EDWARD TIRPAK v. LYNNE V. NEWBERRY, LINDA A. MAIOLINO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0810-05T20810-05T2

EDWARD TIRPAK,

Plaintiff-Respondent,

v.

LYNNE V. NEWBERRY,

LINDA A. MAIOLINO,

Defendants,

and

GENERAL SECURITY PROPERTY

AND CASUALTY INSURANCE COMPANY,

Defendant-Appellant.

 

Submitted June 6, 2007 - Decided

 
Before Judges Winkelstein and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1683-05.

White and Williams, attorneys for appellant (Robert T. Pindulic and Edward M. Koch, on the brief).

Hoyt & Hoyt, attorneys for respondent (John S. Hoyt, III, on the brief).

Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys for amicus curiae, New Jersey State Policemen's Benevolent Association (Paul L. Kleinbaum, of counsel; Mr. Kleinbaum and Jason E. Sokolowski, on the brief).

PER CURIAM

In this declaratory judgment proceeding, defendant General Security Property and Casualty Insurance Company appeals from a summary judgment declaring plaintiff, Edward Tirpak, eligible for underinsured motorist (UIM) coverage. Because we agree with the trial court that plaintiff was "occupying" a covered vehicle at the time of the accident, he was entitled to UIM coverage under the insurance policy defendant issued to plaintiff's employer. Accordingly, we affirm.

On February 24, 2002, plaintiff, a police officer employed by Parsippany Troy Hills Township, responded to a motor vehicle accident on Route 202. He arrived at the accident scene in a marked patrol car with the emergency lights on; he parked nose-to-nose with a police car that was already there. Leaving the car engine running and the lights on, plaintiff proceeded to the other police car to speak with the officer. Plaintiff said he would take care of the traffic while the other officer handled the accident scene.

Plaintiff then proceeded into the far right lane of the roadway to direct traffic. After directing between eight and twelve vehicles, which took "a few seconds," plaintiff turned to direct the vehicles coming from the opposite direction. Within "a couple of seconds" of turning, plaintiff was hit from behind by an oncoming motorist and was severely injured.

Plaintiff testified that he intended to stop traffic "in the short term," and then return to his squad car to retrieve road flares from the trunk. He had a portable radio with him when he left his vehicle that he could have used for backup if needed; however, the radios were not functioning "completely at the time," and he may have needed to return to his vehicle to call for backup if his portable radio did not work.

General Security issued the Township's commercial automobile liability policy that provided UIM coverage of $5 million per accident. The policy covered persons "occupying" an insured vehicle; and defined "occupying" as, "in, upon, getting in, on, out or off." After settling with the driver and owner of the vehicle that struck him, plaintiff sought UIM benefits from defendant under the policy. Defendant denied coverage on the grounds that plaintiff did not "occupy" the vehicle in that there was no substantial nexus between plaintiff and his police car at the time of the accident. On cross-motions for summary judgment, Judge Langlois rejected that argument, finding,

[Plaintiff] was . . . within a very close proximity of the vehicle when he was hit in a sense that that car was very much a part of what this motor vehicle positioning was from this officer. A substantial nexus . . . is established without any question between the insured vehicle, the injuries sustained, it was immediate in the sense that this was a fluid situation. It's not something where the officer was out of the vehicle for fifteen, twenty, thirty-five minutes having left the scene or turned [the car] off or anything like that.

The judge also found that

[t]he car was an intimate part of the traffic control of [the] scene. Granted another car had been there, but certainly this Police Officer coming from a different direction and parking it nose to nose was a significant aspect of the control of this scene. The overhead lights were on. The car was running and there was still obviously the need . . . to use the car radio to get the situation under control.

The judge memorialized her decision in a September 9, 2005 order, granting plaintiff's motion for summary judgment and requiring defendant to submit to contractual arbitration.

Following a limited remand to the trial court to consider additional evidence, the court confirmed its previous conclusion that plaintiff had established a substantial nexus between the police car and the accident. The judge said,

This car was an intimate part of the traffic control of that scene. It was still in the picture. . . . [A]ll the lights were on. . . . [E]verything needed to control that situation was part of that vehicle whether it was flares, a vest, using the radio or not isn't going to make a big difference to me, whether he had one in his hands or whether he was going to need one. Ultimately whether or not it's seconds or it's a few minutes does not change my conclusion because immediacy . . . is not required. . . . [T]he very placement of the vehicle, parking it nose-to-nose, the lights on, the car running, obviously the need for the officer to be able to use that vehicle, whether to get items, use the radio or using the car itself in my mind is . . . a substantial nexus of the vehicle to the accident.

Both uninsured motorist (UM) coverage and UIM coverage have the same purpose, "to make available insurance protection for accident victims where the tortfeasor did not have adequate insurance coverage." Handler v. State Farm Mut. Auto. Ins. Co., 253 N.J. Super. 641, 646 (App. Div. 1992). This coverage is "liberally construed . . . to effectuate a broad range of protection to accident victims." Ibid.

The determination of whether a person is "occupying" a motor vehicle for purposes of UM or UIM coverage is fact specific. Torres v. Travelers Indem. Co., 171 N.J. 147, 149 (2002). "'Mere coincidental connection between the accident and some touching of the car would not be enough.'" Ibid. (quoting Mondelli v. State Farm Mut. Auto. Ins. Co., 102 N.J. 167, 172 (1986)). Given this standard, we agree with the trial court that the facts reasonably support a conclusion that, at the time of the accident, plaintiff was "occupying" his police vehicle. As Judge Langlois observed, the car was an "intimate part of the traffic control" at that scene. The flares were in the car, the car radio was available for use, and "the very placement of the vehicle, parking it nose-to-nose, the lights on, the car running, obviously the need for the officer to be able to use that vehicle," created a substantial nexus.

 
We affirm substantially for the reasons expressed by Judge Langlois in her well-reasoned decisions from the bench.

The parties engaged in contractually-required binding arbitration that resulted in a $2.7 million award to plaintiff.

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A-0810-05T2

June 21, 2007