                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0958-16T4

RAYMOND NESBY and
LAUREN NESBY,
                                          APPROVED FOR PUBLICATION
        Plaintiffs-Appellants,                 November 18, 2019

v.                                           APPELLATE DIVISION


SHERYL FLEURMOND, CHRIS
R. DECARO, XEROX RECOVERY
SERVICES,1 and HORIZON BLUE
CROSS BLUE SHIELD OF NEW
JERSEY,2

        Defendants,

and

GOVERNMENT EMPLOYEES
INSURANCE COMPANY3
and AAA MID-ATLANTIC
INSURANCE COMPANY OF
NEW JERSEY,4

        Defendants-Respondents.


1
     Improperly pled as Zerox Recovery Services.
2
     Improperly pled as Blue Cross & Blue Shield of New Jersey.
3
     Improperly pled as GEICO.
4
     Improperly pled as AAA Mid-Atlantic Insurance Co.
            Argued October 3, 2019 – Decided November 18, 2019

            Before Judges Fisher, Gilson and Rose.

            On appeal from the Superior Court of New Jersey, Law
            Division, Middlesex County, Docket No. L-1923-16.

            John J. Hopkins, III, argued the cause for appellants.

            Donald M. Barone argued the cause for respondent
            AAA Mid-Atlantic Insurance Company of New Jersey
            (Barone Mooney Newman & Foreman, attorneys;
            Donald M. Barone on the brief).

            Mario John Delano argued the cause for respondent
            Government     Employees      Insurance Company
            (Campbell Foley Delano & Adams LLC, attorneys;
            Mario John Delano, on the briefs).

      The opinion of the court was delivered by

ROSE, J.A.D.

      Plaintiff Raymond Nesby 5 appeals from Law Division orders granting

summary judgment to defendants Government Employers Insurance Company

(GEICO) and AAA Mid-Atlantic Insurance Company of New Jersey (AAA

MAIC), dismissing his complaint against the insurers. Because we conclude




5
  Lauren Nesby is a co-plaintiff in this case only because of her per quod claim
deriving from her spouse's injury, therefore references to "plaintiff" pertain
solely to Raymond Nesby.
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                                       2
plaintiff lacked any basis to assert a claim against GEICO or AAA MAIC, we

affirm.

      The facts, viewed most favorably to plaintiff, Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 540 (1995), are essentially undisputed. In October

2014, plaintiff was injured in an automobile accident when the car he was

driving was struck from behind by the vehicle driven by defendant Sheryl

Fleurmond, owned by defendant Chris R. Decaro, and insured by Progressive

Garden State Insurance Company (Progressive). Fleurmond neither owned a

vehicle nor had her own automobile insurance policy; 6 she lived with her mother

and sister.7 GEICO issued a policy to Fleurmond's sister and AAA MAIC issued

a policy to her mother. 8 Neither vehicle was involved in the accident.




6
  Citing the police report, plaintiff claims Fleurmond was listed as a driver on
Decaro's policy. Plaintiff did not include the Progressive policy in his appendix
on appeal.
7
  AAA MAIC does not concede that Fleurmond lived with its insured at the time
of the accident; Fleurmond's residency is not material to the resolution of the
issues presented on appeal.
8
  Neither policy was included in plaintiff's appendix on appeal. It is undisputed
that Fleurmond was not listed as an insured on either policy. Plaintiff and AAA
MAIC included a declaration page of that carrier's insured, listing Fl eurmond's
mother as a driver.
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                                       3
       Plaintiff claims his medical costs exceed $400,000 for the injuries he

suffered as a result of the collision. After his $15,000 personal injury protection

(PIP) benefits were exhausted, the remainder of plaintiff's medical bills were

paid by his personal health insurance carrier. Plaintiff then tendered a claim to

Progressive, which offered him the full $25,000 policy limit of Decaro's policy.

In exchange, plaintiff agreed to release Fleurmond and Decaro

             from any and all claims, actions, causes of action[],
             demands, rights, damages, costs, property damage, loss
             of wages, expenses, hospital, medical and nursing
             expenses, accrued or unaccrued claims for loss of
             consortium, loss of support or affection, loss of society
             and companionship on account of in any way growing
             out of, any and all known and unknown personal
             injuries and damages resulting from [the present]
             automobile accident . . . .

Sometime before signing the release, plaintiff's counsel sent what he describes

as "a Longworth letter"9 to GEICO and AAA MAIC, notifying the carriers of

Progressive's offer.   According to plaintiff, neither carrier objected to the

proposed settlement; both carriers later denied coverage.




