On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-2740-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt and Sapp-Peterson.
Plaintiff Frank Spatucci was injured as he was standing on a loading dock of a private warehouse loading pallets onto his truck when an employee of the pallet company drove a large forklift over his right foot as the employee was backing up the forklift. Spatucci sustained fractures of the second, third and fourth metatarsals. Spatucci and his wife Anna appeal from the August 15, 2006 order granting summary judgment and dismissing their complaint against defendant New Jersey Manufacturers Insurance Company (NJM), which denied their claims for uninsured motorists (UM) benefits. We affirm.
At the time of the accident, Anna Spatucci was insured by NJM under an auto insurance policy which included UM coverage up to $300,000. As a resident relative residing with his wife, Spatucci was an insured under the policy. When plaintiffs submitted a claim for UM benefits, NJM denied the claim, citing language in the policy which excluded UM coverage for injuries caused by a forklift. NJM maintained that coverage was excluded because a forklift was a vehicle primarily designed for off public road use. The specific language in the policy at issue provides, "[n]either uninsured motor vehicle nor underinsured motor vehicle includes any vehicle or equipment . . . [d]esigned mainly for use off public roads while not on public roads."
Plaintiffs filed an action in the Law Division to enforce the policy and defendants moved for summary judgment, arguing that they were entitled to dismissal of the complaint because, as a matter of law, a forklift does not meet the definition of a motor vehicle under the terms of the insurance policy. The motion judge agreed, stating, Here the forklift is . . . designed principally for use off public roads. It's designed principally for moving cargo and . . . things of that nature. It's . . . an incidental use that it has . . . the ability to transport a person.
If the . . . forklift were on a public road at the time of the accident then the exclusion would not apply, because it's clear it doesn't apply except when actually on public roads. Here there's no question a fact finder could find that it was on a public road. It was certainly on private property doing what it was designed to do, that is move the pallets.
Therefore, I find that it is not . . . ambiguous, it's clear, it parrots the statutory language of [N.J.S.A. 17-28-1.1] and therefore the motion shall be granted and the cross-motion will be denied.
The present appeal followed. On appeal, plaintiffs contend the motion judge erred in granting summary judgment in favor of defendant and denying their cross-motion for summary judgment because the forklift was registered and capable of being operated on public roadways and was thus uninsured under N.J.S.A. 17:28-1.1. We disagree.
At the outset, we note that since the sole issue involves contract interpretation, our standard of review is de novo, Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998); Young v. Prudential Ins. Co. of Am., 297 N.J. Super. 605, 621 (App. Div.), certif. denied, 149 N.J. 408 (1997). We agree with defendant that there is nothing ambiguous about the language in the policy which excludes UM coverage for vehicles primarily designed for use off public roads. Thus, the resolution of this dispute does not, as plaintiffs would urge, depend upon whether the forklift was registered or whether it is capable of being operated on public roadways. Daus v. Marble, 270 N.J. Super. 241, 251 (App. Div. 1994). Rather, the only question is whether a forklift is designed mainly for use off public roadways.
Neither the policy nor N.J.S.A. 17:28-1.1, after which the language in the policy is patterned, identify vehicles or equipment considered "mainly designed for use off public road roads." "[I]n the absence of a specific definition in an insurance policy, the words must be interpreted in accordance with their ordinary, plain and usual meaning." Daus, supra, 270 N.J. Super. at 251; (App. Div. 1994); see also Gibson v. Callaghan, 158 N.J. 662, 670 (1999).
In Daus, supra, we looked to the dictionary definition of forklift to determine whether a forklift vehicle was a "motorized land conveyance" within the meaning of plaintiff's homeowner's insurance policy, which excluded coverage for personal injuries resulting from motor vehicle or motorized land conveyance accidents. 270 N.J. Super. at 251. We concluded that a forklift was an example of a motorized land conveyance based upon the "commonly accepted definitions of forklift" and held that plaintiff was not entitled to coverage under his homeowner's policy. Id. at 251-52. We reasoned "that the average policy holder should expect that a motorized vehicle designed to transport cargo driven by a human operator would be considered a motorized land conveyance." Id. at 251.
Webster's New College Dictionary (3d ed. 2005) defines a forklift as an "industrial vehicle with a power-operated pronged platform that can be raised and lowered for insertion under a load that is to be lifted and carried." The American Heritage Dictionary likewise contained the exact same definition. Based upon the ordinary definition of a forklift, we have no doubt that the average policy holder would expect that a vehicle designed primarily for lifting and hoisting loads is not a vehicle primarily designed for use on a public roadway, irrespective of ...