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Gary Blaustein did some unusual preparation before his New Jersey Supreme Court argument on Wednesday. The Union, N.J., sole practitioner did a Lexis-Nexis search on whether his father or grandfather — who started lawyering in New Jersey in the 1930s — had argued in the state’s highest court. They hadn’t, but it was worth the wait. Of the 10 appeals heard last Tuesday and Wednesday, none seemed to capture the sympathy of the justices more than the one Blaustein argued on behalf of the plaintiff in Zacarias v. Allstate Insurance Company, A-1-00. Joao Zacarias bought an Allstate liability policy on his 20-foot outboard, but when his wife was hurt in a mishap Allstate denied coverage on two grounds. The policy didn’t cover injuries to people insured by the policy. And Zacarias’ wife, like Zacarias himself, was one of the named insureds. That was good enough for a 2-1 appeals court majority that affirmed the summary dismissal of the wife’s suit against the husband. But several justices, armed with the policy itself and a sharp dissent by Appellate Judge Sylvia Pressler, suggested the document was fatally flawed. Put simply, it appeared to have violated the customer’s reasonable expectation of what was covered, mostly because of confusing language and format. To understand this policy, Justice Gary Stein said, “You’ve got to be a Philadelphia lawyer.” He added later, “Joe Six Pack who picks up this policy hasn’t got a prayer.” To Stein and a few other justices, the policy seemed to suffer from specific flaws. According to testimony, the agent who sold the policy not only didn’t tell Zacarias that his wife was insured for her acts, but not her injuries, he didn’t know it himself. And, as Justice Virginia Long pointed out, the fact that the wife was a co-insured — and therefore not covered for her own injuries — was not clearly spelled out in the policy in language the average person would take time to read. The typical small-boat owner would probably assume that anyone “insured” by a policy was covered, as are insureds in automobile policies, Long said. “The expectation is, it’s going to be like an automobile policy,” Chief Justice Poritz added. “It would be clear if I read it, maybe, but not to a lay person,” said Justice James Zazzali. The target of the judges’ skepticism, Allstate lawyer John Tinker Jr. of Leary, Bride, Tinker & Moran in Cedar Knolls, N.J., fought back gallantly and tried to score a couple of points, too. First, he argued that the boat owner’s policy was very much like a homeowner’s policy, full of exclusions that the purchaser should be required to read. If the court invalidates this boat owner’s policy, Tinker said, “You have to invalidate all the insurers’ homeowners’ policies.” He said that if courts required Allstate to do what Pressler suggested — make the exclusions clear and bold on the declaration page and repeat various definitions throughout — the document would be even more confusing to the policy purchaser, he argued.

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