9
    Longworth v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988).


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                                        4
      Plaintiff then filed a complaint 10 against Fleurmond and Decaro, seeking

damages for injuries he sustained in the accident. Although plaintiff did not

specifically name GEICO or AAA MAIC as defendants, the fourth count of his

complaint sought to "[c]ompel [i]nsurance [c]overage" from both carriers. Prior

to the commencement of discovery, plaintiff moved for declaratory judgment

against GEICO and AAA MAIC, seeking coverage under the policies issued to

Fleurmond's sister and mother. GEICO and AAA MAIC cross-moved for the

same relief. Following oral argument, the motion judge reserved decision,

eventually denying plaintiff's motion and granting defendants' cross-motions for

reasons expressed in a written opinion. 11

      Recognizing additional facts were unnecessary to the determination of

defendants' motions, the judge found plaintiff settled his claims with Fleurmond

and Decaro, and he had no relationship with GEICO and AAA MAIC, which

would otherwise entitle him to coverage under their policies. Because plaintiff

was not seeking underinsured motorist (UIM) coverage from his insurance


10
   After venue was transferred from Monmouth County for reasons that are not
pertinent to this appeal, plaintiff filed an amended complaint to reflect venue i n
Middlesex County, but it was otherwise identical to his initial complaint.
11
   The judge granted plaintiff's motion to amend the complaint to add as parties
his personal health insurance carrier, Horizon Blue Cross Blue Shield of New
Jersey and its subrogation representative, Xerox Recovery Services.
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                                        5
carriers, the judge determined Longworth was "inapplicable and distinguishable

from the facts here." This appeal followed.

      On appeal, plaintiff raises overlapping arguments, claiming he is entitled

to PIP coverage and bodily injury benefits under the GEICO and AAA MAIC

policies.   More particularly, he presents the following points for our

consideration:

            I.   The Trial Judge Erred in Granting Summary
            Judgment Prior to the End Of Discovery Without
            Considering Extrinsic Evidence.

            II.    . . . Plaintiff Was Injured in an Automobile
            Accident In Which Multiple Insurance Policies Are
            Involved and this Court must Determine Which PIP
            Policies Cover the Medical Treatment for the Injuries
            in this Accident.

            III. It Is Appropriate for the Court [to] Make a
            Declaratory Judgment Determination as to Which
            Insurance Policies Cover the Bodily Injuries in this
            Matter.

            IV. . . . Plaintiff[] Settled [His] Claim with the First
            Carrier Pursuant to Longworth and Now May Proceed
            Against the Other Two Carriers.

            V.   . . . Plaintiff Exceeded His Insurance P[IP]
            Coverage So the P[IP] of the Additional Policies must
            Cover the Excess.[12]

12
   Plaintiff filed a supplemental letter pursuant to Rule 2:6-11(d), bringing to
our attention recent legislation amending N.J.S.A. 39:6A-12, which "permits a


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                                       6
      We review a grant of summary judgment de novo, applying the same

standard as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire

Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016); Brill, 142 N.J. at 539-40.

Summary judgment is appropriate where the record demonstrates "no genuine

issue as to any material fact challenged and . . . the moving party is entitled to a

judgment or order as a matter of law." R. 4:46-2(c); Henry v. N.J. Dep't of

Human Servs., 204 N.J. 320, 329 (2010); Brill, 142 N.J. at 528-29. Where, as

here, "there is no genuine issue of material fact, we must then decide whether

the trial court correctly interpreted the law." DepoLink Court Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (internal

quotation marks and citation omitted). We therefore accord no deference to the

motion judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463,

478 (2013).

      Distilled to its essence, the issue presented in this appeal is whether

plaintiff can somehow seek PIP coverage for his unpaid medical expenses under


party injured in an automobile accident to recover, as part of the recovery of
uncompensated economic loss, all unreimbursed medical expenses not covered
by the . . . [PIP] limits applicable to the injured party and sustained by the injured
party." Sponsor's Statement to S.B. 3963 1 (L. 2019, c. 245, § 2). Because the
amendment was not effective until August 1, 2019, it has no bearing on our
resolution of the present appeal. We therefore decline to decide what, if any ,
application the amendment has to these unique circumstances.
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                                          7
policies issued by GEICO and AAA MAIC to the tortfeasor's resident relatives,

covering vehicles that were not involved in the accident – after plaintiff settled

any and all claims arising from the accident with the tortfeasor. We conclude

none of plaintiff's attempts to extend well-settled principles of insurance law is

availing.

