.A. 39:6A–9.1. ARI Mutual understandably objects to paying more simply because of AIG’s initial mistake and subsequent unilateral settlement with Davis.

 

While acknowledging its error, AIG argues that ARI Mutual nevertheless should be responsible for reimbursing PIP medical expense amounts in excess of the basic automobile insurance policy limit because if AIG had hewed to the $15,000 limit, ARI Mutual would have been exposed to Davis’s claim for the difference as part of the personal injury action. That may theoretically be true, but we are not engaged in an equitable redistribution divorced from the Legislature’s intent. Instead, we are involved with a purely statutory reimbursement scheme between insurers, and Davis’s purported rights vis-à-vis ARI Mutual are not relevant to our determination.

 

*4 ARI Mutual relies on N.J.S.A. 39:6A–9.1’s phrase “pursuant to” in arguing that reimbursement over the $15,000 policy limit is not available to AIG because the PIP medical expense benefits paid to Davis were not those pursuant to the amount in the actual policy. We agree.

 

AIG’s payment of up to $250,000 was not made within the confines of the basic automobile insurance policy covering Davis. Instead, it was an ad hoc adjustment that suited AIG’s litigation strategy. Hence, the payment was not made “pursuant to” or “in accordance with” the PIP reimbursement statute. See N.J.S.A. 39:6A–9.1. The payment was made because AIG was potentially estopped from doing otherwise after providing representations to Davis for up to $250,000 in PIP benefits, upon which Davis reasonably relied. Furthermore, ARI Mutual was not involved in perpetrating the mistake; it was an operational gaffe made by AIG alone in the administration of its insurance business. Thus, the court “should not abruptly increase the exposure of [ARI Mutual]” to compensate AIG for its own error. IFA Ins. Co., supra, 270 N.J.Super. at 626.

 

The legislative intent of PIP benefits is clear. They enable persons injured on our streets and highways to get medical treatment and payment quickly, within the coverage limits designated in the policy, and without regard to fault. Furthermore, the Legislature ensured that carriers could obtain reimbursement from a tortfeasor’s insurer directly, to facilitate cost containment, rather than endure a cumbersome subrogation process. Nowhere does the legislation indicate that a tortfeasor’s insurer should also be exposed to liability due to one-sided errors made by the injured’s insurer. While reimbursement from a tortfeasor is provided for by N.J.S.A. 39:6A–9.1, it is limited to the PIP limit set forth in the policy covering the accident victim. “For a court to presume that the Legislature intended something other than that which it clearly and plainly expressed in plain language would be tantamount to rewriting the Legislature’s written enactment by judicial fiat.” Wise v. Marienski, 425 N.J.Super. 110, 120–21 (Law Div.2011).

 

AIG argues that ARI Mutual is reaping a windfall if it does not provide the reimbursement AIG seeks. However, the excess benefits paid resulted from AIG’s unilateral mistake and self-motivated settlement with Davis. It was a circumstance that ARI Mutual had no hand in producing. ARI can hardly be said to be reaping a windfall. From a public policy standpoint, allowing AIG to recover the amount in question from ARI Mutual would condone sloppiness by insurers and increase the cost of insurance in direct contravention of our no fault laws.

 

Reversed.