Before Judges Stern and Kimmelman.
The opinion of the court was delivered by: Stern, J.A.D.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Plaintiff, individually and as executrix of her husband's estate, appeals from the dismissal of her complaint seeking underinsured motorist ("UIM") benefits. Plaintiff's husband ("decedent") was struck and killed while loading construction cones and signs onto his employer's truck at a work cite on the Garden State Parkway. Plaintiff seeks UIM benefits from the carrier of decedent's employer. The trial judge held there was no coverage because decedent was not "occupying" his employer's truck at the time of the accident. We are told that the tortfeasor had only $300,000 in liability coverage, that decedent's personal policy had only $250,000 in UIM protection, and that defendant's policy provided $1,000,000 in UIM coverage. *fn1
The facts are essentially undisputed. Decedent was a construction supervisor for the insured, Earle Asphalt Company, while doing road repaving on the Parkway in Sayreville on October 12, 1995. He and others were picking up signs and cones and putting them on Eagle's truck at the end of the work day. As found by the trial Judge:
[D]ecedent was out of the vehicle picking up cones and signs at a construction site on the Garden State Parkway in Sayreville, New Jersey, on October 12, 1995. The vehicle belonging to the employer was on the roadway and decedent, according to the co-employee and eyewitness, went back to retrieve a sign. He was struck by a vehicle that crossed over the marked line and entered the closed lane. He was described in the police report as a "pedestrian". The area under construction had been "coned, signed, and illuminated" according to the Manual for Traffic Control in Work Areas.
According to the report prepared by the [New Jersey State] Police, the victim was propelled thirty-six feet and the vehicle that struck decedent impacted "with a parked construction vehicle" owned by decedent's employer, Earle Asphalt.
The trial Judge concluded:
Under these facts, I found that decedent was not "occupying" the vehicle according to the definition in the policy, since "occupying" was defined as "in, upon, getting in, on, out or off".
Plaintiff argues that, as the policy insured a business entity, it protected the employees and provided UIM coverage for injuries related to use of the employer's vehicle. She cites French v. New Jersey Sch. Bd. Ass'n Ins. Group, 149 N.J. 478, 494-95 (1997) and Cook-Sauvageau v. PMA Group, 295 N.J. Super. 620, 627 (App. Div 1996), certif. denied, 150 N.J. 29 (1997); see also New Jersey Mfrs. Ins. Co. v. Breen, 153 N.J. 424 (1998). *fn2 Plaintiff also asserts that she is entitled to the UIM benefits of defendant's policy because decedent was "occupying" the covered vehicle at the time of the accident. Defendant's policy provides coverage for "[a]nyone ... `occupying' a covered `auto.'" Under the policy, "`[o]ccupying' means in, upon, getting in, on, out or off" the covered vehicle.
Defendant acknowledges that, under similar policies, "employees injured in the scope of their employment in accidents involving their employer's motor vehicles are entitled to UIM coverage under the employer's policy," at least where the injured worker was "`occupying' the insured vehicle." See French, supra, 149 N.J. at 488-90; Cook-Sauvageau, supra, 295 N.J. Super. at 626-27. The parties agree that the "determination of whether the policy definition of `occupying' is satisfied" requires a "case-by-case analysis, depending on the facts of the accident and of the use of the vehicle." Mondelli v. State Farm Mut. Auto. Ins. Co., 102 N.J. 167, 172 (1986) (involving a claim for uninsured motorist benefits and noting that "[m]ere coincidental connection between the accident and some touching of the car would not be enough") (quoting Mondelli v. State Farm Mut. Auto. Ins. Co., 193 N.J. Super. 522, 532 (1984) (Petrella, J., Concurring in part and dissenting in part)).
Plaintiff contends that there is coverage in these circumstances because "[j]ust prior to the accident [decedent] had actually been `in' the truck. He had, only moments before the accident, gotten `off' the truck and but for the accident, he would have gotten `in' and `on' the vehicle." Defendant subscribes to the "but for" test, but insists that coverage has been found only where the employee or injured party was "occupying" the vehicle at the time of the accident and "where there was a true nexus between the vehicle and the accident." See Progressive Cas. Ins. Co. v. Brightstone Waterproofing, Inc., 295 N.J. Super. 581, 584 (App. Div. 1996) (driver trying to get into insured van that had been stolen entitled to UM benefits), certif. granted, 149 N.J. 34 (1997); Burns v. Market Transition Facility of N.J., 281 N.J. Super. 304 (App. Div. 1995) (good Samaritan entitled to PIP benefits for injuries sustained while rendering aid to driver in insured vehicle). According to defendant, the covered vehicle was not actually involved in the accident, the decedent here "was not in physical contact with the truck, he was not in close geographical proximity to the truck [being ten feet away], and there was no substantial nexus between the truck and the accident." It contends that "[t]o extend the term `occupant' to someone ten feet away, engaged in adjusting a traffic cone, merely because he had once been a passenger in the insured vehicle, and would probably be a passenger again, simply distorts the meaning of the word `occupant' beyond any ordinary meaning."
But defendant ignores the fact that, in addition to decedent's contemplated use of the vehicle as a passenger upon completion of his ongoing task, he was actually loading the covered vehicle while it was on the roadway at the time of the accident.
In Newcomb Hosp. v. Fountain, 141 N.J. Super. 291, 293 (Law Div. 1976), a car occupied by Fountain was stopped at a gas station and he "left the vehicle to watch the attendant adding water to the radiator." He was severely injured in a resulting explosion and fire. Ibid. The Law Division found that Fountain was an "occupant" of the vehicle because he "had not reached his destination at the time of the accident." Id. at 295. The court found the stop at the service station was "incidental to the ...