Brebner v. Government Employees Insurance Co., 012121 NJSUP, A-0974-19T2

Docket NºA-0974-19T2
Opinion JudgePER CURIAM
Party NameRICHARD G. BREBNER and ROSEANN BREBNER, Plaintiffs-Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, [1] Defendant-Respondent, and JENNIFER KOLASINSKI, claims manager, Defendant.
AttorneyJohn F.X. Fenerty, Jr., attorney for appellant. Margolis Edelstein, attorneys for respondent (Colleen M. Ready, of counsel and on the brief; Ian Mark Sirota, on the brief).
Judge PanelBefore Judges Whipple, Rose, and Firko.
Case DateJanuary 21, 2021
CourtSuperior Court of New Jersey

RICHARD G. BREBNER and ROSEANN BREBNER, Plaintiffs-Appellants,

v.

GOVERNMENT EMPLOYEES INSURANCE COMPANY, [1] Defendant-Respondent,

and

JENNIFER KOLASINSKI, claims manager, Defendant.

No. A-0974-19T2

Superior Court of New Jersey, Appellate Division

January 21, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 6, 2021

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1550-18.

John F.X. Fenerty, Jr., attorney for appellant.

Margolis Edelstein, attorneys for respondent (Colleen M. Ready, of counsel and on the brief; Ian Mark Sirota, on the brief).

Before Judges Whipple, Rose, and Firko.

PER CURIAM

In this insurance coverage dispute, plaintiff Richard G. Brebner2 was insured by defendant Government Employees Insurance Company (GEICO) under a New Jersey Family Automobile Insurance Policy that included underinsured motorist (UIM) coverage. On August 19, 2015, plaintiff was injured while driving home from work in his employer's 2009 Kia Rondo automobile, and claimed his injuries exceeded the $25, 000 bodily injury policy limits tendered by the tortfeasor's insurance carrier. Plaintiff filed a claim under his UIM coverage, which GEICO denied based on the policy's "regular use" exclusion. Plaintiff's ensuing complaint seeking coverage from GEICO was dismissed by the Law Division on the parties' cross-motions for summary judgment.

Plaintiff now appeals from the motion judge's September 27, 2019 order.3Acknowledging the essential facts are undisputed, plaintiff raises a single legal issue for our consideration, contending the judge erred because plaintiff was not "regularly using" the Kia at the time of the accident. Having conducted a de novo review of the record, we affirm.

Plaintiff was employed as a supervisor for a company that provided ultrasound services. He was permitted to drive the Kia during the course of his self-described "24/7" employment, which required frequent driving between the company's two offices, various client jobsites, and the airport when necessary. Plaintiff drove the Kia at least five days per week, including some weekends, but he was not permitted personal use of the car. Plaintiff's employer monitored his travel via tracking software installed in the Kia.

As reflected in the declarations page of the GEICO policy, plaintiff and his wife were named insureds; their cars - a 2009 Saturn Outlook and a 2014 Hyundai Sonata - were covered vehicles. Under the "LOSSES WE WILL PAY" subsection of the "UNINSURED/UNDERINSURED MOTORISTS COVERAGE" section 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 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."

GEICO did not dispute the tortfeasor's vehicle was underinsured. Instead, GEICO denied coverage under exclusion six: "[B]odily 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 countered he was not using the Kia for regular use because he was not permitted to occupy the car outside the scope of his employment, and he drove the Saturn Outlook as his personal vehicle.

We review a trial court's order granting or denying summary judgment under the same standard employed by the motion judge. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Because the interpretation of an insurance contract is a question of law, our review is de novo. Polarome Int'l, Inc. v. Greenwich Ins. Co., 404 N.J.Super. 241, 260 (App. Div. 2008); see also Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (recognizing appellate courts review summary judgment motions de novo, and accord no deference to the judge's conclusions on issues of law).

Generally, New Jersey courts apply a "canon of liberal construction . . . to effect the broadest range of protection to those who travel on and across roadways." French v. Hernandez, 184 N.J. 144, 154 (2005) (internal quotation marks omitted). Insurance policies are considered "contracts of adhesion," and as such, are "construed liberally in [the insured's] favor" to...

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