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Richard Vann v. Mercury Indemnity Company of America and Mercury Insurance Group

April 25, 2012

RICHARD VANN, PLAINTIFF-APPELLANT,
v.
MERCURY INDEMNITY COMPANY OF AMERICA AND MERCURY INSURANCE GROUP, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5821-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2012

Before Judges Sabatino and Ashrafi.

In this insurance coverage dispute, plaintiff Richard Vann appeals the trial court's order dated April 1, 2011, granting summary judgment in favor of defendant, Mercury Insurance Group.*fn1

The trial court rejected plaintiff's contention that defendant is obligated to provide him with extended medical expense benefits ("med-pay") coverage for injuries he sustained while driving a truck for his father's company. The court concluded that such med-pay coverage was inapplicable by virtue of the "regular use" exclusion set forth in the personal automobile policy defendant issued to plaintiff. We affirm that sound determination.

These are the pertinent facts. Plaintiff has driven a truck for Vann Trucking, a company in Elmer owned and operated by his father, for approximately thirty years. At the time of plaintiff's accident, Vann Trucking owned three trucks, including two Mack CH600 models. The trucks made local trips, typically within a hundred-mile radius of Philadelphia, and were not used for overnight deliveries.

At approximately 6:30 a.m. on November 19, 2007, a train struck the Mack CH600 truck plaintiff was driving for the company on a service road near Columbus Boulevard in Philadelphia. At the time of the accident, plaintiff was on his way to Packer Avenue Pier to pick up a trailer to hitch to the truck. Plaintiff alleges that he sustained various injuries from the accident, including injuries to his lower back, neck, shoulders, and head.

At plaintiff's deposition, he described the general practices that he followed in determining which particular company truck he would use when performing his job:

Q.: Are you restricted by the type of truck for what you can transport? I mean do you use it for one job as opposed to another or can they be used interchangeable?

PLAINTIFF: It's interchangeable. It just depends on the style of truck you want to drive that day.

Q.: Now, on the date of the accident, is there a reason that you took the CH600 truck that you did?

PLAINTIFF: Well, that's one I normally drive. You know, I have access to all of them, but that one is parked closest to me. It's at my brother's house. That's the one -- once you start with ...


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