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Wilno v. New Jersey Manufacturers Insurance Co.

Decided: June 26, 1981.

KATHY WILNO, PLAINTIFF-APPELLANT,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division, Mercer County.

Allcorn, Pressler and Furman. The opinion of the court was delivered by Pressler, J.A.D. Allcorn, P.J.A.D. (dissenting).

Pressler

Plaintiff Kathy Wilno appeals from a summary judgment dismissing her complaint against defendant New Jersey Manufacturers Insurance Company (NJM) by which she sought personal injury protection benefits (PIP) under a policy issued to her by NJM covering an automobile owned by her. The judgment was based upon the trial judge's conclusion that the vehicle in which plaintiff was a passenger at the time of the single-vehicle accident in which she was injured was not an automobile within the intendment of the New Jersey Automobile Reparation Reform Act (No-Fault Law), N.J.S.A. 39:6A-1 et seq.

The facts are largely undisputed. Plaintiff was injured when the vehicle in which she was a passenger flipped over. The vehicle was then being operated by its owner, defendant Michael Robbins, on an off-road dirt track in a pinelands area of Jackson Township. Originally a Volkswagen "Beetle," the vehicle had been modified by Robbins into a form commonly known as a dune buggy. In that form it was neither registered nor registrable under the laws of this State because of its lack of such required safety equipment as directional signals, bumpers and a

full set of lights. Although other mechanical modifications had been made as well and the original tires had been replaced with what are known as all-terrain tires, the vehicle nevertheless remained a four-wheeled, two-seated automobile powered by an internal combustion engine, equipped with a roll cage instead of its original body, fitted out with seat belts and conventionally operated with brake, clutch and accelerator. The vehicle was uninsured and not required to be either registered or insured since it was not operated on the public streets or highways, its use being confined to that of a recreational off-road vehicle.

The mandate of N.J.S.A. 39:6A-4 is that every automobile liability policy -- in this case plaintiff's policy on her own car -- must provide PIP benefits to the named insured in respect of bodily injury sustained "as a result of an accident involving an automobile." The protection afforded to the named insured is not, of course, limited to an injury sustained as the result of an accident involving the insured vehicle but extends to an accident involving any automobile. See Amiano v. Ohio Casualty Ins. Co. , 85 N.J. 85 (1981); Hoglin v. Nationwide Mut. Ins. Co. , 144 N.J. Super. 475 (App.Div.1976). Thus, the question before us is whether the dune buggy here involved, by reason of the mechanical modifications which rendered it unregistrable for use on public roads, forfeited its identity and character as an automobile under the No-Fault Law. We conclude that it did not.

We are first satisfied that the vehicle is within the literal statutory definition of an automobile, which is defined by N.J.S.A. 39:6A-2(a) as

Moreover, N.J.S.A. 39:1-1 defines automobile as "all motor vehicles except motorcycles."*fn1 In qualifying the general definition of automobile with the modifier "private," it is clear that for purposes of the No-Fault Law, the Legislature intended to exclude commercial vehicles, including trucks, taxis, busses and livery vehicles, and that category of commercially-used vehicle which includes pick-up and panel trucks and delivery sedans. See Rybeck v. Rybeck , 141 N.J. Super. 481 (Law Div.1976). It is, therefore, our view that as used by the No-Fault Law, "private" was intended to denote the opposite of commercial and "passenger" was intended to denote a vehicle which is constructed so as to accommodate riders in addition to the operator. Thus, we are satisfied that this dune buggy was, literally, a private passenger automobile not within any of the express exclusions of the definitional section of the No-Fault Law and hence within the scope of coverage afforded by the Act.

The primary argument relied on by NJM in resisting coverage is its contention that the act was not intended to extend coverage to accidents involving unregistrable automobiles. We, however, reject registrability of a particular automobile as a coverage precondition or as an implied component of the automobile definition. First, had the Legislature intended to exclude unregistrable automobiles in general or unregistrable automobiles intended exclusively for off-road recreational use in particular, it clearly could have expressly so provided. Moreover, we are persuaded that neither registrability nor actual registration of a vehicle is an essential or intrinsic definitional element of "automobile." Registration is a concept relating

exclusively to the privilege to use an automobile on a public road. See N.J.S.A. 39:3-4. It is not a concept affecting the nature of the vehicle itself. It is our further perception that both registration and registrability would constitute coverage standards whose application might well defeat the salutary remedial purposes of the act itself in specific cases.

Nor are we persuaded by the suggestion that the Legislature must be presumed to have intended to exclude as covered automobile accidents, because of the high risk factor, those involving off-road unregistrable recreational automobiles. No statistics of any kind were offered on this record to suggest that on any legitimate comparative basis the risk of injury is greater in respect of such automobiles than it is in respect of conventional automobiles using the public highways. Indeed, it would seem to us that the recreational off-road vehicle is spared that substantial element of accident risk ...


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