ANGELA MARQUINA v. JEFFREY CRUZ, EE CRUZ & COMPANY

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4912-04T14912-04T1

ANGELA MARQUINA,

Plaintiff-Appellant,

v.

JEFFREY CRUZ, EE CRUZ & COMPANY,

Defendants-Respondents,

and

HELEN J. MARQUINA AND

JUANA RAMIREZ,

Defendants.

 

Argued March 22, 2006 - Decided April 5, 2006

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, MON-L-2926-03.

Wade F. Suthard argued the cause for appellant (Rispoli, Borneo & Suthard, attorneys; Mr. Suthard, on the brief).

Jessica D. Ruch argued the cause for respondents (Thomas Dempster, III, attorney; Joseph M. Assan, on the brief).

PER CURIAM

Plaintiff was injured when the car in which she was a passenger was in an accident with a sport utility vehicle. The issue on appeal is whether a sport utility vehicle, in this case a GMC Yukon, qualifies as an automobile pursuant to N.J.S.A. 39:6A-2a, so as to make plaintiff subject to the verbal threshold provision of the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 36:6A-1.1 to -35. The motion judge concluded that it did so qualify and we agree.

The facts are not in dispute. Plaintiff was a passenger in a vehicle being driven by her sister when it was involved in an intersectional motor vehicle accident on January 24, 2002 in Old Bridge with a vehicle driven by defendant Jeffrey Cruz. Cruz's wife was a passenger in his vehicle at the time.

Plaintiff was covered by an automobile insurance policy that contained a verbal threshold limitation. Cruz was driving a GMC Yukon owned by a corporation, defendant EE Cruz & Company, Inc. The vehicle is a private passenger automobile. While it was registered as a company vehicle, it did not have commercial license plates, and was insured by a policy of insurance that provided for personal injury protection benefits.

Cruz & Company is a construction company that employs 225 people. The company owns approximately seventy-five vehicles; all are used for business purposes and are also available for the employees' personal use. Cruz garaged the Yukon at his residence. At the time of the accident, he was driving the vehicle on a personal errand.

Following defendant's initial verbal threshold motion on January 7, 2005, the court concluded that plaintiff failed to demonstrate objective evidence of a permanent injury so as to qualify for non-economic damages under N.J.S.A. 39:6A-8a. Plaintiff has not appealed from the order memorializing that decision.

The order that is the subject of this appeal was entered on April 8, 2005. The issue addressed by the trial court at that time was plaintiff's claim that the verbal threshold was not applicable to this accident because the GMC Yukon operated by defendant did not meet the definition of "automobile" in N.J.S.A. 39:6A-2a. Judge Cavanaugh, in a lengthy oral decision, found that the vehicle qualified as an automobile as defined in that statute. He made the following findings and conclusions:

Mr. Cruz and his company is a construction company employing 225 people involved in heavy construction. It owns about 75 motor vehicles. All used for business purposes but are also available to employees for personal use.

The company owns both of the vehicles available to Jeffrey Cruz. A Mercedes Benz for his wife primarily and the Yukon which was involved in the accident. The Yukon is used by Mr. Cruz in connection with work but there is very little definition provided as to how it is used on the job site other than a means for transportation by Mr. Cruz.

From job site to job site or on the job site. There is no presentation of a factual background that would establish that this particular vehicle is used in the course of construction to transport materials from place to place or to carry concrete and/or some sort of construction material around.

There is no argument presented that Mr. Cruz did not have use of this vehicle at home for personal reasons. Nor that Mrs. Cruz did not have the vehicle available to her on occasion for use. It is important to note that the Yukon is kept at home. Does not remain on the job site. And primarily it is used as transportation as with any vehicle in connection with Mr. Cruz's duties on the job.

I will also note that clearly at the time of the accident Mr. Cruz was on a personal errand. I believe banking. And the accident had absolutely nothing to do with anything relative to a job site situation. He was not at work. He was not going to work. He was not coming from work. He was using it for a personal reason.

. . . .

[Cruz testified at his deposition that the vehicle is] "registered as a company vehicle but it doesn't have commercial plates on it. So that it's insured through the company but it doesn't have commercial plates."

. . . .

But to just go a step further, there is no reference anywhere in the deposition nor is there any reference provided by the resisting party . . . that there is testimony that Mr. Cruz used the vehicle while on the job. In other words, in furtherance of carrying construction material, et cetera.

