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

NOT FOR PUBLICATION WITHOUT THE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
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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.
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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
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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
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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 . . . .
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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
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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
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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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