VINCENT CANTALE v. NATIONAL CONTINENTAL/ PROGRESSIVE INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-22482248-05T1

VINCENT CANTALE,

Plaintiff-Appellant,

v.

NATIONAL CONTINENTAL/

PROGRESSIVE INSURANCE COMPANY,

Defendant-Respondent.

 

Submitted July 26, 2006 - Decided August 18, 2006

Before Judges Wecker and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1694-05.

Miller, Meyerson, Schwartz & Corbo, attorneys for appellant (John R. Schwartz, of counsel and on the brief).

Decker & Magaw, attorneys for respondent (Erin E. McLaughlin, on the brief).

PER CURIAM

Plaintiff Vincent Cantale appeals from the December 2, 2005 order of the Law Division granting summary judgment in favor of defendant National Continental/Progressive Insurance Company. We affirm.

The following facts, which are undisputed, are derived from the record on appeal. Plaintiff is the owner of Goodfellows Pizza and Restaurant in Keansburg. Although he owns vehicles, he does not have a license to drive and so he relies on others to drive those vehicles while he is a passenger. On November 18, 2001, he went in one of his vehicles to a business in Jersey City, which he described as "a big supermarket for business people . . . business people go over there shopping for food and bring to their stores . . . It's like a restaurant depot." According to plaintiff, the parking lot of the store is large, accommodating approximately 100 cars. The individual who was driving him that day parked the Goodfellows van some distance from the entrance to the store. After the van was parked, plaintiff got out, intending to go into the business and make his purchases before returning to the Goodfellows van. He was walking toward the business entrance and was approximately fifteen to twenty feet away from the Goodfellows van when he was hit by another vehicle in the parking lot.

Plaintiff's litigation against the driver of the other vehicle was settled on October 14, 2004 in exchange for payment to him of $14,000. Thereafter, plaintiff filed his complaint against defendant, seeking coverage under a commercial auto policy of insurance that he had purchased from defendant. That policy identified Goodfellows as the named insured and included underinsured motorist (UIM) coverage in the amount of $300,000. More specifically, the UIM provision includes the following language relating to coverage:

B. Who is An Insured

. . . .

Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto".

The policy further defines the term "occupying" as follows:

F. Additional Definitions

As used in this endorsement:

. . . .

3. "Occupying" means in, upon, getting in, on, out or off.

Defendant moved for summary judgment, asserting that the incident in which plaintiff was injured did not occur in circumstances that met the definition in the policy of one who is "occupying" the covered vehicle. The judge agreed, concluding that because plaintiff had left the vehicle, was walking away from it toward the store where he planned to shop, and was a significant distance away when he was injured, that he did not meet the policy's definition of "occupying."

On appeal, plaintiff urges us to reverse, arguing that the judge failed to consider and correctly apply the reasoning of published decisions, which have interpreted the "occupying" language more broadly. Our review and consideration of all of the applicable precedents compels us to reject plaintiff's analysis and to affirm.

We note that on appeal from an order granting summary judgment, we apply the same standard that governs the analysis by the motion judge. Prudential Property & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); see Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). We therefore must first determine whether, giving the non-moving party the benefit of all reasonable inferences, the movant has demonstrated that there are no genuine issues of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We then analyze whether the motion judge's application of the law was correct. See Prudential, supra, 307 N.J. Super. at 167. In carrying out our review, we owe no deference to the interpretation of the motion judge on matters of law. See Manalapan Realty, L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995).

More particularly, we here address the meaning of language in an insurance policy. Our Supreme Court has previously held that "[i]n the absence of any ambiguity, courts 'should not write for the insured a better policy of insurance than the one purchased.'" Gibson v. Callaghan, 158 N.J. 662, 670 (1999)(quoting Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990)). Furthermore, "[i]f the policy language is clear, the policy should be interpreted as written." Nav-Its, Inc. v. Selective Ins. Co., 183 N.J. 110, 118 (2005)(citing President v. Jenkins, 180 N.J. 550, 562 (2004)).

The specific language in issue here, namely, the meaning of the defined term "occupying," has been addressed by our Supreme Court, and by this court, in several decisions, each cited by both plaintiff and defendant in this appeal as support for their opposite interpretations and conclusions. The Supreme Court has noted that there is "no hard and fast rule" utilized to interpret the term "occupying" as it is used in insurance policies. Mondelli v. State Farm Mutual Auto Ins. Co., 102 N.J. 167, 172 (1986). Rather a "case-by-case analysis" of the facts in each case is necessary for a court to decide the coverage issues. Ibid. In Mondelli, the policy definition of "occupying" was no different from the language in issue here. The analysis turned on the Court's construction of the word "upon" in the definition of "occupying." The Court concluded that one who was leaning on the vehicle while conversing with the driver fell within the definition regardless of whether he also could demonstrate that he had or intended to "immediately use" the vehicle. Id. at 171-72. In construing the term "upon" as a part of the definition of "occupying," however, we note that the Court cautioned against finding coverage based on a "'[m]ere coincidental connection between the accident and some touching of the car.'" Id. at 172 (citation omitted).

More recently, in Torres v. Travelers Indemnity Co., 171 N.J. 147 (2002), the Court established the "substantial nexus" test to guide our analysis of the meaning of "occupying" a covered vehicle. Id. at 149. There, an employee of a surgical supply company drove his own company's vehicle to look for a UPS van, which he believed had failed to deliver a package. Id. at 148. The employee located the UPS van and was injured after he left it to walk back to his own company's vehicle. Ibid. The Court concluded that the employee was "occupying" his company's vehicle for coverage purposes. Ibid. In so holding, however, the Court reaffirmed its prior admonitions, set forth in its Mondelli decision, about the insufficiency of a merely coincidental relationship to a covered vehicle. Id. at 149. Moreover, the Court reiterated that it is plaintiff's burden to demonstrate "a substantial nexus between the insured vehicle and the injury sustained." Ibid.

