NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9561-08.
Anthony L. Coviello argued the cause for appellants.
James P. Lisovicz argued the cause for respondent (Coughlin Duffy LLP, attorneys; Mr. Lisovicz, of counsel and on the brief; Brooks H. Leonard, on the brief).
Before Judges Fuentes, Simonelli and Haas.
Plaintiffs Manjri Shah and her son appeal from the August 3, 2012 order of the Law Division granting defendant Phoenix Insurance Company's (Phoenix's) motion for summary judgment and dismissing plaintiffs' complaint in which they sought underinsured motorist (UIM) benefits under a contract of insurance Phoenix had issued to Shah's employer. We affirm.
The facts regarding the accident which led to plaintiffs' claim are essentially undisputed. On November 27, 2006, Shah and her son drove to New Brunswick in a 2001 Honda Accord that was owned by Shah's employer, Alliance Tire Company, Inc. (Alliance), and insured by Phoenix. Shah parked on the street, turned off the engine, and locked the doors of the car. She and her son then went to pick up food from a take-out restaurant located two blocks away.
Shah and her son were away from the car for approximately twenty to thirty minutes. They then began walking back to the car. As they were about "one to two car lengths" away from the car, they were "suddenly and without warning . . . struck from behind" by an automobile. Shah and her son were still on the sidewalk when they were struck and neither was in contact with the car. Shah testified at a deposition that she remembered activating the keyless remote to unlock the car's doors just prior to the accident, but it was unknown whether the doors were actually unlocked as a result.
Phoenix had issued a commercial insurance policy to Alliance on September 15, 2006. The policy only listed Alliance as a "named insured." It is not disputed that Alliance is a corporation. In pertinent part, the UIM endorsement provides that if the named insured is a corporation, then "[a]nyone 'occupying' a covered 'auto'" is an "insured." On the other hand, if an individual is the "named insured, " then that individual and any "family members, " as well as "[a]nyone else 'occupying'" a covered auto are "insureds." The endorsement defines "occupying" as meaning "in, upon, getting in, on, out or off."
In an oral opinion, the motion judge found that Shah was not a "named insured" on the policy and, therefore, she and her son needed to be "occupying" the car in order to be covered. The judge found that neither was "in, upon, getting in, on, out or off" the car at the time they were struck on the sidewalk.
Therefore, they were not entitled to UIM benefits under the clear terms of the policy. This appeal followed.
On appeal, plaintiffs contend that the judge erred by granting Phoenix's motion for summary judgment because Shah was a named insured and they were both occupying the ...