On appeal from the Superior Court, Law Division, Passaic County
Before Judges Gaulkin, Stern and Brochin
The opinion of the court was delivered by
Peter Giordano was involved in an accident while driving his employer's 1989 Ford Aerostar minivan. He brought this action to recover personal injury protection (PIP) benefits under an automobile policy issued to his wife by the New Jersey Automobile Full Insurance Underwriting Association (NJAFIUA). A Law Division Judge entered summary judgment in favor of NJAFIUA based on a finding that the minivan was not a "private passenger or station wagon type" vehicle within the meaning of the policy and N.J.S.A. 39:6A-2a. We reverse.
Giordano was employed as a sales manager by Elmwood Auto Sales, Inc., a Ford dealership for new and used cars. As part of his compensation, he was issued a demonstration vehicle owned and insured by the dealership and bearing dealer license plates. The vehicle was available at all times to be test-driven by any prospective purchaser; when Giordano was at the showroom, his vehicle was always parked in front, with the "new car sticker" in place, to attract the attention of customers. Giordano testified that "at least 809" of the use of his vehicle was "work-related," but he was also permitted unrestricted personal use of it. Approximately every six months or 6,000 miles, he would replace the vehicle with a new one. The minivan Giordano was driving at the time of the accident was his then-assigned demonstration vehicle. It was fitted-out to carry seven passengers; it had air conditioning, a stereo sound system, leather bucket seats and carpeting and carried an automobile registration.
The accident occurred on a Sunday, while Giordano was engaged in personal pursuits. Traveling south on West Crescent Avenue in Allendale, he crossed the double yellow line into the northbound lane and struck a fully-loaded dump truck. As a named insured under the NJAFIUA insurance policy issued to his wife covering her own automobile, Giordano demanded PIP benefits payable under the policy to a "named insured" who sustains bodily injury while using "a private passenger automobile."*fn1 Consistent with N.J.S.A. 39:6A-2a, the policy defines a private passenger automobile as:
a self-propelled vehicle designed for use principally on public roads and which is one of the following types:
(1) a private passenger or station wagon type automobile,
(2) a pickup, panel truck, delivery sedan, van, or
(3) a utility automobile designed for personal use as a camper or motor home or for family recreational purposes; but
a 'private passenger automobile' does not include a motorcycle; an automobile used as a public or livery conveyance for passengers; a pickup, panel truck, delivery sedan, van or utility automobile customarily used for business, occupational or professional purposes other than farming or ranching, or a utility automobile customarily used for the transportation of passengers other than members of the user's family or their guests.
The question is whether the minivan was "a private passenger or station wagon type automobile" or whether it was a "van . . . customarily used for business, occupational or professional purposes other than farming or ranching." If it is characterized as "a private passenger or station wagon type automobile" PIP benefits are available notwithstanding that its customary use was for the dealership's business purposes. That is the holding of Wagner v. Transamerica Insurance Company, 167 N.J. Super. 25 (App. Div.), certif. denied, 81 N.J. 60 ...