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The New Jersey Appellate Division has ruled that wrongful-death and survivor actions are separate claims for purposes of determining coverage under split-limit liability policies, creating the potential for double recoveries. The judges, in Vassiliu v. Prudential Ins. Co., A-2812-00, adopted the reasoning of the trial court that, under statutory and case law, such claims are “separate causes of action, with differing types and elements of damages for different parties.” As a result, the claims should not be lumped together into a one “per person” limit, Camden County Judge William Cook had ruled. Appellate Judges Erminie Conley, Richard Newman and Philip Carchman simultaneously released a per curiam opinion overturning contrary rulings in two other cases. Reversed were Judge Joseph Visalli of Cape May County, in Ohio Casualty Ins. Co. v. Cafiero, A-737-01, and Judge Marc Baldwin of Burlington County, in Ohio Casualty Ins. Co. v. South, A-942-01, who held that the wrongful-death and survivor claims in those cases triggered only one per-person liability limit. The plaintiff’s lawyer in Vassiliu, Louis DeVoto, a partner with Cherry Hill, N.J.’s Ferrara Rossetti & DeVoto, says he is happy the panel did not opt for a policy-by-policy analysis. Daniel Pomeroy, the lawyer for Prudential in Vassiliu, calls the ruling “a departure [from established law] not only in New Jersey but in the rest of the United States.” The ruling is inconsistent with N.J.S.A. 39:6B-1, which contemplates treating the claims as one for insurance purposes, says Pomeroy, a partner with Morristown’s Mortenson & Pomeroy and author of a treatise on insurance law. The vast majority of other states are also at odds with Cook’s view and in Ohio, the only state whose high court did agree with Cook, the legislature passed a law undoing the ruling, adds Pomeroy. “With every split-limit policy, they’ve kept the premium the same but doubled the exposure,” says Pomeroy. A claim for pain and suffering can be made in almost every wrongful-death case, because like Hristos Vassiliu, who died within minutes, most decedents have some chance to suffer or at least anticipate their death, says Pomeroy. Thomas Vesper, who represents plaintiff Andrew Cafiero in one of the Ohio Casualty cases, agrees that expanded recovery under Vassiliu will impact many wrongful-death actions because it will motivate lawyers to consider survivor claims more closely. In the past, those claims have been “overlooked or underestimated” by the average lawyer, says Vesper, a partner with West Atlantic City, N.J.’s Westmoreland, Vesper & Schwartz. “Clearly, it’s going to require paying out some additional sums,” says John Tiene of the Insurance Council of New Jersey. The council, which did not participate at the appellate level, has not decided whether to be amicus if the case goes up, he adds. The Association of Trial Lawyers of America-New Jersey was amicus on the appeal. Vassiliu and Ohio Casualty were argued jointly on Oct. 23. Defense counsel in both cases say an appeal to the supreme court is likely, though absent a dissent, they will first have to obtain certification.

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