On appeal from the Superior Court of New Jersey, Chancery Division, Camden County.
Botter, King and McElroy. The opinion of the court was delivered by King, J.A.D.
This is a declaratory judgment action brought by Government Employees' Insurance (GEICO) seeking a determination that it was not obligated to provide benefits to Gary Daniels under the uninsured motorist provisions of a family automobile liability policy issued to his father, David Daniels. The Chancery Division judge found against coverage in an unreported opinion and the Daniels appeal.
The facts are not in dispute. On May 14, 1977 Gary, age 13, was operating a borrowed, uninsured Honda motorbike on a dirt motocross track designed for off-the-road motorbikes or dirtbikes. The course had one hill, one embankment, a banked turn known as a berm, and was used for recreational purposes and occasional racing. While Gary was operating the motorbike he was involved in a collision with Richard Patterson, also age 13, who was allegedly carelessly operating his uninsured Yamaha motorbike on the dirt track.
Patterson's bike had no license plate, turn signals, taillights, headlights or speedometer. It was equipped with a low-gear ratio to provide additional power over short distances. The tires had very deep treads with spiked knobs. The Yamaha bike could not be used on the highway because the knobby tires would cause it to slide out of control on a paved road. It was not registered with the State in any fashion and was strictly an off-highway recreational vehicle.
GEICO insured Gary's father under a family automobile policy issued in New Jersey with the standard endorsement for protection against uninsured motorists. The Daniels sought benefits under that coverage, claiming that the Patterson Yamaha qualified as an uninsured motor vehicle.
In the insuring agreement GEICO promised that:
The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle , because of bodily injury or property damage, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle; . . ., [Emphasis supplied]
The policy in pertinent part thereafter defines "a highway vehicle" as follows:
Highway vehicle means a land motor-vehicle or trailer other than
a) a farm type tractor or other equipment designed for use principally off public roads, while not upon public roads , [Emphasis supplied]
The trial judge concluded that the uninsured motorbike fell within the emphasized exclusion in the definition of highway vehicle.
We perceive that this appeal involves two questions:
1. Does the language of N.J.S.A. 17:28-1.1 which requires the inclusion of an uninsured motorist (UM) endorsement on every automobile policy compel coverage in this case despite the policy's restrictive definition of a highway vehicle? See Selected Risks Insurance Co. v. Zullo , 48 N.J. 362 (1966).
2. If the answer to the above is no, is the exclusionary definition of "highway vehicle" in GEICO's policy sufficiently unambiguous in the circumstances to deny coverage to young Daniels?
N.J.S.A. 17:28-1.1 requires that the UM endorsement provide for payment to the insured of legal damages recoverable "from the operator or owner of an uninsured automobile." But the term "automobile" is not defined therein. Defendants contend that the broad descriptive definition of a motor vehicle found in N.J.S.A. 39:1-1 should apply. That statute defines motor vehicle as including "all vehicles propelled otherwise than by muscular power excepting such vehicles as run only upon rails or tracks and motorized bicycles." (A "motorized bicycle" is defined as a "pedal bicycle having a helper motor . . . ." -- the Patterson motorbike had no pedals.)*fn1 There is no cross-reference to the Title 39 definition of motor vehicle or motorcycle in N.J.S.A. 17:28-1.1. The Supreme Court has told us in Gorton v. Reliance Ins. Co. , 77 N.J. 563, 572 (1978), that the term "uninsured automobile" in N.J.S.A. 17:28-1.1, mandating UM coverage, "must be read to mean the same thing as 'uninsured motor
vehicle' in the Unsatisfied Claim and Judgment Fund Law" because the purpose of the UM Law adopted in 1968 was to reduce the drain on the Fund. We find in the Fund Law that "uninsured motor vehicle" is defined as "a motor vehicle as to which there is not in force a liability policy meeting the requirements of . . . the Motor Vehicle ...