MARIA RUFFA, ETC. VS. ANTONIO RUFFA (L-0402-16, SOMERSET COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Alth ough it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0830-17T1
MARIA RUFFA, as Guardian
Ad Litem of G.R., a minor, and
MARIA RUFFA, individually,
Plaintiff-Appellants,
v.
ANTONIO RUFFA, an individual,
CAFÉ PIAZZA, a business entity,
SAPORE DI CALABRIA, LLC, d/b/a
CP CATERINGS, a business entity,
Defendants,
and
FARMERS INSURANCE COMPANY
OF FLEMINGTON, a business entity,
Defendant-Respondent.
________________________________
Argued October 16, 2018 – Decided October 30, 2018
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0402-16.
Marc D. Portlock argued the cause for appellants
(Stathis & Leonardis, LLC, attorneys; Marc D.
Portlock, on the brief).
Anthony P. Pasquarelli argued the cause for respondent
(Sweet Pasquarelli, PC, attorneys; Kenneth C. Ho, on
the brief).
PER CURIAM
In this insurance coverage dispute, plaintiffs Maria Ruffa, individually
and as guardian ad litem for her minor son, G.R.1, appeal from the Law
Division's September 1, 2017 order dismissing their complaint against defendant
Farmers Insurance Company of Flemington (Farmers). Plaintiffs sued Farmers
to obtain insurance coverage for injuries sustained by then four-year old G.R.
Because the Farmers policy clearly excludes coverage for G.R.'s injuries, we
affirm.
On September 12, 2009, defendant Antonio Ruffa (Ruffa), G.R.'s father,
purchased a 2005 Chevrolet G3500 box truck (box truck) for his catering
business, defendant Sapore di Calabria LLC, d/b/a CP Caterings (Sapore). Ruffa
bought the box truck to deliver food and transport employees to catering events.
A hydraulic lift gate, called a "Tommy Gate", was permanently attached to the
vehicle. The Tommy Gate contained warnings that explicitly proscribed riding
1
We use initials for G.R. to protect his privacy.
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on its platform. Additionally, the owner's manual directed against using the
Tommy Gate as a wheelchair or personnel lift.
On September 13, 2009, Ruffa was inside the cargo area of the truck
installing shelving when G.R. accidentally operated the Tommy Gate and
sustained an injury to his right arm after it got caught between the gate's metal
prongs. At the time of the injury, the truck was parked in the lot of Ruffa's other
business, defendant Café Piazza.
Ruffa purchased automobile coverage for the box truck from Allstate
Insurance Company on September 14, 2009, the day after the incident.
Consequently, the Allstate policy did not cover the claim as it was not in effect
at the time of G.R.'s accident.
Farmers, however, issued a Businessowners Policy (Farmers policy) to
Sapore and Café Piazza that was effective on September 13, 2009. In general,
the Farmers policy excludes coverage for bodily injury claims arising out of the
operation of an automobile. Automobile is defined as "any land motor vehicle
. . . designed for travel on public roads, including any equipment or machinery
attached to such vehicle . . . [and not including] vehicles covered . . . as mobile
equipment."
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Two provisions of the Farmers policy provide limited coverage for losses
involving an automobile. First, under the incidental automobile coverage
provision, coverage is extended for bodily injury claims arising out of the
operation of "[c]herry pickers 2 and similar devices used to raise/lower workers"
if those devices are "permanently attached to an automobile." Second, pursuant
to the incidental mobile equipment coverage section, coverage is provided for
bodily injury claims "arising out of . . . [the] use of mobile equipment." Mobile
equipment is in turn defined as "solely land vehicles (including any equipment
or machinery permanently attached to, or forming an integral part of, the
vehicle) . . . used solely at your premises."
Farmers filed two summary judgment motions which the court denied on
December 16, 2016, and July 21, 2017. In opposing the motions, plaintiffs
claimed that the Tommy Gate was a "similar device" to a cherry picker.
Plaintiffs further argued that Farmers's restrictive interpretation of the incidental
automobile coverage provision was contrary to their reasonable coverage
expectations.
2
A cherry picker is a "[a] maneuverable vertical boom with an open bucket or
cage at the end from which a worker can perform work high off the ground."
Webster's II New College Dictionary 197 (3d ed. 2005).
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On September 1, 2017, Farmers sought reconsideration of the July 21,
2017 order and again moved for summary judgment. After hearing oral
arguments, the court concluded that the "language of the [incidental automobile
coverage] exclusion" unambiguously excepted coverage for the accident and
granted Farmers's motion. This appeal followed.
