On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6896-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Waugh.
Plaintiff Stephen Roberts appeals the dismissal on summary judgment of his claim for personal injury protection (PIP) benefits from defendant Allstate Insurance Company (Allstate). We affirm.
We discern the following facts and procedural history from the record on appeal.
While employed in a managerial capacity by Van Hydraulics, Inc. (Van), Roberts used a company-owned GMC pick-up truck insured by Allstate. The applicable policy did not include PIP coverage for the pick-up truck, although there was PIP coverage for another vehicle covered by the policy. Allstate also provided insurance for Roberts' personal vehicles, and that policy included PIP coverage.
Van allowed Roberts to use the pick-up truck on a full-time basis. He drove it to and from work and on occasion to jobsites. However, he testified that he drove a different company vehicle if he required certain tools at the jobsite. At one point in his deposition, he characterized his usage as "all work stuff." He added that he sometimes used the pick-up truck for purely personal reasons, including transportation of family members and personal errands. It appears that his primary use of the vehicle was for commuting between his home and office.
On September 9, 2004, Roberts was driving the pick-up truck to his office in Perth Amboy from his home in Jackson Township. He was involved in a serious motor vehicle accident and sustained significant injuries. An arbitration not directly related to this appeal established his medical expenses as $265,000.
Roberts filed suit against the driver of the other vehicle. He also sued Allstate, claiming an entitlement to PIP benefits under Van's policy and his own policy. The insurance carrier for the other driver tendered its $100,000 policy, and its insured was dismissed from the case.
In March 2008, Allstate and Roberts filed cross-motions for summary judgment on the PIP claim. The motion judge concluded that Roberts was not entitled to PIP coverage because, at the time of the accident, he was not driving an "automobile" as defined in N.J.S.A. 39:6A-2(a).
The remaining issue, Roberts' claim for underinsured motorist coverage, was resolved through arbitration. Although the arbitration award, including medical expenses, was in excess of $1 million, the amount owed by Allstate was reduced because of the step-down provisions of Van's business policy with Allstate. Robert's actual recovery was $350,000, including the full amount of the other driver's policy and $250,000 payable by Allstate under its UIM coverage.
In October 2008, Roberts sought to reinstate his PIP claims against Allstate, which Allstate opposed. The motion was denied following oral argument on November 7, 2008. Roberts' motion for ...