C.G. v. MARGARET L. CHEHELI

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4184-19

C.G., a minor, by his mother
Y.E.-M. a/k/a Y.G., and J.G.,
a minor, by his mother Y.E.-M.
a/k/a Y.G.,

          Plaintiffs,

and

B.G., individually,

          Plaintiff-Respondent,

v.

MARGARET L. CHEHELI,
HADDI CHEHELI,
CHRISTOPHER PEERSEN,
ELRAC, LLC, ALLSTATE NEW
JERSEY PROPERTY AND
CASUALTY INSURANCE
COMPANY,

          Defendants,

and

NEW JERSEY
MANUFACTURERS INSURANCE
COMPANY,

     Defendant-Appellant.
______________________________

            Argued November 30, 2021 – Decided December 14, 2021

            Before Judges Rothstadt and Mayer.

            On appeal from the Superior Court of New Jersey, Law
            Division, Middlesex County, Docket No. L-1779-18.

            John V. Mallon argued the cause for appellant (Chasan,
            Lamparello Mallon & Cappuzzo, PC, attorneys; John
            A. Camassa, of counsel and on the briefs).

            Daniel N. Epstein argued the cause for respondent
            (Epstein Ostrove, LLC, attorneys; Jasmine Brown
            Seabrooks, on the brief).

PER CURIAM

      Defendant New Jersey Manufacturers Insurance Company (NJM) appeals

from an August 30, 2019 order denying its motion for summary judgment. In

addition, NJM appeals from two December 6, 2019 orders: (1) denying its

motion for reconsideration and (2) granting a cross-motion for summary

judgment filed by plaintiff B.G. 1 In granting the cross-motion, the motion judge



1
   The matter became ripe for appeal as a result of a July 8, 2020 consent
judgment. Under the consent judgment, B.G. settled his claim against NJM for
a specified dollar amount and "the parties agreed to litigate the legal question of
insurance coverage under the NJM policy (occupancy) . . . ."
                                                                             A-4184-19
                                        2
found B.G. was "occupying" his vehicle when he suffered his injury and

therefore entitled to underinsurance motorist (UIM) coverage. We reverse.

      We summarize the facts. On May 2, 2016, B.G. drove his two children to

school and parked his car adjacent to the curb and across the street from the

school building. B.G. got out of his car and helped his children exit the car.

B.G. believed he left the engine in his car running. B.G. then walked his children

to a crosswalk staffed by a crossing guard. The crosswalk was about one block

from where B.G. parked his car. While standing on the sidewalk and watching

his children cross the street in the designated crosswalk, B.G. saw the driver of

a car strike his children. B.G. suffered emotional distress after witnessing his

children get hit by the car.

      At the time of the accident, B.G.'s car was insured under a commercial

automobile policy issued by NJM for B.G.'s business vehicle. Under NJM's

policy, UIM benefits are available to "anyone occupying a covered auto." The

term "occupying" under NJM's policy is defined as "in, upon, getting in, on, out

or off."




                                                                            A-4184-19
                                        3
      B.G. filed suit against various defendants, alleging he suffered emotional

distress based on his witnessing the children being struck by a car.2 B.G. sought

UIM benefits from NJM under his business automobile policy.3

      NJM filed a motion for summary judgment asserting the children and B.G.

were not entitled to UIM benefits because they were not occupying the vehicle

at the time of the accident. The court granted the motion as to the children ,4 but

denied the motion as to B.G. without prejudice, pending further discovery.

      Upon completion of discovery, NJM refiled a motion for summary

judgment as to B.G.'s claim. NJM argued B.G. was not occupying the car at the

time of his injury. In a written statement of reasons, the judge found B.G. "had

every intention of returning to his running car after briefly walking his childr en

to the cross-walk." The judge explained "the evidence, and/or the reasonable

inferences arising therefrom, reflect[] that [B.G.] had a substantial nexus to his


2
  B.G.'s claim for negligent infliction of emotional distress is based on Portee
v. Jaffee,  84 N.J. 88 (1980). The children asserted their own personal injury
claims.
3
    The driver of the car that injured B.G.'s children had only $15,000 in
automobile insurance coverage. Thus, B.G. filed a UIM claim against his own
automobile insurance carrier.
4
  The order denying UIM coverage for the children is not the subject of this
appeal.


