April 25, 2008
KENNETH WARD, PLAINTIFF-APPELLANT,
NATIONAL CONTINENTAL INSURANCE COMPANY/PROGRESSIVE INSURANCE COMPANY, AND R.L.M. INSURANCE AGENCY, INC., DEFENDANTS-RESPONDENTS, AND S&D CONTRACTING, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1143-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 14, 2008
Before Judges Stern and Collester.
Plaintiff appeals from orders constituting a final judgment against his employer's automobile carrier, National Continental Insurance Company (NCIC), and its servicing agent, the R.L.M. Agency, for failure to include plaintiff and the personal vehicle he was driving at the time of his accident as insureds under the employer's policy. He seeks reversal of the summary judgment granted to NCIC and entry of summary judgment requiring NCIC to pay underinsured motorist (UIM) benefits under the policy. He also seeks reversal of the summary judgment entered in favor of R.L.M.
Plaintiff argues he "is entitled to underinsured motorist benefits under defendant NCIC's policy because he was occupying a temporary substitute for a covered automobile at the time of his accident"*fn1 and "there was evidence that defendant RLM failed to effectuate an amendment to the NCIC policy to add underinsured motorist coverage for employees using personal vehicles in the course of their employment."
Plaintiff asserts he was using his wife's vehicle because his work pick-up truck, one of four covered vehicles under his employer's policy, was "out of service" during "repair," within the meaning of the policy.*fn2 Under the employer's policy, coverage, including UIM benefits, is provided for anyone "occupying a covered 'auto' or a temporary substitute for a covered 'auto.'" Under the policy the substituted vehicle must have been "out of service because of its breakdown, repair servicing, loss or destruction."
In opposition to defendant NCIC's motion for summary judgment, and in support of his own, plaintiff certified:
9. At my deposition I was asked about the reason why I was driving my personal vehicle at the time of the accident and I was asked about the availability of the four (4) vehicles owned by S&D Contracting on the day of the accident.
10. I testified at my deposition that on the day of the accident one of the S&D vehicles may have been in the shop.
11. I have now been provided with a copy of an invoice from Tenafly Mobil Auto Care Center dated February 11, 2000 pertaining to a repair to the 1994 Chevy S 10 Pick-Up Truck owned by S&D Contracting on the day of the accident.
12. My review of this invoice has refreshed my recollection of the events surrounding my accident on February 10, 2000.
13. On February 10, 2000, the 1994 Chevy S
10 Pick-Up Truck owned by S&D Contracting was unavailable due to a repair.
14. On February 10, 2000, I was driving my personal 1988 Dodge Caravan as a substitute vehicle for the 1994 Chevy S 10 Pick-Up Truck owned by S&D Contracting which was unavailable due to repair.
The record also contains a bill, dated the day after the accident, for service of a covered vehicle. Thus, the question becomes whether the employee's personal vehicle could be deemed a "substituted vehicle."
Given the factual dispute and the motion judge's decision which does not address this contention, we remand for reconsideration of the motion for summary judgment on the issue, based on the standard announced in Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995).
The employer's president denied ever agreeing to cover a personal auto or discussing that with his agent, and testified in depositions it was "not a company policy to do so." The record is inadequate to hold the agency responsible for not adding plaintiff's personal vehicle as a covered auto. Brill.
There is an insufficient showing that the employer authorized or directed R.L.M. to add plaintiff's personal vehicle to the policy, and plaintiff did not pursue his claim against the employer.
Affirmed as to R.L.M.; reversed as to NCIC and remanded.