On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Bischoff, Petrella and Brody. The opinion of the court was delivered by Brody, J.A.D. Petrella, J.A.D. (concurring and dissenting).
This appeal questions whether plaintiff is protected by the uninsured motorist (UM) provisions of his girlfriend's automobile policy. The accident occurred about 11:00 p.m. as he was standing in the roadway talking to his girlfriend who was in the driver's seat of her car which was parked at the curb. His arm was resting on the roof of the car. Just as she turned the ignition key, another vehicle struck him and drove away without stopping.
Earlier that day plaintiff and his girlfriend had switched cars so that he could tune her car's engine at a garage where he worked as an automobile mechanic. About an hour before the accident plaintiff drove that car to a home where his girlfriend was babysitting. She had driven there in his car. When the homeowners returned, plaintiff and his friend planned to leave in their own cars. At the time of the accident they were discussing where they would later meet. He was also interested in her reaction to the improved sound of the engine. Plaintiff had no intention of entering her car.
Plaintiff and his friend each had policies providing UM protection. Defendant State Farm Mutual Automobile Insurance Company (State Farm) was plaintiff's carrier. Defendant Nationwide Mutual Insurance Company (Nationwide) was his friend's carrier. The UM provisions in both policies are identical. The policy limits are $15,000/$30,000. An arbitrator determined plaintiff's damages to be $19,000. Plaintiff and State Farm contend that he is entitled to the UM protection of both policies. The trial judge held State Farm liable for the full amount of its UM protection and Nationwide for the remaining $4,000. We affirm the judge's determination that State Farm's UM protection and not Nationwide's covers the accident. There is no basis for assessing Nationwide $4,000 and we reverse that portion of the judgment.
The policies each afford UM protection to "the named insured" and to "any other person while occupying an insured highway vehicle." Plaintiff is clearly entitled to the protection afforded by the State Farm policy in which he is a "named insured." The issue on this appeal is whether he was "occupying" his friend's vehicle so as to be entitled as well to the protection of the Nationwide policy.*fn1 As defined in the policies " 'occupying' means in or upon or entering into or alighting from." The precise question then is whether at the time of the accident, plaintiff was "upon" his friend's vehicle and therefore within the policy definition of "occupying" it.
N.J.S.A. 17:28-1.1 requires motor vehicle liability policies to contain UM coverage in order to ease the financial burden on the Unsatisfied Claim and Judgment Fund and to provide protection from uninsured, financially irresponsible motorists. Fernandez v. Selected Risks Insurance Company, 82 N.J. 236, 240 (1980). We must construe the policy liberally to further these objectives. See State Farm v. Zurich Amer. Ins. Co., 62 N.J. 155, 168
(1973). The meaning we arrive at must square with the reasonable expectations of the average member of the public who buys automobile policies so far as the policy language will permit. Cooper v. Government Employees Ins. Co., 51 N.J. 86, 93 (1968).
This interpretative bias favoring coverage does not overcome the meaning of the language in Nationwide's policy. Under that language a person is not occupying an insured vehicle by simply resting his arm upon it. Literally, of course, the word "upon" describes any touching of the insured vehicle. Yet courts have held in this context that the injured person was not "upon" the vehicle though touching it. Rosebrooks v. National Gen. Ins. Co., 13 Mass.App. 1049, 434 N.E. 2d 675 (App.Ct.1982), certif. den. 386 Mass. 1104, 440 N.E. 2d 1177 (Sup.Ct.1982); Lautenschleger v. Royal Indemnity Company, 15 N.C.App. 579, 190 S.E. 2d 406 (Ct.App.1972), cert. den. 282 N.C. 153, 191 S.E. 2d 602 (Sup.Ct.1972); Pennsylvania National Mutual Cas. Ins. Co. v. Bristow, 207 Va. 381, 150 S.E. 2d 125 (Sup.Ct.App.1966). Courts have also held that the injured person was "upon" the vehicle though not touching it. Nickerson v. Citizens Mutual Insurance Co., 393 Mich. 324, 224 N.W. 2d 896 (Sup.Ct.1975), and Sentry Ins. Co. v. Providence Wash. Ins. Co., 91 Wis. 2d 457, 283 N.W. 2d 455 (Ct.App.1979); cf. Newcomb Hospital v. Fountain, 141 N.J. Super. 291 (Law Div.1976) (passenger was "occupying" an automobile even though he was standing beside it watching a gas station attendant negligently pouring gasoline into its radiator when it exploded).
In denying coverage despite a touching, the court in Bristow provides a helpful analysis. It reasoned that the word "upon" should be viewed in relation to the word "occupying" which it defines in the policy and should be read together with the other words with which it is found: "in . . . or entering or alighting from." The court formulated the rule as follows:
Within the purposes contemplated here, a person may be said to be "upon" a vehicle when he is in a status where he is not actually "in" or is not in the act of "entering into or alighting from," the vehicle, but whose connection therewith
immediately relates to his "occupying" it. [ Pennsylvania National Mutual Cas. Ins. Co. v. Bristow, supra, 207 Va. at 385, 150 S.E. 2d at 128]
By contrast, the court in Utah Home Fire Ins. Co. v. Fireman's Fund Ins. Co., 14 Cal.App. 3d 50, 91 Cal.Rptr. 781 (Ct.App.1970), the only case we have found with facts similar to those here, held that there was coverage. It did so, however, on the basis of a statute which places "occupying" and "upon" in separate and distinct categories of coverage. N.J.S.A. 17:28-1.1 has no similar provisions.
As we view the policy definition of "occupying," if an injured person is not in an insured vehicle and is not in the process of entering or leaving it when an accident happens, he is not "upon" it as an occupant unless he is on or near the vehicle in connection with his immediate use of it as a means of transportation. Using the roof of the vehicle as an armrest while talking to someone inside does not constitute occupying the vehicle. See Norgaard v. Nodak Mutual Insurance Company, 201 N.W. 2d 871, 874 (N.D.Sup.Ct.1972) (steadying a rifle by resting it on an automobile is not a "use" of the vehicle under a liability policy's "ownership, maintenance or use" clause). This conclusion is consistent with the reasonable expectations of a person buying UM coverage.
Another provision of the policy supports the commonsense notion that to occupy a vehicle, a person outside the vehicle must be there in connection with using it as a means of transportation. As previously noted, to be covered the injured person has to be "occupying an insured highway vehicle." Part of the policy definition of "insured highway vehicle" limits coverage to persons occupying the vehicle " while operated by the named insured. . . ." (Emphasis supplied.) The policy itself thereby links "occupying" the vehicle with using it as a means of transportation and not as a stationary resting place.
The fact that while talking to his friend about a later rendezvous, plaintiff was anticipating her reaction to the sound of the tuned-up engine does not change the character of his connection with the vehicle.
The judgment against State Farm is affirmed. The judgment against Nationwide is reversed.
PETRELLA, J.A.D. (concurring and dissenting).
The majority opinion attempts to lay down a kind of "bright-line" test in a situation where either such a test cannot be used or its use is not warranted. Hence, although I concur in affirming the finding of liability as to State Farm, I dissent with respect to Nationwide Mutual*fn* and the majority's interpretation of the word, "upon" which is a ...