Fiscor v. Atlantic County Bd. of Chosen Freeholders

• Decision Date: 19 July 1996
• Citation: 679 A.2d 678,293 N.J.Super. 19
• Parties: Donald E. FISCOR, Plaintiff-Respondent Cross-Appellant, v. ATLANTIC COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendant-Cross Respondent, and Maryland Casualty Insurance Company, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 19

293 N.J.Super. 19

679 A.2d 678

Donald E. FISCOR, Plaintiff-Respondent Cross-Appellant, v. ATLANTIC COUNTY BOARD OF CHOSEN FREEHOLDERS, Defendant-Cross

Respondent,

and

Maryland Casualty Insurance Company, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued June 19, 1996.

Decided July 19, 1996.

Michael Silberberg, Red Bank, argued the cause, for appellant (Wolff, Helies & Duggan, attorneys; Mr. Silberberg, on the brief).

Michael Grimes, Cherry Hill, argued the cause, for Respondent/Cross Appellant Donald E. Fiscor (Grimes, Grimes, Grimes & Grimes, attorneys; Mr. Joseph P. Grimes, on the brief).

John P. Morris, Bridgeton, argued the cause, for cross/respondent Atlantic County Board of Chosen Freeholders (Mr. Morris and William P. Busch, attorneys; Mr. Morris and Mr. Busch, on the brief).

Before Judges SHEBELL and DREIER.

The opinion of the court was delivered by

DREIER, P.J.A.D.

Defendant Maryland Casualty Company appeals from a summary judgment declaring it liable under the "non-owned vehicle" provision of a personal automobile insurance policy issued to plaintiff, Donald E. Fiscor, for claims that arose out of an accident that occurred while plaintiff was driving a vehicle owned by defendant Atlantic County Board of Chosen Freeholders. Plaintiff cross-appeals from another provision of the summary judgment declaring Atlantic County not responsible either as an insurer under N.J.S.A. 40A:10-3 or as a self-insured local unit under N.J.S.A. 40A:10-4. For reasons that we will explain, we reverse the declaratory judgment entered against defendant Maryland Casualty, reverse the declaratory judgment entered in favor of the County, and remand for further proceedings in accordance with this opinion.

Plaintiff was the warden of the Atlantic County Jail and as such was on twenty-four hour call. He was assigned a County-owned vehicle that he was permitted to drive to and from his home. At the time of the accident, plaintiff had been returning home from work and, on his way home, stopped at a winery and became intoxicated. As he completed his journey home, he rammed into a vehicle driven by Kristin Siville, killing her. He was later indicted and apparently convicted of reckless manslaughter.

I

In addition to the County-owned vehicle, plaintiff and his wife owned two private vehicles, insured by Maryland Casualty, which they used as their ordinary pleasure vehicles. The Maryland Casualty policy contained an exclusion stating:

We do not provide Liability Coverage for the ownership, maintenance or use of: ... (2) Any vehicle, other than "your covered auto," which is: ... (b) furnished or available for your regular use.

[Emphasis added.]

The trial judge determined that the language of the policy defined "you" and "your" as encompassing both plaintiff and his wife. Therefore, reasoned the judge, the exclusion applied only if the vehicle had been supplied for the use of both plaintiff and his wife. According to the judge, since the wife did not have regular use of the County-owned vehicle, that vehicle was not excluded under the terms of plaintiff's own insurance policy.

While we disagree with the motion judge's reasoning on this point, we reverse for another reason. As noted by the judge, employer- furnished vehicles that are provided to an employee on the job and for transportation to and from home have been treated in varying ways by the courts. New Jersey precedent on this issue is somewhat unresolved.

We set forth, in a non-employment context, the purpose of the "regular use" policy coverage exclusion:

An exclusionary clause ... manifests an intention on the part of the insurer to protect itself from a situation whereby an insured could purchase a policy covering one automobile and be covered without qualification as to all automobiles available for his use. Thus, this type of policy extends coverage to the casual or occasional driving of automobiles other than those specifically covered without payment of an extra premium, while excluding the use of automobiles which are furnished for the regular use of the insured. The clause in question represents an attempt on the part of the insurer to strike a balance between the desire of the insured to be covered, even though not always using the owned automobile, and its right to receive payment of premiums based upon the risk presented by the number of automobiles operated.

[American Casualty Co. v. Lattanzio, 78 N.J.Super. 404, 410-11, 188 A.2d 637 (1963) (citations omitted) (emphasis added).]

