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Favell v. Hernandez

Decided: September 30, 1992.

CLIFFORD G. FAVELL, PLAINTIFF,
v.
ALVARO HERNANDEZ, WALTERS FLOWERS, JENNIE PEDGURSKI, AND JOHN DOE (A FICTITIOUS NAME), DEFENDANTS



Cassini, J.s.c.

Cassini

On September 16, 1989, plaintiff, Clifford Favell (Favell) was the operator of a motor vehicle that was involved in an accident with a vehicle owned by defendant, Jennie Pedgurski t/a Walters Flowers (Pedgurski) and operated by Alvaro Hernandez (Hernandez).

The vehicle owned by Pedgurski and operated by Hernandez was a 1988 Chevrolet station wagon. It was registered as a commercial vehicle and was insured under a business auto policy indicating Pedgurski, individually, as the named insured. The policy provided for, among other things, personal injury protection ("PIP").*fn1

At issue is whether defendant is subject to the verbal-threshold, N.J.S.A. 39:6A-8a, as set forth in the New Jersey Reparation Reform Act ("Act"), N.J.S.A. 39:6A-1, et seq., and, if so, has plaintiff met the standard for compliance with the verbal-threshold requirements to recover non-economic damages from defendant.

Favell argues that because the Pedgurski vehicle was registered commercially, insured under a business policy and used in pursuit of the defendants' business, the verbal-threshold statute does not apply because it does not come within the definition of "automobile" as set forth in N.J.S.A. 39:6A-2a. Hence, Favell contends, the limitations on the right to claim noneconomic damages are inapplicable and unrestricted recovery of those damages should be allowed.

Pedgurski rejects this argument and claims that even though the vehicle was registered commercially and used in their business, it nonetheless falls within the definition of "automobile" as set forth in N.J.S.A. 39:6A-2a. As such, defendant should be entitled to the benefits of the applicable verbal-threshold, N.J.S.A. 39:6A-8a. Specifically, N.J.S.A. 39:6A-2a defines automobile as:

Favell argues that irrespective of the fact that defendant's vehicle may be described as "a private passenger automobile of a private passenger or station wagon type", it nevertheless was registered commercially, insured under a business policy and used in defendant's business. Thus, plaintiff argues, intrinsically the vehicle is commercial in nature. As such, pursuant to N.J.S.A. 39:6A-4, a plaintiff who is involved in an accident with a commercial vehicle is not subject to the verbal-threshold limitations. That is, the verbal-threshold only applies to accidents

involving "automobiles" not accidents involving commercial vehicles.

In the alternative, plaintiff argues that even if the vehicle is determined to be an automobile, within the meaning of the statute, plaintiff has suffered injuries as described within the categories of the verbal threshold statute, N.J.S.A. 39:6A-8a. Favell maintains that his injuries prevent him from playing competitive basketball or lifting weights as he used to do on a regular basis. In addition, he claims he has difficulty climbing stairs, bending, has recurring headaches, has significant limitations in range of motion of certain body parts, and sleeps with pain.

First, considering the arguments of determining the status of the vehicle, I conclude that defendant's 1988 Chevrolet station wagon is an "automobile" as defined by the plain meaning of the statute, N.J.S.A. 39:6A-2a, irrespective of the fact that it was registered commercially, insured under a business policy and used in defendant's business.

The vehicle in question is a private passenger automobile of a station wagon type. It is neither used as a public or livery conveyance for passengers, nor is it rented to others with a driver.

In Wagner v. Transamerica Insurance Company, 167 N.J. Super. 25, at 31, 400 A.2d 497 (App. Div., 1979) the court stated:

Motorcycles, commercial trucks, taxicabs, chauffeured rentals, and buses are excluded from the No-Fault Law, but we perceive no legislative design to exclude private passenger vehicles commercially owned and used in business pursuits. Support for our Conclusion is found in Iavicoli, No Fault & Comparative Negligence in New Jersey (1973), N.J. Super. 41 at 96 wherein the author, who served as counsel to the legislative commission which drafted the No-Fault Law as part of the reform package, states: 'Note well that the definition of automobile includes all private passenger automobiles except ones used for public or livery conveyance and automobiles rented with a driver. Therefore, if an individual or company owns an automobile used in his profession or its business that automobile must maintain the above mentioned [PIP] coverage.' (Emphasis added)

As heretofore stated, plaintiff argues that since the defendant's vehicle was registered commercially and was used in defendant's business, the allowance for recovery of non-economic losses resulting from personal injury is not within the verbal threshold category but rather traditional tort or unrestricted recovery should apply.

Given the factual setting of this case, I am not persuaded by plaintiff's argument, that because the vehicle was registered commercially, and used by defendant in her ...


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