                                                                             A-4184-19
                                        4
running vehicle, which was insured by NJM." Based on finding B.G. satisfied

the substantial nexus test, the judge determined B.G. was entitled to UIM

benefits under NJM's policy. The judge entered an August 30, 2019 order

denying NJM's motion for summary judgment.

      NJM moved for reconsideration and B.G. filed a cross-motion for

summary judgment. A different judge heard the motion for reconsideration and

the cross-motion for summary judgment. After hearing the arguments of

counsel, the subsequent motion judge denied NJM's motion for reconsideration

and granted B.G.'s cross-motion for summary judgment.               In denying

reconsideration, the judge declined to review anew a summary judgment

determination rendered by a co-equal trial judge. After reviewing the earlier

motion transcript and written submissions, the reconsideration judge explained

he found nothing overlooked or clearly erroneous in the original motion judge's

determination.

      On appeal, NJM argues B.G.'s use of the car was coincidental to his arrival

at the location where the injury occurred. Additionally, NJM claims the original

motion judge erred in holding B.G.'s use and occupancy of the vehicle continued

despite his arrival at the children's school, which was his intended destination.

It also contends there was no substantial nexus between the insured vehicle and


                                                                           A-4184-19
                                       5
B.G.'s injury. NJM further asserts B.G. was not engaged with his car at the time

of his injury and therefore he failed to satisfy the substantial nexus test for

entitlement to UIM coverage. We agree.

      We review a trial judge's decision on a motion for summary judgment de

novo. Branch v. Cream-O-Land Dairy,  244 N.J. 567, 582 (2021). A motion for

summary judgment must be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). The parties agree there are no genuine issues of material fact precluding

our review of B.G.'s entitlement to UIM coverage under NJM's policy.5

      For B.G. to be entitled to UIM coverage, he had to be "occupying" the car

at the time of the accident as that term is defined under NJM's policy. The

determination "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.'"




5
   For purposes of the summary judgment motion, NJM accepted B.G.'s
contention his car's engine remained running while he walked the children to the
crosswalk.
                                                                            A-4184-19
                                        6
Thompson v. James,  400 N.J. Super. 286, 292 (App. Div. 2008) (quoting Torres

v. Travelers Indem. Co.,  171 N.J. 147, 149 (2002)).

      In Thompson, the plaintiff driver drove his employer's car to a gas station

to refuel, left the car at the station, and walked several hundred feet away from

the car to a grassy median to search for lost jewelry. Id. at 289. While away

from the car, he was struck by an uninsured motorist. Id. at 289-90. Based on

those specific facts, 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.

      In Severino v. Malachi,  409 N.J. Super. 82, 86 (App. Div. 2009), a case

similar to the matter on appeal, three men travelled from New York City to

Jersey City in a car owned by Severino's financé, Muniz. The driver, Severino,

parked the car in a parking space near his apartment. Ibid. Severino and a

second man got out of the car. Id. at 86-87. A third person, who remained in

the car, leaned "over to the floor to pick up his sandwich and, a few seconds

later, heard a 'boom.'" Id. at 87. According to the man who remained inside the

car, another driver struck the two men while they were crossing the street several

feet from where the car was parked. Ibid.




                                                                            A-4184-19
                                        7
      In Severino, we held the plaintiffs "failed to establish the requisite

'substantial nexus' between the accident and the Muniz vehicle." Id. at 92. We

concluded Severino completed the journey from New York City to Jersey City

when he parked the car in the parking lot and exited the car with the second man.

Ibid. Under the specific facts in that case, Severino intended to return to the car

to drive his passengers to their respective homes. Id. at 86. Despite that, we

held Severino's use and occupancy of the car ended at the time he sustained his

fatal injuries. Id. at 93.

      B.G. asserts Macchi v. Connecticut General Insurance Co.,  354 N.J.

