On appeal from Superior Court of New Jersey, Law Division, Union County, UNN-L-3838-01.
Before Judges King, Wefing and Lisa.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Kason Cheeks is employed as a police officer by the City of Newark. At approximately 3:40 a.m. on February 10, 2001, while on duty, Cheeks was injured in an automobile accident. He and his partner were on patrol. His partner was driving the marked police cruiser when it was struck in the rear by an intoxicated driver. Cheeks sustained injuries to his neck and his back.
Cheeks' father, Bernie J. Hardy, held an automobile insurance policy issued by New Jersey Manufacturers Insurance Company ("Manufacturers") that was in effect on the date of the accident. Although not entirely clear on the record before us, for purposes of this appeal, Manufacturers does not dispute that Cheeks qualifies as a resident relative under the terms of that policy.
In addition to filing a claim for workers' compensation benefits, Cheeks also sought Personal Injury Protection (PIP) benefits under his father's policy with Manufacturers, specifically, the cost of the chiropractic care he received at a chiropractic facility known as Haveron Total Health ("Haveron"). Manufacturers declined PIP coverage on the ground that the Newark police cruiser was not a "private passenger automobile."
Cheeks then assigned his claim against Manufacturers to Haveron, which sought arbitration of its outstanding bills. Manufacturers, in turn, filed a declaratory judgment action seeking a determination that Cheeks was not entitled to PIP benefits under his father's policy. It named as defendants Hardy, Cheeks and Haveron. The matter was presented to the trial court on cross motions for summary judgment. The trial court found for defendants. Manufacturers appeals and we reverse.
N.J.S.A. 39:6A-4 mandates PIP coverage for covered individuals "who sustain bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile." N.J.S.A. 39:6A-2 defines an automobile in the following manner:
[A] private passenger automobile of a private passenger or station wagon type that is owned or hired and is neither used as a public or livery conveyance for passengers nor rented to others with a driver; and a motor vehicle with a pickup body, a delivery sedan, a van, or a panel truck camper type vehicle used for recreational purposes owned an individual or by husband and wife who are residents of the same household, not customarily used in the occupation, profession or business of the insured other than farming or ranching.
What constitutes a "private passenger automobile" has been litigated in a variety of contexts. Wilno v. N.J. Mfrs. Ins. Co., 180 N.J. Super. 146 (App. Div. 1981), rev'd on dissent, 89 N.J. 252 (1982) (finding a dune buggy, which had been modified for off-road use, not to be a private passenger automobile and passenger injured when the vehicle overturned not entitled to PIP benefits under her own policy); Wagner v. Transamerica Ins. Co., 167 N.J. Super. 25 (App. Div.), certif. denied, 81 N.J. 60 (1979) (finding an automobile owned by a dealership and being demonstrated by a salesman to customer at time of accident to be a private passenger automobile, but injured salesman's claim for PIP benefits barred by the or by collateral source rule, N.J.S.A. 39:6A-6).
No one factor is determinative. The manner in which the title is held is not dispositive. Simon v. CNA Insurance Co., 225 N.J. Super. 606 (App. Div.), certif. denied, 113 N.J. 350 (1988) (finding that a government-owned vehicle can be a private passenger automobile). Nor is the manner of use at the time of the incident controlling. CSC Ins. Services v. Graves, 293 N.J. Super. 244 (Law Div. 1996) (finding a passenger van used for day care center transportation to be a private passenger automobile for purposes of PIP, since it was not used as public or livery conveyance or rented to others with a driver).
Research has not disclosed a reported New Jersey case that has analyzed whether a police cruiser can be considered a private passenger automobile. Other courts have concluded, however, that police cars are not private passenger automobiles. See Couch on Insurance 3d, § 116.3 (2002) ("Police cars have not been included in the definition of 'private passenger automobiles' generally on the ground that such vehicles are publicly owned, and specially designed and built"); Annotation, What Constitutes "Private Passenger Automobile" in Insurance Policy Provisions Defining Risks Covered or Excepted, 11 A.L.R.4th 475, § 6 (1982).
In Christy v. City of Newark, 102 N.J. 598 (1986), the Supreme Court held that a Newark police officer, injured by a hit-and-run driver who hit the police car he was driving while on duty, was entitled to collect uninsured motorist benefits under N.J.S.A. 39:6A-14. That statute, however, making uninsured motorist coverage compulsory, ...