STEPHEN ROBERTS v. MALVYN ST. LOUIS

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1173-09T1

STEPHEN ROBERTS,

Plaintiff-Appellant,

v.

MALVYN ST. LOUIS AND AVA A.

ST. LOUIS,

Defendants,

and

ALLSTATE INSURANCE COMPANY,

Defendant-Respondent.

_________________________________

November 17, 2010

 

Argued October 12, 2010 - Decided

 

Before Judges Carchman and Waugh.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6896-06.

 

Donald T. Joworisak argued the cause for appellant (Law Offices of Karim Arzadi, attorneys; Karim Arzadi, on the brief).

 

Frank W. Farrell argued the cause for respondent (Gutterman, Markowtiz & Klinger, LLP, attorneys; Taryn E. Curry, on the brief).

 

PER CURIAM

Plaintiff Stephen Roberts appeals the dismissal on summary judgment of his claim for personal injury protection (PIP) benefits from defendant Allstate Insurance Company (Allstate). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

While employed in a managerial capacity by Van Hydraulics, Inc. (Van), Roberts used a company-owned GMC pick-up truck insured by Allstate. The applicable policy did not include PIP coverage for the pick-up truck, although there was PIP coverage for another vehicle covered by the policy. Allstate also provided insurance for Roberts' personal vehicles, and that policy included PIP coverage.

Van allowed Roberts to use the pick-up truck on a full-time basis. He drove it to and from work and on occasion to jobsites. However, he testified that he drove a different company vehicle if he required certain tools at the jobsite. At one point in his deposition, he characterized his usage as "all work stuff." He added that he sometimes used the pick-up truck for purely personal reasons, including transportation of family members and personal errands. It appears that his primary use of the vehicle was for commuting between his home and office.

On September 9, 2004, Roberts was driving the pick-up truck to his office in Perth Amboy from his home in Jackson Township. He was involved in a serious motor vehicle accident and sustained significant injuries. An arbitration not directly related to this appeal established his medical expenses as $265,000.

Roberts filed suit against the driver of the other vehicle. He also sued Allstate, claiming an entitlement to PIP benefits under Van's policy and his own policy. The insurance carrier for the other driver tendered its $100,000 policy, and its insured was dismissed from the case.

In March 2008, Allstate and Roberts filed cross-motions for summary judgment on the PIP claim. The motion judge concluded that Roberts was not entitled to PIP coverage because, at the time of the accident, he was not driving an "automobile" as defined in N.J.S.A. 39:6A-2(a).

The remaining issue, Roberts' claim for underinsured motorist coverage, was resolved through arbitration. Although the arbitration award, including medical expenses, was in excess of $1 million, the amount owed by Allstate was reduced because of the step-down provisions of Van s business policy with Allstate. Robert's actual recovery was $350,000, including the full amount of the other driver s policy and $250,000 payable by Allstate under its UIM coverage.

In October 2008, Roberts sought to reinstate his PIP claims against Allstate, which Allstate opposed. The motion was denied following oral argument on November 7, 2008. Roberts' motion for reconsideration was also denied. This appeal followed.

II.

Roberts argues that the motion judge misapplied N.J.S.A. 39:6A-2(a), as interpreted in Estate of Leeman v. Eagle Ins. Co., 309 N.J. Super. 525 (App. Div. 1998), in concluding that he was not driving an "automobile" entitled to PIP coverage. Allstate argues that the motion judge correctly applied the plain language of the statute in determining that Roberts was not driving an "automobile" and was not entitled to PIP coverage.

A.

An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46-2(c). Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

B.

As previously noted, the Allstate policy issued to Van did not specifically include PIP coverage for the pick-up truck involved in this case, but Roberts' policy did provide for PIP coverage. The question for resolution on this appeal is whether Allstate was required to provide such coverage under either policy pursuant to N.J.S.A. 39:6A-4, requiring "every standard automobile liability insurance policy" to provide PIP coverage, or N.J.S.A. 39:6A-3.1, allowing for the election of a "basic" automobile policy, but also requiring some PIP coverage.1

The answer to that question depends upon whether the pick-up truck owned by Van and insured by Allstate was an "automobile" as defined in the New Jersey Automobile Reparation Reform Act (Act), N.J.S.A. 39:6A-1 to -35, specifically in N.J.S.A. 39:6A-2(a). "Automobile" is defined, in pertinent part, as follows:

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-2(a) (emphasis added).]

 

A plain reading of the statute suggests that there are two separate requirements for a vehicle such as a pick-up truck or van to be considered an "automobile" for PIP purposes. First, it must be owned by an individual or by a couple who are residents of the same household. Second, it cannot be "customarily" used in the insured's "occupation, profession or business."

Roberts argues, in essence, that ownership is immaterial and that courts have focused solely on the issue of the driver's use of the vehicle. Roberts relies primarily on our decisions in Cheatham v. Unsatisfied Claim & Judgment Fund Board, 178 N.J. Super. 437 (App. Div. 1981) and Estate of Leeman, supra, 309 N.J. Super. 525.

In Cheatham, the issue was whether a bicyclist injured by the driver of an uninsured pick-up truck was entitled to PIP coverage from the Unsatisfied Claim and Judgment Fund pursuant to N.J.S.A. 39:6-86.1. The plaintiff argued that the uninsured vehicle was an "automobile" required to be covered by PIP under the Act. The truck at issue was owned by the driver personally, so the only issue before the court was whether it was "customarily" used in his "occupation, profession or business."