Our analysis of the meaning and scope of this policy language has also led us to conclude that it is possible for an individual who is outside of a vehicle to demonstrate that he or she was, nevertheless, within the policy's "occupying" definition. See De Almeida v. General Accident Ins. Co., 314 N.J. Super. 312, 317 (App. Div.), certif. denied, 157 N.J. 541 (1998). In De Almeida we concluded that an employee at a Parkway construction site who stepped off his truck to retrieve a construction cone and return it to the vehicle and who was fatally injured while doing so was "occupying" the vehicle. We reasoned that "in addition to decedent's contemplated use of the vehicle as a passenger upon completion of his ongoing task, he was actually loading the covered vehicle while it was on the roadway at the time of the accident." Id. at 316. We further noted that decedent "never relinquished his 'occupancy' status. He was retrieving the cones and loading the truck as part of his work efforts which involved utilization and occupancy of the vehicle." Id. at 317. Significantly, in De Almeida, we distinguished Aversano v. Atlantic Employees Ins. Co., 290 N.J. Super. 570 (App. Div. 1996), aff'd o.b., 151 N.J. 490 (1997), a seemingly contrary decision related to interpretation of statutory language defining entitlement to PIP benefits. Although the statutory test differs somewhat from the policy definition of "occupying," our basis for distinguishing Aversano's conclusion that the injury was not covered was that in Aversano the injury occurred after the individual had left the insured car in a parking lot and just as he was returning to the car. We implied, by contrasting the facts of Aversano with the facts of De Almeida, that leaving the car in a parking lot constituted a "relinquish[ment of] . . . 'occupancy' status." See De Almeida, supra, 314 N.J. Super. at 317.

Leaving the vehicle, per se, does not equate with a loss of "occupancy" status. We have reasoned that a motorist who exits a vehicle to aid another driver after an accident and is injured while at the roadside falls within the definition of "occupying" the vehicle for coverage purposes. See Macchi v. Connecticut Gen. Ins. Co., 354 N.J. Super. 64 (App. Div.), certif. denied, 175 N.J. 79 (2002). Like the injured party in De Almeida, such an individual has not sufficiently relinquished the occupancy of the vehicle to fall outside of the substantial nexus rule. Macchi, supra, 354 N.J. Super. at 76.

The facts and the analysis of each of these several precedents, however, are unlike the undisputed facts in the record before us on appeal. In each of the cases where the injured person was found to be occupying the vehicle, that person had momentarily left the vehicle, or was walking from one vehicle to another. In each, the injury itself was closely connected with the vehicle and the use of the vehicle.

Here, however, we note several distinctions that lead us to conclude that plaintiff was not "occupying" the vehicle when he was injured. First, plaintiff's use of the vehicle to arrive at the place where he was injured was coincidental. He might as easily have gone to the store, and been injured in the parking lot, through any number of means other than the covered vehicle. Nothing about his having occupied the vehicle was directly related to the incident in which he was injured.

Second, there was nothing momentary or temporary about his having left the vehicle. On the contrary, here plaintiff had parked his vehicle and was on his way to conduct business in a commercial establishment. Unlike each of the precedents on which he relies, there is nothing in the record to suggest that his departure from his vehicle was expected to be so brief that he occupied the vehicle continuously.

Third, there was no substantial nexus between the vehicle and plaintiff's accident in the sense required by the decisions on which the parties rely. He was not leaning on it when he was struck, see Mondelli, supra, 102 N.J. at 172; he was not walking from one vehicle to another, always in near physical proximity to the covered vehicle, see Torres, supra, 171 N.J. at 148; he was not stepping on and off the vehicle as he retrieved construction cones, see De Almeida, supra, 314 N.J. Super. at 316; he was not standing near the vehicle, having left it only because of the emergency related to the earlier accident. See Macchi, supra, 354 N.J. Super. at 76. On the contrary, he had parked the vehicle and left it for the purpose of conducting business in a commercial establishment.

In essence, plaintiff's argument is that he should be deemed to still be "occupying" the vehicle simply because he had arrived at a location in that vehicle and was walking in the parking lot when he was injured. Using his logic, however, every accident that follows the act of driving to a location, parking and proceeding on one's way would fall within the definition of "occupying" the vehicle one used to arrive there. In light of the Court's admonition, however, that we avoid stretching the definition to include accidents that are "merely coincidental" to the use of the vehicle, see Mondelli, supra, 102 N.J. at 172, and in light of the Court's more recent adoption of the requirement that plaintiff prove a "substantial nexus" between the accident and the accident and actual occupancy of the vehicle, see Torres, supra, 171 N.J. at 149, we conclude that plaintiff's proofs are insufficient to meet the policy's definition of "occupying" as is required for coverage under the policy.

Affirmed.

 

Defendant's motion first asserted that plaintiff was not a named insured and therefore was not covered under the commercial policy. Although the judge denied defendant's motion to the extent that it rested on that argument, defendant has not filed a cross-appeal and has not argued on appeal that the judge's decision that plaintiff qualified, in general, for coverage was in error. We therefore need not address that aspect of his decision, but need only analyze the judge's decision favorable to defendant on the alternate ground, which is the focus of plaintiff's appeal.

(continued)

(continued)

11

A-2248

 

August 18, 2006