MANJRI SHAH v. BERENICE VALERIO-GOMEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MANJRI SHAH and SAMIR SHAH,

Plaintiffs-Appellants,

and

TUSHAR SHAH,

Plaintiff,

v.

BERENICE VALERIO-GOMEZ, REUBEN

MARTINEZ, MARIA J. GOMEZ-PERALTA,

GEICO INDEMNITY COMPANY, ROBERT WEISS,

ROBERT WEISS PROPERTIES, THE GUARDIAN

INSURANCE COMPANY, HEALTH NET OF

NEW JERSEY, INC., THE RAWLINGS

COMPANY, LLC (parties in interest)

Being placed on notice of their right

(if any) to intervene for purposes of

Subrogation,

Defendants,

and

PHOENIX INSURANCE COMPANY,1

Defendant-Respondent.

________________________________________

October 31, 2013

 

Argued: October 23, 2013 Decided:

 

Before Judges Fuentes, Simonelli and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9561-08.

Anthony L. Coviello argued the cause for appellants.

 

James P. Lisovicz argued the cause for respondent (Coughlin Duffy LLP, attorneys; Mr. Lisovicz, of counsel and on the brief; Brooks H. Leonard, on the brief).

PER CURIAM

Plaintiffs Manjri Shah and her son appeal from the August 3, 2012 order of the Law Division granting defendant Phoenix Insurance Company's (Phoenix's) motion for summary judgment and dismissing plaintiffs' complaint in which they sought underinsured motorist (UIM) benefits under a contract of insurance Phoenix had issued to Shah's employer. We affirm.

The facts regarding the accident which led to plaintiffs' claim are essentially undisputed. On November 27, 2006, Shah and her son drove to New Brunswick in a 2001 Honda Accord that was owned by Shah's employer, Alliance Tire Company, Inc. (Alliance), and insured by Phoenix. Shah parked on the street, turned off the engine, and locked the doors of the car. She and her son then went to pick up food from a take-out restaurant located two blocks away.

Shah and her son were away from the car for approximately twenty to thirty minutes. They then began walking back to the car. As they were about "one to two car lengths" away from the car, they were "suddenly and without warning . . . struck from behind" by an automobile. Shah and her son were still on the sidewalk when they were struck and neither was in contact with the car. Shah testified at a deposition that she remembered activating the keyless remote to unlock the car's doors just prior to the accident, but it was unknown whether the doors were actually unlocked as a result.

Phoenix had issued a commercial insurance policy to Alliance on September 15, 2006. The policy only listed Alliance as a "named insured." It is not disputed that Alliance is a corporation. In pertinent part, the UIM endorsement provides that if the named insured is a corporation, then "[a]nyone 'occupying' a covered 'auto'" is an "insured." On the other hand, if an individual is the "named insured," then that individual and any "family members," as well as "[a]nyone else 'occupying'" a covered auto are "insureds." The endorsement defines "occupying" as meaning "in, upon, getting in, on, out or off."

In an oral opinion, the motion judge found that Shah was not a "named insured" on the policy and, therefore, she and her son needed to be "occupying" the car in order to be covered. The judge found that neither was "in, upon, getting in, on, out or off" the car at the time they were struck on the sidewalk. Therefore, they were not entitled to UIM benefits under the clear terms of the policy. This appeal followed.

On appeal, plaintiffs contend that the judge erred by granting Phoenix's motion for summary judgment because Shah was a named insured and they were both occupying the vehicle at the time of the accident. We disagree.

We review summary judgment decisions de novo and apply the same standard utilized by the trial court, namely, whether the evidence, when viewed in a light most favorable to the non-moving party, raises genuinely disputed issues of fact sufficient to warrant resolution by the trier of fact or whether "the evidence is so one-sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (internal quotation marks omitted); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). "[T]he interpretation of an insurance contract is a question of law which we decide independent of the trial court's conclusions." Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 428 (App. Div. 2004).

"'[W]hen the language of an insurance policy is clear, [appellate courts] must enforce its terms as written.'" Thompson v. James, 400 N.J. Super. 286, 291 (App. Div. 2008) (alteration in original) (quoting Conduit & Found. Corp. v. Hartford Cas. Ins. Co., 329 N.J. Super. 91, 99 (App. Div.), certif. denied, 165 N.J. 135 (2000)). The language of the Phoenix policy at issue here is plain and unambiguous. The only "named insured" set forth on the policy declaration page is Alliance, a corporation. Therefore, for plaintiff and her son to have coverage, they had to be "occupying" the car. The question of "whether a person is 'occupying' a motor vehicle for purposes of uninsured or underinsured motorist coverage 'must be determined on a case-by-case basis, depending on the facts of the accident and the use of the vehicle.'" Id. at 292 (quoting Torres v. Travelers Indem. Co., 171 N.J. 147, 149 (2002).

In Thompson, the driver drove his employer's vehicle to a gas station to refuel, left it there, and walked about 350 feet away to a grassy median of an exit ramp to look for lost jewelry. Id. at 289-90. He was then struck by an uninsured motorist. Id. at 290. Under those circumstances, we found "there was nothing about plaintiff having 'occupied' the covered vehicle that was directly, much less substantially, related to the incident in which he was injured." Id. at 295-96.

Similarly, in Severino v. Malachi, the driver parked the covered auto on the side of the road and turned off the engine. 409 N.J. Super. 82, 86 (App. Div.), certif. denied, 200 N.J. 505 (2009). The driver and a passenger then exited the car and, "about eight seconds" later, they were struck by another vehicle as they were crossing the street. Id. at 86-87. The passenger who remained in the car stated at his deposition that the victims "were probably several feet away from the car when they were struck." Id. at 87. Under these circumstances, we held that the victims "failed to establish the requisite 'substantial nexus' between the accident and the [covered] vehicle." Id. at 92.

Applying these principles here, it is clear that neither Shah nor her son were "occupying" the car when they were struck. They parked and left the vehicle on the street when they went to the restaurant that was two blocks away. They were gone for at least twenty minutes. They never got back to the vehicle and were still at least one or two car lengths away when they were struck on the sidewalk. Shah's action in activating the keyless remote plainly did not bring her within the definition of the term "occupying" in the policy.

Because Shah and her son were not occupying the covered vehicle at the time they were struck, they are not entitled to UIM coverage under the Phoenix policy. Therefore, the judge properly granted Phoenix's motion for summary judgment.

Affirmed.

1 Incorrectly pleaded as Travelers Insurance Company.