EDWARD SIEMIETKOSKI VS. CHARLIE VELASQUEZ-FLORES (L-1481-17, ATLANTIC COUNTY AND STATEWIDE) ( 2020 )


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  •                                  NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although 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-2841-18T3
    EDWARD SIEMIETKOSKI,
    Plaintiff-Appellant,
    v.
    CHARLIE VELASQUEZ-FLORES,
    GUSTAVO A. VELASQUEZ,
    and COUNTY OF ATLANTIC,
    Defendants,
    and
    GEICO INSURANCE COMPANY,
    Defendant-Respondent.
    _____________________________
    Argued February 27, 2020 – Decided July 17, 2020
    Before Judges Alvarez, Suter and DeAlmeida.
    On appeal from the Superior Court of New Jersey, Law
    Division, Atlantic County, Docket No. L-1481-17.
    Danielle Judith Walcoff argued the cause for appellant
    (Lipari & Walcoff, LLC, attorneys; Christopher Santo
    Lipari and Danielle J. Walcoff, on the briefs).
    Stephen Joseph Foley, Jr. argued the cause for
    respondent (Campbell Foley Delano & Adams LLC,
    attorneys; Stephen Joseph Foley, Jr., on the briefs).
    PER CURIAM
    Plaintiff Edward Siemietkoski appeals the January 25, 2019 order granting
    summary judgment to defendant Geico Insurance Company (Geico) that
    dismissed plaintiff's claim for underinsured motorist (UIM) coverage. Geico
    denied plaintiff's claim based on the "regular use" exclusion that restricts UIM
    coverage where an insured has sustained bodily injury while occupying a vehicle
    furnished for the regular use of the insured. The facts here are not disputed.
    The only question is whether the exclusion applies. For reasons that follow, we
    affirm.
    I.
    On August 21, 2015, plaintiff—an Atlantic County park ranger—was
    involved in an automobile accident while operating an Atlantic County owned
    truck during the course of his employment. He testified his employer "had a
    pool of vehicles. We had one usually that we were supposed to be in. But if it
    was down at the motor pool . . . , we could use whatever." On the day of the
    accident, plaintiff drove his personal vehicle to his job site. The keys to the
    A-2841-18T3
    2
    available County vehicles were kept on a board, and he could pick them up.
    Plaintiff was not permitted to take the vehicle home at the end of his shift.
    Defendant Charlie Velazquez-Flores was insured under a "basic" policy.
    N.J.S.A. 39:6A-3.1(c). A basic policy "mandates no minimum bodily injury
    coverage but provides that the policyholder may elect to purchase such coverage
    'in an amount or limit of $10,000.'" Citizens United Reciprocal Exch. v. Perez,
    
    223 N.J. 143
    , 155 (2015) (citing N.J.S.A. 39:6A-3.1(c)). Plaintiff was insured
    by Geico under a New Jersey Family Automobile Insurance Policy that included
    both uninsured (UM) and UIM coverage. Plaintiff filed a claim under his UM
    and UIM coverages, but this was denied by Geico.
    Plaintiff filed an amended complaint in the Law Division against
    defendant Velasquez-Flores, Gustavo A. Velasquez, County of Atlantic and
    Geico.1 Count three—against plaintiff's private passenger automobile insurer,
    Geico—requested a judgment under his policy's UM coverage for injuries,
    losses and damages arising from the accident. The complaint was amended later,
    without objection, to include a request for benefits under the UIM coverage.
    1
    The complaint filed on July 20, 2017 was amended on August 10, 2017 to
    include the County.
    A-2841-18T3
    3
    On January 25, 2019, the trial court granted Geico's summary judgment
    motion, finding "Atlantic County furnished for the regular use of the plaintiff a
    vehicle that he could use at such times as he desired during working hours. He
    had a general right to use a County vehicle whenever he worked." And, because
    of this, the court determined the "exclusion in this policy would prohibit or it
    would exclude the UIM coverage in this case."
    On appeal, plaintiff raises the issue:
    THE PLAINTIFF'S USE OF THE VEHICLE WAS
    RESTRICTED BY HIS EMPLOYER AND WAS NOT
    A VEHICLE FOR PLAINTIFF'S . . . REGULAR USE.
    II.
    We review a trial court's order granting or denying summary judgment
    under the same standard employed by the motion judge. Globe Motor Co. v.
    Igdalev, 
    225 N.J. 469
    , 479 (2016). The interpretation of an insurance contract
    is a question of law, the review of which we undertake de novo. Polarome Int'l,
    Inc. v. Greenwich Ins. Co., 
    404 N.J. Super. 241
    , 260 (App. Div. 2008).
    An insurance policy "should be construed liberally in . . . [the insured's]
    favor . . . to the end that coverage is afforded 'to the full extent that any fair
    interpretation will allow.'"
    Id. at 258
    (first alteration in original) (quoting Kievit
    v. Loyal Protective Life Ins. Co., 
    34 N.J. 475
    , 482 (1961)). Exclusions in an
    A-2841-18T3
    4
    insurance policy are to be narrowly construed. Doto v. Russo, 
    140 N.J. 544
    , 559
    (1995). It is the insurer that bears the burden of demonstrating an exclusion
    applies. Flomerfelt v. Cardiello, 
    202 N.J. 432
    , 456 (2010).
    An exclusion "is a limitation or restriction on the insuring clause." Weedo
    v. Stone-E-Brick, 
    81 N.J. 233
    , 247 (1979) (quoting Haugan v. Home Indem. Co.,
    