. . . .

"Automobile means a private passenger automobile of a private passenger or station wagon type that is owned or hired and is neither used as public or livery conveyance for passengers nor rented to others with a driver.

And a motor vehicle with a pickup body, a delivery sedan, a van or a panel truck or a camper type vehicle used for recreational purposes owned by an individual or by husband and wife who are residents of the same household not customarily used in the occupation, profession or business of the insured other than farming or ranching." [N.J.S.A. 39:6A-2a.]

. . . .

In other words, clearly the statutory mandate seems to encourage the inclusion of automobiles. Here, the motor vehicle allegedly must have either a pickup body, be a delivery sedan, a van or a panel truck or camper used for business purposes. . . .

A GMC Yukon is a vehicle commonly referred to as a sports utility vehicle. In fact, a Yukon would be considered a large sports utility vehicle when compared to some if its less rugged competitors.

Therefore, a Yukon does not fit into the clause, the first clause of the definition of an automobile. It would only fit into the second clause and then because it is utilized in connection with business purposes it would be exempted. Now, from my position there are several flaws in that argument.

First of all it is registered as a private passenger car, vehicle I should say. And to make the argument that a sports utility vehicle would not qualify as an automobile is borderline ludicrous.

I don't specifically know the number, but if counsel's position is that sports utility vehicles somehow do not qualify as automobiles, then I dare say maybe 30 percent of the drivers on the road today would be disqualified from PIP coverage since there is an enormous usage of sports utility vehicles throughout the country and particularly throughout the State.

If the position is that a sports utility vehicle would qualify as an automobile but not if you use it for business purposes then the resisting party would be suggesting that anyone who drives a sports utility vehicle to and from their employment and I believe he confirmed this at oral argument, that this would be his position, would be disqualified from PIP coverage.

Again, I find that position to be borderline ludicrous.

. . . .

A private passenger vehicle not registered commercial. Used for personal benefit. Being used for personal benefit at the time. Available to his wife. No proof that it's used on the job in the customary circumstance of construction work, only for transportation.

So, when you take all those things into account, I reject the plaintiff's position for the reasons I put on the record.

We agree with Judge Cavanaugh's thorough analysis. Ownership of a vehicle is not dispositive as to whether it qualifies as an automobile under N.J.S.A. 39:6A-2a; "the statute refers to a 'type' of vehicle, and then excludes specific vehicles based on their use." N.J. Mfrs. Ins. Co. v. Hardy, 178 N.J. 327, 334 (2004).

Here, no genuine dispute exists that a GMC Yukon is a passenger-type vehicle. The vehicle did not have commercial license plates, was garaged at Cruz's house, and at the time of the accident was being used for a personal errand. It is not exempted from coverage of the statute, such as vehicles that are "used as a public or livery conveyance for passengers" or "rented to others with a driver." Ibid. (quoting N.J.S.A. 39:6A-2a). It does not have a "pickup body," nor is it "a delivery sedan, a van, or a panel truck or a camper type vehicle used for recreational purposes." N.J.S.A. 39:6A-2a. It unambiguously qualifies as an automobile under N.J.S.A. 39:6A-2a; see generally Giordano v. Allstate Ins. Co., 260 N.J. Super. 329, 330, 332 (App. Div. 1992) (minivan used as demonstration vehicle equipped for transporting up to seven passengers considered private passenger automobile and not cargo transporting van); Wagner v. Transamerica Ins. Co., 167 N.J. Super. 25, 29-32 (App. Div.) (car used by dealership salesman as demonstration vehicle considered to be an automobile for purposes of PIP coverage), certif. denied, 81 N.J. 60 (1979); CSC Ins. Servs. v. Graves, 293 N.J. Super. 244, 252 (Law Div. 1996) (passenger van used as part of daycare service qualifies as an automobile for PIP coverage because van generally not accessible to public for hire); Favell v. Hernandez, 261 N.J. Super. 348, 351-52 (Law Div. 1992) (station wagon-type automobile, not used as public or livery conveyance for passengers, considered automobile pursuant to N.J.S.A. 39:6A-2a, even though it was registered commercially).

Affirmed.

 

Plaintiff did not provide the trial court or this court with the vehicle's specifications.

(continued)

(continued)

8

A-4912-04T1

April 5, 2006

 


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