Super. 64 (App. Div. 2002), supports his substantial nexus claim and establishes

his occupancy of the insured vehicle for entitlement to UIM coverage.

Applying the required fact sensitive, case-by-case analysis, we note several

factual differences between Macchi and this matter, rendering Macchi

distinguishable. In Macchi, the injured plaintiff driver stopped her car to assist

the driver of a car that had overturned. Id. at 66. The plaintiff was struck by an

uninsured motorist. Ibid. When the plaintiff driver in Macchi stopped her car

to render aid to the injured driver, she had not reached her intended destination.

Id. at 70. Under those facts, we found a nexus between the plaintiff driver,

acting as a good Samaritan, and the injury she sustained based on her


                                                                             A-4184-19
                                        8
unanticipated exiting of her car to aid an injured driver. Id. at 72. Because the

plaintiff driver made an unintended stop and had not reached her destination, we

held she was occupying the vehicle and was entitled to UIM coverage. Ibid.

      Unlike the plaintiff driver in Macchi, B.G.'s injury was not so inexorably

related to his use of the car to create a substantial nexus to his occupancy of the

car for UIM coverage. Here, B.G. would have witnessed the same accident

involving his children if he had walked to the school or travelled to the school

by other means. Nothing about his driving of the covered vehicle was connected

to B.G.'s emotional distress injury.

      The motion judge's finding of a substantial nexus between B.G.'s use of

the insured car on the date of the accident and his Portee emotional distress

injury constituted an overexpansion of the doctrine and was inconsistent with

existing case law. In the cases finding a substantial nexus between the injury

and the insured vehicle, Torres v. Travelers Insurance Co.,  171 N.J. 147 (2002)

and Bogey's Trucking & Paving, Inc. v. Indian Harbor Insurance Co.,  395 N.J.

Super. 59 (App. Div. 2007), the injuries plaintiffs suffered were directly

connected to their use of the vehicles.

      In Torres, the injured plaintiff drove his company van to look for a

delivery truck upon discovering a package had not been delivered. 171 N.J. at


                                                                             A-4184-19
                                          9
148. In searching for the missing package, the plaintiff stopped his van behind

the double-parked delivery truck and asked the truck driver if he could search

for the package. Ibid. Unable to locate the package, the plaintiff exited the

delivery truck, entered the roadway to return to his own van, and was truck by

an approaching truck. Ibid.

      In Bogey's, the injured plaintiff left the truck in which he was a passenger

to assist the truck driver in making a turn.  395 N.J. Super. at 63. While assisting

the driver, plaintiff was struck by an oncoming car. Ibid. Unlike B.G., the

plaintiffs in Torres and Bogey's were actively engaged with their vehicles at the

time of their respective injury.

      Having reviewed the record and the undisputed facts, B.G. was not

occupying the insured vehicle at the time he witnessed an oncoming car strike

his children. Nor did B.G. establish the requisite "substantial nexus" between

the accident and insured vehicle. B.G. parked his car, exited the vehicle with

his children, and walked with his children to a nearby crosswalk. At the time

B.G. saw his children struck by an oncoming car, B.G. was a block away from

his own car. B.G.'s insured vehicle was simply coincidental to the injury he

suffered. Not every act of driving to a location, parking, and exiting a car

satisfies the definition of "occupying" a car to be entitled to UIM coverage. At


                                                                             A-4184-19
                                       10
best, B.G. emotional distress claim was "merely coincidental" to the use of his

car. See Mondelli v. State Farm Mut. Auto. Ins. Co.,  102 N.J. 167, 172 (1986)

(holding a merely coincidental connection between the covered vehicle and the

accident insufficient to constitute "occupying").

      Because B.G. was not occupying the insured vehicle at the time he

witnessed the accident, he was not entitled to UIM coverage under NJM's policy.

Thus, the motion judge erred in denying NJM's motion for summary judgment

and granting B.G.'s cross-motion for summary judgment.

      Reversed.6




6
  Because the underlying matter concluded upon the entry of the July 8, 2020
consent judgment, the trial court need not enter any further orders in this matter.
                                                                             A-4184-19
                                       11