Plaintiffs raise three arguments on appeal. First, plaintiffs maintain, as
they did in the trial court, that because the Tommy Gate was permanently
attached to the box truck and is a "similar device" to a cherry picker, the court
should have found coverage under the incidental automobile coverage provision.
Second, they argue, for the first time on appeal, that at the time of G.R.'s
accident, the box truck was "solely a land vehicle" being used at Café Piazza's
premises, and thus G.R.'s injuries were covered under the incidental mobile
equipment coverage provision. Finally, plaintiffs claim that the trial court
improperly interpreted the incidental automobile coverage as an exclusion and
failed to interpret the policy consistent with their reasonable expectations.
Having considered these arguments in light of the record and applicable legal
principles, we conclude that the Farmers policy does not cover G.R.'s injuries.
We apply the same standard as the trial court when reviewing a grant of
summary judgment. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016).
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Pursuant to Rule 4:46-2(c), a court is required to grant summary judgment "if
the pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law."
If there are no genuine and material factual questions, we then determine
whether the trial court made a correct ruling on the law. Walker v. Alt. Chrysler
Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987). The interpretation and
construction of an insurance contract is a matter of law that we review de novo.
Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 428 (App. Div. 2004).
We consider Farmers policy in the context of well-established principles.
Insurance policies are considered "contracts of adhesion," and as such, are
"construed liberally in [the insured's] favor" to provide coverage "to the full
extent that any fair interpretation will allow." Longobardi v. Chubb Ins. Co.,
121 N.J. 530, 537 (1990) (alteration in original) (citing Kievit v. Loyal
Protective Life Ins. Co., 34 N.J. 475, 482 (1961)). Thus, it follows that coverage
clauses should be interpreted liberally, while exclusionary provisions should be
strictly construed. Simonetti, 372 N.J. Super. at 429.
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"If the policy terms are clear, courts should interpret the policy as written
and avoid writing a better insurance policy than the one purchased." President
v. Jenkins, 180 N.J. 550, 562 (2004). "A 'genuine ambiguity' arises only 'where
the phrasing of the policy is so confusing that the average policyholder cannot
make out the boundaries of coverage.'" Progressive Cas. Ins. Co. v. Hurley, 166
N.J. 260, 274 (2001) (quoting Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247
(1979)). If there is an ambiguity in the insurance contract, we "interpret the
contract to comport with the reasonable expectations of the insured, even if a
close reading of the written text reveals a contrary meaning." Zacarias v.
Allstate Ins. Co., 168 N.J. 590, 595 (2001).
Guided by these principles, we are not persuaded by plaintiffs' argument
that the Tommy Gate is a "similar device" to a "cherry picker" as it is not used
to "raise/lower workers." In fact, the warnings affixed to the Tommy Gate and
the instructions in its owner's manual specifically direct against such use.
Interpreting the incidental automobile coverage provision to insure G.R.'s
injuries would be providing plaintiffs with a better policy than what was
bargained for by the parties. See President, 180 N.J. at 562.
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Next, we turn to plaintiffs' argument that G.R.'s claim is covered under
the incidental mobile equipment coverage provision. That claim is both
procedurally and substantively deficient.
Procedurally, defendant did not raise that argument in opposition to
Farmers's summary judgment or reconsideration motions. Consequently,
because the issue does not go to the jurisdiction of the court nor does it concern
a matter of substantial public interest, we could decline to consider it on appeal.
See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
In any event, the argument is substantively without merit. G.R.'s injuries
did not "aris[e] out of . . . [the] use of mobile equipment" because the box truck
was not "solely [a] land vehicle" that was being used exclusively at Café Piazza.
It was undisputed that Ruffa purchased the truck to deliver food and personnel
for Sapore's catering jobs, bought automobile insurance for the vehicle, and
consistently used the truck for deliveries after the accident. Rather than "mobile
equipment," the box truck falls squarely within the definition of an automobile
as it was designed for travel on public roads.
We also disagree that the court committed reversible error because it
interpreted the incidental automobile coverage provision as an exclusion, rather
than a grant of coverage. Although the court mistakenly characterized the
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provision as an exclusion, the error was harmless because as we have already
determined after our de novo review, the provision is unambiguous and does not
cover plaintiffs' claims. Similarly, because the Farmers policy is clear and an
average policyholder can "make out the boundaries of coverage," Weedo 81 N.J.
at 247, we reject plaintiffs' argument that the court failed to interpret the Farmers
policy consistent with their reasonable expectations.
Affirmed.
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