    197 N.W.2d 18
    , 22 (S.D. 1972)). It "does not extend or grant coverage."
    Ibid. It is an
    exclusion from coverage. As the Court stated in Weedo, "the basic
    principle [is] that exclusion clauses [s]ubtract from coverage rather than grant
    it."
    Ibid. "If the policy
    terms are clear, [we must] interpret the policy as written
    and avoid writing a better insurance policy than the one purchased." Hardy v.
    Abdul-Matin, 
    198 N.J. 95
    , 101-02 (2009) (quoting President v. Jenkins, 
    180 N.J. 550
    , 562 (2004)).
    Plaintiff sought coverage under the UIM portion of his automobile
    insurance policy. Geico would not exercise its right to arbitration, choosing to
    litigate the case—arguing that the claim was excluded under the policy.
    Under the "losses we will pay" portion of the "uninsured/underinsured
    motorists coverage" portion of the policy, Geico agreed to pay "damages for
    bodily injury . . . caused by an accident which the insured is legally entitled to
    recover from the owner or operator of an . . . underinsured motor vehicle arising
    A-2841-18T3
    5
    out of the . . . use of that vehicle." An underinsured motor vehicle is defined in
    the policy as "a land motor vehicle or trailer of any type to which a liability bond
    or policy applies at the time of the accident but its limit for liability is less than
    the limit of liability for this coverage." No one disputed the tortfeasor's vehicle
    was underinsured because he had a "basic policy" of insurance, while plaintiff's
    policy included coverage of $50,000/$100,000 for each person/each occurrence
    in coverage.     Geico denied coverage under exclusion six: "bodily injury
    sustained by an insured while occupying a motor vehicle not owned by, and
    furnished for the regular use of the insured when involved in an accident with
    an underinsured motor vehicle."
    Plaintiff contends he was not using a vehicle for which he had personal or
    regular unrestricted use because he could not use it outside the scope of his
    employment, it remained on County property at all times and his ability to use
    the vehicle was not unrestricted. He also did not have the same vehicle every
    day and had to use it on County property.
    We agree based on existing precedent that the exclusion applied in this
    case. In DiOrio v. New Jersey Manufacturers Insurance Company, Inc., 
    63 N.J. 597
    , 603 (1973), the Supreme Court noted with respect to liability coverage that
    "[t]he word 'furnished' connotes much more than [mere] permission to use . . . .
    A-2841-18T3
    6
    It connotes some general right to use, something more than use with permission
    on occasions, whether recurring or isolated." In DiOrio, the operator of the
    vehicle when the accident happened was the son of one of the owners , but his
    use was "wholly occasional and depended on the father's permission."
    Id. at 605.
    Following remand, the DiOrio case returned to the Supreme Court on the
    question of whether the father's use of the car constituted "regular use" under
    the policy. DiOrio v. New Jersey Manufacturers Insurance Company, Inc., 
    79 N.J. 257
    (1979) (DiOrio II). Because there were no restrictions "on how and
    why and when" the father could use the car, the Court found ample support that
    the car was furnished to the father for his "regular use" within the meaning of
    the policy and that precluded coverage.
    Id. at 265.
    Cases make clear that "regular use" is not limited to situations where the
    vehicle is used both for business and personal uses or based on the frequency of
    use. In Venters v. Selected Risks Insurance Company, 
    120 N.J. Super. 549
    (App. Div. 1972), we rejected the trial court's decision that the plaintiff bus
    driver was not furnished a bus for "regular" use just because the driver did not
    drive the same bus every day. We found that it did not matter if a specific bus
    A-2841-18T3
    7
    was assigned or a number of them; the bus was furnished for regular use.
    Id. at 552.
    In Malouf v. Aetna Casualty & Surety Company, 
    275 N.J. Super. 23
    , 27
    (App. Div. 1994), we said that frequency of the use of the vehicle was not what
    was central. "The question is not whether [the plaintiff] frequently used the
    vehicle but whether it was 'furnished' for his regular use."
    Ibid. (quoting American Cas.
    Co. v. Lattanzio, 
    78 N.J. Super. 404
    , 410-12 (Ch. Div. 1963)).
    In Fiscor v. Atlantic County Board of Chosen Freeholders, 
    293 N.J. Super. 19
    (App. Div. 1996), we affirmed the denial of coverage when the warden of a
    jail, who was on call twenty-four hours a day, had an accident while intoxicated
    in a county owned vehicle he was permitted to drive for work, and to and from
    his home. We said there, "[w]here the insured, as in the present case, has an
    unrestricted right to use the vehicle for business purposes and was using the
    vehicle for such purposes at the time of the accident, the vehicle is one that is
    furnished for his regular use."
    Id. at 27-28.
    We are satisfied from these cases that the exclusion applied here. Plaintiff
    had a general right to use the County vehicle while on the job. The County
    vehicle was not used occasionally, but daily. The application of this exclusion
    is not limited to situations where only one vehicle is assigned. No one denied
    A-2841-18T3
    8
    that the vehicle was furnished by plaintiff's employer for use during his work
    hours, and that vehicle's use was not restricted for business purposes. These are
    exactly the characteristics that other courts have found to constitute a vehicle
    "furnished" for the "regular use" of the insured.
    Plaintiff has only belatedly argued that the exclusion was ambiguous. 2 We
    are satisfied that any ambiguity would not preclude application of the exclusion
    on the facts of this case.
    Affirmed.
    2
    Plaintiff's response to our request to address Katchen v. Geico, 
    457 N.J. Super. 600
    (App. Div. 2019), raised an issue about policy language ambiguity for the
    first time. We need not consider plaintiff's arguments not raised in the trial
    court. Selective Ins. Co. of Am. v. Rothman, 
    208 N.J. 580
    , 586 (2012); Nieder
    v. Royal Indem. Ins. Co., 
    62 N.J. 229
    , 234 (1973).
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