The interpretation of the "regular use" exclusion in the company-owned vehicle context then came before the Supreme Court in Butler v. Bonner & Barnewall, Inc., 56 N.J. 567, 267 A.2d 527 (1970). There, the insured's wife became involved in an accident while, for personal purposes, she was driving a vehicle owned by the insured's employer. Id. at 570, 267 A.2d 527. The Court found the facts insufficiently developed to determine whether the employer's vehicle was furnished for the insured's regular use, id. at 576, 267 A.2d 527, noting:

At the outset the issue arises whether "regular use" for insurance coverage purposes should be held to encompass anything less than unrestricted day-to-day use of an employee when the employee is allowed to keep the car at his home. Even if "regular use" should be defined abstractly as not requiring completely unrestricted use, there would still be the matter of the intended extent of the "regular use" in this case.

[Id. at 576, 267 A.2d 527.]

The Court then explained the factual inconsistencies in the evidence concerning whether the employer knew of or permitted the insured to use the vehicle for personal as well as business purposes. Id. at 576-77, 267 A.2d 527. The Court's comments concerning the "unrestricted day-to-day use" or the "intended extent of the 'regular use' " seem to imply, as in the out-of-state cases cited earlier, that "regular use" is determined by reference to the purpose for which the vehicle was furnished and to whether the use for that purpose is unrestricted.

In Venters v. Selected Risks Insurance Co., 120 N.J.Super. 549, 295 A.2d 373 (App.Div.1972), we similarly concluded that an insured operating a bus within the scope of his employment was precluded from recovering under his personal automobile liability policy because the accident occurred in a vehicle that was furnished for his regular use. Id. at 552, 295 A.2d 373. This court rejected the insured's argument that the vehicle was not furnished for his regular use because he was permitted to operate the bus only during working hours. Id. at 551-52, 295 A.2d 373. This again reinforces the interpretation of "regular use" as relating to the unrestricted use of a non-owned vehicle for the primary purpose for which it was furnished.

In Di Orio v. New Jersey Manuf. Ins. Co., 63 N.J. 597, 311 A.2d 378 (1973) [Di Orio I ], the Court addressed a situation where the insured's son had been involved in an accident while driving the insured's partnership's vehicle for personal purposes. The Court discussed the definitions of "regular use" adopted by other courts, including "uninterrupted normal use for all purposes ... without limitation as to use[,]" "principal use as distinguished from a casual or incidental use[,]" "use of the particular automobile ... at such times as [desired,]" "use at will[.]" The Court concluded that the vehicle was not furnished for the regular use of the son, reasoning that there was an absence of any general right to use the vehicle whenever the son pleased. Id. at 602-05, 311 A.2d 378. Regarding the insured, however, the Court decided:

We know the car was used in the partnership business and that in driving to and from work the father was pursuing that business. But we do not know the extent, if any, of his use of the car for personal ends and hence we cannot weigh whether he had a general right of use within the definitions we quoted above.

[Di Orio I, 63 N.J. at 608, 311 A.2d 378.]

The Court then remanded the case for further factual determinations concerning the extent of the insured's personal use of the vehicle. Ibid. The Court's statements could have been interpreted to mean that "regular use" requires (1) a general right to use for both business and personal purposes, or (2) a general right to use the vehicle for the purpose for which it was used at the time of the accident.

In Di Orio v. New Jersey Manuf. Ins. Co., 79 N.J. 257, 398 A.2d 1274 (1979) [Di Orio II ], the Supreme Court revisited these issues and found the policy language at issue to be unambiguous. Id. at 268, 398 A.2d 1274 (citing Rider v. Lynch, 42 N.J. 465, 201 A.2d 561 (1964) and Cox v. Santoro, 98 N.J.Super. 360, 364-65, 237 A.2d 491 (App.Div.1967), and distinguishing Butler v. Bonner & Barnewall, Inc., supra, 56 N.J. at 577, 267 A.2d 527). The Court also announced that it was the furnishing of the vehicle for the named insured's regular use, not the driver's regular use, which was the pertinent inquiry. Id. at 267-70, 398 A.2d 1274. In determining that the vehicle was furnished for the insured's regular use, the Court specifically stated that regardless of the evidence of the business use, the vehicle was furnished for the regular use of the insured for both business and non-business purposes. The Court noted that therefore it need not resolve the issue of "whether a use beyond the 'regular use' for which a car is furnished remains within the policy coverage." Id. at 266-67, 398 A.2d 1274 (quoting Di Orio I, 63 N.J. at 608, 311 A.2d 378). The Court then stated that "[t]he [trial court's] decision rested on the weight of the evidence presented with respect to [the insured's] non-business use; and while his actual use in that respect may not have been frequent, his right to use the [vehicle] for any purpose ... was entirely unrestricted...." Id. at 266-67, 398 A.2d 1274. It should again be noted that the accident in Di Orio I & II...