In Silva v. Selective Fire and Casualty Insurance Company, 2023 N.J. Super. Unpub. LEXIS 618 (App. Div. April 24, 2023), the New Jersey Appellate Division seized yet another opportunity to give an automobile liability insurance policy its plain meaning where the policy at issue contained clear provisions and definitions for coverage.
Edwin Silva (hereafter “Plaintiff”) was working for a landscaping company that used company vehicles insured by Selective Fire and Casualty Insurance Company (hereafter “Defendant”). On the date of the incident at issue in this case, Plaintiff traveled to a job site in a company vehicle, parked the vehicle, unloaded a leaf blower from the rear of the vehicle and set it down on the roadway approximately two steps from the curb. Plaintiff bent down to start the leaf blower before strapping it on his back when he was suddenly struck by a passing vehicle.
Plaintiff settled with the tortfeasor-driver, but then sought additional underinsured motorist (UIM) coverage from Defendant for his injuries. Defendant denied coverage because it determined that Plaintiff was not occupying the insured vehicle at the time of the incident and the policy only afforded coverage to individuals sustaining bodily injuries while “occupying a covered auto.” “Occupying” was defined in the policy as being “in, upon, getting in, on, out or off of the covered auto…” Following limited discovery, Defendant moved for summary judgment arguing that Plaintiff’s injuries were not covered under the policy. Plaintiff argued in reply that a jury question remained, and it could be determined that he was an occupant of the vehicle if there was a substantial nexus between his proximity to the vehicle and the incident. The trial court denied Defendant’s motion for summary judgment and further discovery ensued.
Following additional depositions, Defendant moved for reconsideration arguing that even when viewing the facts favorably to Plaintiff, Plaintiff was not in the vehicle, had closed the vehicle’s door, had removed equipment from the vehicle, had stepped away from the vehicle, was no longer touching the vehicle and was ready to begin working away from the vehicle. The trial court agreed with Defendant and granted the motion for reconsideration finding “the fact that there was a close proximity to the vehicle, in and of itself, does not carry the day…” Plaintiff was not using the truck for any purpose at the time of the accident and his departure from the vehicle was not momentary or unanticipated, which the court believed was critical to its analysis.
Plaintiff appealed arguing that issues of fact still remained as to whether his proximity to the vehicle was sufficient to classify him as an occupant and as to whether he was an occupant because he was “alighting from or using the vehicle” when the accident occurred.
In affirming the trial court’s decision to grant Defendant’s motion for reconsideration, the Appellate Division began by affirming the long-standing concept that insurance policies are given “their plain, ordinary meaning” and that, when clear, these policies should be interpreted as written. While personal injury protection (PIP) benefits are available under all auto liability policies in New Jersey, it is the plaintiff’s burden to “establish a substantial nexus between the insured vehicle and the injury sustained.” Specifically, the Court noted that “mere proximity to a covered vehicle is insufficient to establish entitlement to coverage.”
The Court ultimately determined that the facts presented were insufficient to establish entitlement to coverage under this policy. Plaintiff’s incident was unlike situations where courts have found that pedestrians were occupying vehicles for the purpose of obtaining benefits, such as where water was being added to a vehicle’s radiator, a vehicle was actively being loaded, a pedestrian was leaning on a vehicle that was subject to a hit and run or where a vehicle was stopped momentarily to help a fellow motorist. Instead, the instant case was more similar to the Appellate Division’s decision in Thompson v. James, 400 N.J. Super. 286 (App. Div. 2008), where a plaintiff walked away from an insured vehicle while it was being fueled when that plaintiff was suddenly struck by a different vehicle. There, the Court found that departure from the vehicle was unrelated to the reason for the stop and was not brief enough for the plaintiff to have been considered a continuous occupant of the insured vehicle.
Finding that Plaintiff was not occupying the vehicle at the time he sustained his injuries, the Court affirmed the trial court’s decision to grant Defendant’s motion for reconsideration and to deny Plaintiff coverage under the policy as having been injured as an occupant of an insured auto. In so ruling, the Court adhered to New Jersey precedent calling for a clearly written automobile liability insurance policy’s plain meaning to govern in coverage disputes.
