Sarah Lee, an infant, was riding her bicycle when she was injured as a result of a collision with a motor vehicle operated by Jack Vierra. Vierra, who was uninsured, was operating a Yamaha Enduro 125. The accident occurred at an intersection of two roadways located within an apartment complex known as Hilltop Estates.
Plaintiff, Min Y Lee, the mother of the infant, brings this action as guardian ad litem, to collect uninsured motorist and personal injury protection benefits from defendant Travelers Insurance Co. At the time of the accident Min Y Lee was the named insured under an automobile insurance policy issued by defendant. Plaintiff Sarah Lee was an additional insured under the terms of the policy.
While both parties have filed motions for summary judgment regarding their respective positions, plaintiff's attorney conceded at oral argument that defendant is entitled to summary judgment as to the claim for personal injury protection benefits.
There remains the issue of coverage for uninsured motorist benefits.
Defendant asserts that the vehicle operated by Vierra does not qualify as an uninsured motor vehicle under the provisions of N.J.S.A. 17:28-1.1 because it is a dirt bike, and therefore, designed principally for use off public roads. Plaintiff counters with an affidavit of an expert witness familiar with various types of motorcycles who opines that the Yamaha Enduro 125 is not a vehicle designed principally for off-road use but is one which is equally at home on public roadways.
The applicable portion of N.J.S.A. 17:28-1.1 provides that "'uninsured motor vehicles' shall not include . . . vehicles designed for use principally off public roads, except while actually upon public roads." While plaintiff's expert takes the position that the Yamaha Enduro 125 was not principally designed as an off-road vehicle, he admits that it can be utilized as a dirt bike. Defendant maintains that the Yamaha Enduro 125 is a dirt bike, and therefore, coverage would only be afforded if it were being operated upon a public roadway. Ordinarily, where a case may rest upon expert testimony justice is best served by a plenary trial on the merits. A court should be particularly slow in granting summary judgment when a determination rests upon the opinion of an expert witness. Ruvolo v. American Cas. Co., 39 N.J. 490, 500, 189 A.2d 204 (1963). There would appear to be a genuine question of material fact raised as to whether the vehicle in question is one designed for use off public roads.
The next issue raised by plaintiff is that the roadway upon which the accident occurred was open to the public, and therefore, it would make no difference whether the vehicle was principally designed for off-road use. Defendant points out that the accident occurred on private property. Plaintiff argues that while the accident occurred on a roadway within the apartment complex, it should, as a matter of law, be deemed a public road because it is used for vehicular traffic by several
hundred residents and presumably their guests, the Township of Edison requires the owners of the roadway to maintain and plow it and it was subject to site plan approval which mandates the same curbing grading and pavement required for public roadways.
A search of the case law fails to reveal any decisions in which the distinction between a public and a private road has been discussed in the context of uninsured motorist benefits pursuant to N.J.S.A. 17:28-1.1
While there appears to be no statutory definition of "public road," N.J.S.A. 39:1-1 defines private road or driveway as one "not open to the use of the public for purposes of vehicular travel." In State v. O'Connor, 76 N.J. Super. 246, 250, 184 A.2d 83 (Law Div.1962), Judge Molineux discussed the distinction between public highway and private drive as it applied to the ...