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Hughes v. Dillon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 25, 2008

JOHN HUGHES & JOYCE HUGHES, PLAINTIFFS-RESPONDENTS,
v.
RICHARD K. DILLON, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2677-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 12, 2007

Before Judges Lihotz and Simonelli.

In this personal injury action, arising from a rear-end automobile collision, we examine the applicability of N.J.S.A. 17:28-1.4, commonly called the "Deemer Statute," to the facts of this case. On October 30, 2002, plaintiff,*fn1 a Pennsylvania resident, was driving his 1997 Ford Econoline E250 panel van in New Jersey. While plaintiff was stopped at a light, defendant's vehicle struck plaintiff's vehicle in the rear. Following the accident, plaintiff was treated for sprains, strains and contusions of the neck, back and leg.

The vehicle was personally registered to and owned by plaintiff. The van did not have commercial plates and was insured with Farmer's New Century Insurance Company (Farmer's), a company licensed to do business in New Jersey. Farmer's provided personal injury protection (PIP) benefits to plaintiff.

Plaintiff solely owned and operated John Hughes Service Company, Inc., which installed and maintained commercial kitchen equipment. The accident occurred while plaintiff was returning to Pennsylvania after completing the repair of a commercial stove in Princeton. No evidence disputed that plaintiff's van was exclusively used for plaintiff's business, was outfitted for commercial use, and stocked with equipment including, gas fittings, gas piping, electrical fittings, wire, and wire terminals.

Plaintiff filed a motion seeking an order "declaring the New Jersey Verbal Threshold Law [N.J.S.A. 39:6A-8] inapplicable to plaintiff." Defendant opposed the application and argued plaintiff was subject to the provisions of N.J.S.A. 17:28-1.4, which requires an insurer authorized to transact business in New Jersey, to include certain minimum insurance coverages in its policies when an out-of-state vehicle is operated in New Jersey. Further, the statute provides that the insured will be "deemed" to have chosen and "shall be subject to the tort option specified in [N.J.S.A. 39:6A-8]."

On October 20, 2006, Judge Jacobson granted plaintiff's motion ruling that the verbal threshold did not apply in this case. Following trial, the jury returned a verdict for plaintiff and awarded $90,000 plus pre-judgment interest.

Defendant renews the arguments presented to the trial judge. Defendant maintains that the Deemer Statute "impose[s] the tort options on any vehicle registered in another state, in this instance, Pennsylvania, insured by a company authorized to transact business in this State." Therefore, before plaintiff could recover for non-economic losses resulting from the New Jersey accident, he must prove he suffered a statutorily enumerated injury as set forth in the limitation on lawsuit option provisions of the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8(a).

Plaintiff reiterates that his van was used exclusively for business purposes. Therefore, the vehicle fell outside of the definition of an automobile as defined in New Jersey's insurance laws, making the Deemer Statute inapplicable.

The provisions of N.J.S.A. 17:28-1.4 obligate insurers that are authorized to transact insurance business in New Jersey, to assure that if that vehicle is operated in New Jersey, the outof-state policy will provide the minimum liability coverage, uninsured motorist coverage, and personal injury protection coverage, which the insurer would be obligated to provide to a New Jersey insured, regardless of the minimum insurance coverage required by the insured's state. Whitaker v. DeVilla, 147 N.J. 341, 348-349 (1997). The statute also imposes the requirements of the verbal threshold without reference to the nature and type of insurance held by the out-of-state insured. Id. at 356.

Defendant notes that the Deemer Statute defines "automobile" by a specific reference to N.J.S.A. 39:6A-2(a). However, the Deemer Statute equally applies to "motor vehicles," which is a term that is not specifically defined. We reject this argument and concur with Judge Jacobson's analysis that plaintiff's vehicle was not an "automobile" as defined by and subject to the provisions of the statute.

The statutory definition provides:

"Automobile" means 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 or a camper type vehicle used for recreational purposes owned by 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. [N.J.S.A. 39:6A-2(a) (emphasis added.)]

In analyzing whether a motor vehicle is encompassed within the scope of the statutory definition of an automobile, a trial court's focus is fact sensitive and turns on the purpose and use of the vehicle. See N.J. Mfrs. Ins. Co. v. Hardy, 178 N.J. 327, 335 (2004) (the meaning of "automobile" in N.J.S.A. 39:6A-2(a) focuses first on the type of vehicle and then examines its use); Thompson v. Potenza, 364 N.J. Super. 462, 469 (App. Div. 2003) (van used one day per week for relative's courier service was automobile under statute); Giordano v. Allstate Ins. Co., 260 N.J. Super. 329, 332 (App. Div. 1992) (minivan constituted a private passenger vehicle based on manner it was designed, equipped and obviously intended to be used precisely as a passenger automobile); Cheatham v. Unsatisfied Claim & Judgment Fund Bd., 178 N.J. Super. 437, 442-43 (App. Div. 1981) (pick-up truck not customarily used in business or occupation was an automobile pursuant to statutory definition).

Judge Jacobson determined plaintiff's vehicle was explicitly excluded from the statutory definition of an automobile. The statute exempts "a van or panel truck . . . not customarily used in the occupation, profession or business of the insured." N.J.S.A. 39:6A-2(a). The judge found plaintiff's vehicle was exclusively utilized in his commercial stove repair business and that the lack of commercial tags or plaintiff's personal ownership were not dispositive of the vehicle's commercial use.

The factual underpinnings sustaining the trial court's decision and the legal conclusions resulting therefrom are "supported by sufficient credible evidence in the record," which we will not disturb on appeal. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Affirmed.


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