On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4071-04.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Gilroy and Baxter.
This is an uninsured motorist (UM) coverage case where "occupancy" is in issue. Defendant CNA Insurance Company (CNA)*fn1 appeals from an order of the Law Division granting declaratory judgment and finding plaintiff Clarence Thompson covered under the UM provision of his employer's commercial automobile insurance policy. For the following reasons, we reverse.
The facts are essentially undisputed. In 2004, plaintiff was employed as a general project manager for Robert Charles Enterprises, a construction company in Linden, New Jersey. As part of his work responsibilities, plaintiff oversaw projects in New Jersey, Delaware, Maryland and Pennsylvania. Because plaintiff was required to travel to various project sites, his employer provided him with a car, which he drove for both work and personal use.
The car was insured by CNA, under a commercial automobile insurance policy issued to his employer. The employer was the only named insured. However, the policy's uninsured and underinsured motorist provision provided coverage to persons "occupying" the vehicle, and defined "occupying" as "upon, getting in, on, out or off" the covered vehicle.
On October 11, 2004, at around 9:30 a.m., as plaintiff was exiting the New Jersey Turnpike at Exit 13 on his way to work, he noticed a man standing on the grassy median between the two ramps heading towards Linden and Elizabeth. Believing that the man's car had broken down, plaintiff stopped to help. Plaintiff soon discovered that the man's car had not broken down, but that instead he was looking for jewelry that his girlfriend had thrown out the window of his car the night before, consisting of a large diamond ring, valued at approximately $65,000, and a tennis bracelet, valued at approximately $30,000. The man explained to plaintiff that he was going to post a reward for the return of the jewelry. The two continued to search but found nothing. The man then gave plaintiff his business card in case plaintiff found the jewelry, and plaintiff returned to his car and drove to work.
While at work, plaintiff called his girlfriend, Patricia Weise, and told her about the incident on the grassy median and the reward. When he said he was contemplating returning to look for the jewelry, she advised against it.
At around 3:00 p.m. that afternoon, plaintiff told his supervisor, Ernest Barbero, that he was going for some coffee and a snack, and he would be right back. He drove to an Exxon station located immediately off the Turnpike Exit 13 ramp, on Brunswick Avenue in Elizabeth, which was approximately a third of a mile from his office. After buying a soda and some chips, and a coffee for Barbero, plaintiff decided to fill up the car with gas in anticipation of a business meeting in Maryland the next day before returning to the office to finalize some contract bids. As the gas tank was being filled, plaintiff told the station attendant to move his car near the station's air pumps as he was going to walk across the street and he would be right back.
Plaintiff then returned to the grassy median of Turnpike Exit 13, the same location he had been that morning. To get there, plaintiff walked across four lanes of Brunswick Avenue until he reached a guardrail at the side of the exit ramp. He climbed over the guardrail and down into the grassy area of the exit ramp where he was struck by an uninsured motorist, Robert James, who was mentally deranged and admitted to police that he had "tried to kill" plaintiff. The accident occurred at 3:58 p.m., between twenty to fifty minutes after he parked his car. Plaintiff's car was later recovered from the parking lot of the Exxon station, approximately 350 feet from the scene of the accident.
Plaintiff suffered serious injuries from the accident. His last memory before awakening from a coma was speaking to the gas station attendant. He did not remember returning to the grassy median, or his reason for being there.*fn2
Plaintiff filed a declaratory judgment action seeking a declaration of uninsured motorist (UM) coverage from CNA, his employer's commercial automobile insurer.*fn3 CNA answered, denying coverage. Upon denial of CNA's motion for summary judgment, the matter proceeded to a bench trial in the Law Division, resulting in a finding that plaintiff was covered by the UM provision of the CNA policy. Specifically, the judge determined that plaintiff was "occupying" the car at the time of the accident, and that his leaving the vehicle, per se, "d[id] not equate with a loss of occupancy status," explaining that plaintiff had not abandoned his vehicle but had only temporarily left it at the Exxon station with the intent to return to it and return to work. The court found that it was of no ...