      We start with plaintiff's claims for PIP coverage under the GEICO and

AAA MAIC policies. As our Supreme Court has recognized:

            The Legislature provided for PIP benefits as part of
            New Jersey's no-fault compulsory automobile-
            insurance system in the New Jersey Automobile
            Reparation Reform Act, N.J.S.A. 39:6A-1 to -35 . . . .
            Stated generally, the benefits include payment of
            medical expenses, without regard to fault, for the
            named insured and resident members of his or her
            family, others occupying a vehicle of the named
            insured, or pedestrians injured in an automobile
            accident.

            [Palisades Safety & Ins. Ass'n v. Bastien, 175 N.J. 144,
            147-48 (2003) (emphasis added) (citation omitted).]

Clearly, plaintiff was not an insured under the GEICO or AAA MAIC policies,

did not live with either insured and was not driving a vehicle insured under either

policy. Because he does not fall within any of those categories – that might

otherwise entitle him to PIP coverage – plaintiff is not entitled to PIP benefits

under either the GEICO or AAA MAIC policy.


                                                                           A-0958-16T4
                                        8
      Accordingly, we are not persuaded by plaintiff's ancillary argument that

New Jersey permits "stacking of policies" for PIP benefits. On the contrary,

N.J.S.A. 39:6A-4.2 expressly prohibits an insured from recovering PIP benefits

from multiple policies, providing, in pertinent part:

            the personal injury protection coverage of the named
            insured shall be the primary coverage for the named
            insured and any resident relative in the named insured's
            household who is not a named insured under an
            automobile insurance policy of his own. No person
            shall recover personal injury protection benefits under
            more than one automobile insurance policy for injuries
            sustained in any one accident.

            [(Emphasis added).]

      Plaintiff's reliance on Ingersoll v. Aetna Cas. & Sur. Co., 138 N.J. 236

(1994), is misplaced. In Ingersoll, the plaintiff motorcyclist was ineligible for

PIP benefits. Id. at 238. Instead, the Court determined the statutory prohibition

against stacking PIP benefits did not foreclose the plaintiff's recovery for

extended medical expenses under two policies. Id. at 239. In doing so, the Court

expressly stated "[t]he No-Fault Law prohibits the stacking of PIP benefits." Id.

at 238.

      We are equally unpersuaded by plaintiff's reliance on Gibson v.

Callaghan, 158 N.J. 662 (1999), to support his contention that "a policy in the

driver's household will cover the driver" where the tortfeasor driver is uninsured.

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                                        9
We simply note the issue in Gibson involved the interpretation of "a clause in a

homeowners' liability insurance policy that provide[d] a defense and

indemnification to relatives of the named insured who are residents of the named

insured's household." Id. at 665. That issue could not be further from the issues

presented in this appeal.

      Finally, even if plaintiff could have sought coverage under the GEICO or

AAA MAIC policies, he settled his claims with Fleurmond (and Decaro), fully

releasing the tortfeasor (and owner) of the vehicle from "any and all claims"

arising from the accident. See In re Terminated Aetna Agents, 248 N.J. Super.

255, 263 (App. Div. 1990) ("A general release ordinarily covers all claims and

demands due at the time of its execution and within the contemplation of the

parties."). Where a release's language refers to "any and all claims," courts do

not generally permit exceptions. Isetts v. Borough of Roseland, 364 N.J. Super.

247, 255-56 (App. Div. 2003) ("In parsing the release's critical passage, we

certainly agree that the phrase 'any and all' allows for no exception . . . .").

Because the release did not preserve plaintiff's right to proceed against either

GEICO or AAA MAIC, see Deblon v. Beaton, 103 N.J. Super. 345, 349 (Law

Div. 1968), he cannot litigate his settled claims against the insurers.




                                                                          A-0958-16T4
                                       10
      Plaintiff fares no better with his misplaced reliance on Longworth, in

which we held that, in order to protect the UIM carrier's subrogation interest,

"an insured receiving an acceptable settlement offer from the tortfeasor should

notify his UIM carrier. The carrier may then promptly offer its insured that sum

in exchange for assignment to it by the insured of the claim against the

tortfeasor." 223 N.J. Super. at 194; see also Rutgers Cas. Ins. Co. v. Vassas,

139 N.J. 163, 174 (1995). As plaintiff acknowledges, he is not seeking UIM

coverage from GEICO or AAA MAIC. As such, any reservation of rights under

Longworth provides him no relief here.          Instead, plaintiff sought excess

insurance under the GEICO and AAA MAIC policies. But, as we have stated,

plaintiff released the tortfeasor without a reservation of rights clause protecting

his claims against those insurers.

      In sum, plaintiff was not a named insured under the GEICO or AAA

MAIC policies, did not reside with the named insureds, did not occupy a vehicle

insured under those policies, and released the tortfeasor from any and all claims

arising from the accident. Accordingly, his claims against the insurers fail.

      Affirmed.




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                                       11
