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Torres v. Travelers Indemnity Co.

March 14, 2002

FRANKLIN TORRES, PLAINTIFF-APPELLANT,
v.
THE TRAVELERS INDEMNITY COMPANY, DEFENDANT-RESPONDENT.



SYLLABUS BY THE COURT

In this opinion, the Court determines whether, at the time of the accident, plaintiff was occupying his employer=s vehicle and therefore was insured under the terms of his employer=s commercial automobile insurance policy.

On February 15, 1994, plaintiff was performing his job as a warehouse manager at his employer=s warehouse. A UPS truck arrived at the warehouse and the driver delivered packages. Shortly after the UPS truck left the warehouse, plaintiff discovered that a package was missing. Plaintiff used a company van to locate the UPS truck so that he could retrieve the missing package. After plaintiff found the UPS truck, he double-parked a few inches behind it, exited the van and, with the permission of the UPS driver, entered the UPS truck to search for the package. At trial, plaintiff testified that he believed the company van was still running when he left it to approach the UPS truck. Unable to locate the package, plaintiff exited from the driver=s side door of the UPS truck and began walking toward the company van. While he was walking along the side of the UPS truck and was a few inches away from the company van, he was struck by an approaching third vehicle that pinned him to the UPS truck and caused serious bodily injuries.

After determining that the vehicle that struck him was uninsured, plaintiff made a claim on his employer=s commercial automobile carrier, defendant Travelers Indemnity Insurance Co. (Travelers), seeking uninsured motorist (UM) arbitration. Under the policy, the term Ainsured@ included anyone Aoccupying a covered auto@ and the policy defined Aoccupying@ as Ain, upon, getting in, on, out or off@ of a vehicle. Travelers denied coverage on the ground that the plaintiff did not qualify as an Ainsured@ because he was not Aoccupying@ his employer=s van.

Plaintiff sought judgment declaring that Travelers had a duty to provide him with uninsured motorist coverage and a duty to engage in arbitration to determine the amount it owed. The trial court ruled in favor of Travelers, finding that plaintiff was not occupying his employer=s van at the time of the accident.

Over a dissent, the Appellate Division affirmed the trial court=s decision. In his dissenting opinion, Judge Stern contended that plaintiff was Aoccupying@ the vehicle within the meaning of relevant precedent and that there was a Asufficient nexus@ between the vehicle and the accident to require coverage.

HELD: The Court reverses the decision of the Appellate Division substantially for the reasons expressed by Judge Stern in his dissenting opinion.

1. The Court reaffirms the principles that it set forth in Mondelli v. State Farm Mutual Automobile Insurance Co., The opinion of the court was delivered by: Per Curiam

Argued February 13, 2002

On appeal from the Superior Court, Appellate Division.

The facts underlying this appeal are undisputed. On the morning of February 15, 1994, plaintiff Franklin Torres was working in his capacity as a warehouse manager for Cornell Surgical Company (Cornell). A UPS truck came to Cornell's warehouse to drop off packages. Almost immediately after that truck left the warehouse, Torres discovered that a certain package was missing.

In accordance with his employment duties, Torres used a Cornell van to search for the UPS driver and the missing package. Having located the UPS truck double-parked around the corner, Torres stopped the Cornell van a few inches behind it. Torres then exited the van, and, with the UPS driver's permission, entered the delivery truck to search for the missing package with the driver. At trial, Torres stated that he believed that the Cornell van was still running when he exited it.

Because Torres was unable to find the missing package in the UPS truck, he then exited from the driver's side door of the truck and began walking back towards the Cornell van. While walking in the street along the side of the UPS truck, and a few inches away from the front of the Cornell van, Torres saw another truck approaching him. He raised his right hand in an attempt to get the driver of the third vehicle to stop so that he could enter the Cornell van and avoid being hit. However, the "box portion" of the third vehicle accidentally struck Torres, pinning him between the third vehicle and the UPS truck. As a result of that accident, Torres alleges that he suffered serious bodily injuries.

After determining that the vehicle that struck him was uninsured, Torres made a claim on Cornell's commercial automobile carrier, defendant Travelers Indemnity Insurance Co. (Travelers), seeking uninsured motorist (UM) arbitration. Cornell's policy with Travelers contained a New Jersey ...


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