The Law Division held that there was no coverage because the driver used the truck for business purposes. We concluded that the truck was not "customarily used in the defendant's occupation, as required by the statute, and reversed. Cheatham, supra, 178 N.J. Super. at 442-43. We distinguished between use of a vehicle for transportation to and from a business and use as part of the business. We held that only the latter would be considered in determining whether there was "customary" use in an insured s "occupation, profession or business."

Here the isolated use of the vehicle to carry cleaning supplies was a convenience to [the driver]. The vehicle was simply personal transportation used to convey [the driver] from his home to his job and from job to job and back to home. In light of the purpose of Fund legislation, we simply cannot conclude, in the circumstances of this case, that the vehicle was an instrument to promote the interest of the business.

 

[Id. at 443.]

 

We also relied upon the fact that the "no-fault statute containing the definition of an automobile provides that the [A]ct is to be 'liberally construed so as to effect the purpose thereof.'" Ibid. (citing N.J.S.A. 39:6A-16).

Because Cheatham did not involve ownership by a corporate entity, it does not support Roberts' position on this appeal. However, it does lend substance to his argument that there were genuine issues of material fact as to whether he "customarily" used the pick-up truck in his employer's business. His deposition testimony that his use was for "business" is not necessarily determinative, because Cheatham does not treat commutation to work as a customary business use for the purposes of N.J.S.A. 39:6A-2(a).

In Leeman, the decedent died following a one-vehicle accident. He had been driving a pick-up truck owned by his employer, a corporate entity. However, the decedent generally drove to and from work in his personal car and was only using the employer's truck for a brief period, while his car was being repaired.

The issue on appeal was whether the decedent's estate was entitled to reimbursement of his medical expenses under the PIP coverage of his personal automobile policy. The Law Division held in favor of the estate under the replacement-vehicle provisions of the policy, and the carrier appealed. We affirmed, but held that coverage was warranted because the pick-up truck was an "automobile" as defined in N.J.S.A. 39:6A-2(a). Leeman, supra, 309 N.J. Super. at 533-34.

The insurance carrier asserted on appeal that no PIP benefits were owed "because decedent was injured while driving a commercial vehicle he did not own or regularly use." Id. at 529. In deciding Leeman, however, we focused on the issue of use.

The Ford Ranger is a "pick-up" truck and the only issue is whether the truck was customarily used in decedent's occupation, profession, or business. The decedent did not customarily use the Ranger as part of his daily work routine. The record shows that decedent's employer specifically allowed decedent to borrow the car "because his vehicle was broken down" and because decedent needed to get to and from work. Decedent used the vehicle for this purpose for four days. His use of the vehicle was no more associated with his occupation, profession, or business than if he had simply availed himself of public transpor- tation. There is no evidence that decedent was using the vehicle in direct relation with his occupation, profession or business. Thus, the pick-up truck used by decedent at the time of his accident is an automobile as defined under N.J.S.A. 39:6A-2(a).

 

[Id. at 534 (citations omitted).]

 

Nevertheless, we do not understand Leeman to have eliminated ownership as a consideration in deciding coverage cases under circumstances such as those in this case. The decision in Leeman turned on the fortuitous circumstance that the decedent's own car, which was covered by PIP, was temporarily unavailable. Here, the vehicle at issue was not loaned to Roberts for a brief period, but was provided for his regular use on an ongoing basis.

C.

To resolve the issue now before us, we look to the provisions of N.J.S.A. 39:6A-2(a) to determine whether the vehicle owned by Van and regularly driven by Roberts was an "automobile" for the purposes of the Act.

In interpreting the statute, we follow well-established guidelines.

At the outset, we restate the core principles of statutory construction that must guide our analysis. "The Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492 (2005). A court should "ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole." Ibid.; see also Soto v. Scaringelli, 189 N.J. 558, 569 (2007). . . . Ultimately, a court's role when analyzing a statute is to give effect to the Legislature's intent as evidenced by the "language of [the] statute, the policy behind it, concepts of reasonableness and legislative history." Johnson Mach. Co. v. Manville Sales Corp., 248 N.J. Super. 285, 303-04 (App. Div. 1991) (citing Monmouth County v. Wissell, 68 N.J. 35 (1975)).

 

[D'Ambrosio v. Dep't of Health & Senior Servs., 403 N.J. Super. 321, 334 (App. Div. 2008).]

 

As we held in Leeman, supra, 309 N.J. Super. at 533 (internal quotation marks omitted) (citation omitted), "[t]he meaning of a statute must . . . be sought in the language in which the act is framed, and if that is plain, . . . the sole function of the courts is to enforce it according to its terms."

The statutory language itself is clear. To be considered an "automobile," "a motor vehicle with a pickup body" must be (1) "owned by an individual or by husband and wife who are residents of the same household," and (2) "not customarily used in the occupation, profession or business of the insured other than farming or ranching." N.J.S.A. 39:6A-2(a). We see no basis in the language of the statute or the facts of this case to apply the statute as if the ownership requirement were not there. There is nothing ambiguous about the language, and the parties have not offered any legislative history supporting an interpretation other than the plain meaning of the statutory language.

Had the Legislature intended to include pick-up trucks and similar vehicles owned by corporate entities for the purposes of PIP coverage, it would not have included the language requiring personal ownership. The Legislature can remove the language if it decides that a different approach is appropriate, but we cannot do so.

Consequently, we affirm the decision of the Law Division dismissing Roberts' claims for PIP benefits under both his personal Allstate policy and Van's Allstate policy.

Affirmed.

1 Neither party has argued that the language of the specific policies is relevant to the issue on appeal.