NEW JERSEY MFRS. v. Hardy

• Decision Date: 17 January 2003
• Citation: 357 N.J. Super. 19,813 A.2d 1230
• Parties: NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Plaintiff-Appellant, v. Bernie J. HARDY, Kason Cheeks and Haveron Total Health, Defendants-Respondents.
• Court: New Jersey Superior Court

813 A.2d 1230

357 N.J. Super. 19

NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Plaintiff-Appellant, v. Bernie J. HARDY, Kason Cheeks and Haveron Total Health, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued October 9, 2002.

Decided January 17, 2003.

Robert F. Cox argued the cause for appellant (McCreedy and Cox, attorneys; Mr. Cox, on the brief).

Scott J. Marum argued the cause for respondents (Andrew H. Graulich, attorney and on the brief).

Before Judges KING, WEFING and LISA.

The opinion of the court was delivered by WEFING, J.A.D.

Kason Cheeks is employed as a police officer by the City of Newark. At approximately 3:40 a.m. on February 10, 2001, while on duty, Cheeks was injured in an automobile accident. He and his partner were on patrol. His partner was driving the marked police cruiser when it was struck in the rear by an intoxicated driver. Cheeks sustained injuries to his neck and his back.

Cheeks' father, Bernie J. Hardy, held an automobile insurance policy issued by New Jersey Manufacturers Insurance Company ("Manufacturers") that was in effect on the date of the accident. Although not entirely clear on the record before us, for purposes of this appeal, Manufacturers does not dispute that Cheeks qualifies as a resident relative under the terms of that policy.

In addition to filing a claim for workers' compensation benefits, Cheeks also sought Personal Injury Protection (PIP) benefits under his father's policy with Manufacturers, specifically, the cost of the chiropractic care he received at a chiropractic facility known as Haveron Total Health ("Haveron"). Manufacturers declined PIP coverage on the ground that the Newark police cruiser was not a "private passenger automobile."

Cheeks then assigned his claim against Manufacturers to Haveron, which sought arbitration of its outstanding bills. Manufacturers, in turn, filed a declaratory judgment action seeking a determination that Cheeks was not entitled to PIP benefits under his father's policy. It named as defendants Hardy, Cheeks and Haveron. The matter was presented to the trial court on cross motions for summary judgment. The trial court found for defendants. Manufacturers appeals and we reverse. N.J.S.A. 39:6A-4 mandates PIP coverage for covered individuals "who sustain bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile." N.J.S.A. 39:6A-2 defines an automobile in the following manner:

[A] private passenger automobile of a private passenger or station wagon type that is owned or hired and is neither used as a public or livery conveyance for passengers nor rented to others with a driver; and a motor vehicle with a pickup body, a delivery sedan, a van, or a panel truck or camper type vehicle used for recreational purposes owned by an individual or by husband and wife who are residents of the same household, not customarily used in the occupation, profession or business of the insured other than farming or ranching.

What constitutes a "private passenger automobile" has been litigated in a variety of contexts. Wilno v. N.J. Mfrs. Ins. Co., 180 N.J.Super. 146, 434 A.2d 605 (App.Div. 1981), rev'd on dissent, 89 N.J. 252, 445 A.2d 713 (1982)

(finding a dune buggy, which had been modified for off-road use, not to be a private passenger automobile and passenger injured when the vehicle overturned not entitled to PIP benefits under her own policy); Wagner v. Transamerica Ins. Co., 167 N.J.Super. 25, 400 A.2d 497 (App.Div.),

certif. denied,

81 N.J. 60, 404 A.2d 1159 (1979) (finding an automobile owned by a dealership and being demonstrated by a salesman to customer at time of accident to be a private passenger automobile, but injured salesman's claim for PIP benefits barred by the collateral source rule, N.J.S.A. 39:6A-6).

No one factor is determinative. The manner in which the title is held is not dispositive. Simon v. CNA Insurance Co., 225 N.J.Super. 606, 543 A.2d 110 (App. Div.), certif. denied, 113 N.J. 350, 550 A.2d 461 (1988) (finding that a governmentowned vehicle can be a private passenger automobile). Nor is the manner of use at the time of the incident controlling. CSC Ins. Services v. Graves, 293 N.J.Super. 244, 679 A.2d 1244 (Law Div.1996) (finding a passenger van used for day care center transportation to be a private passenger automobile for purposes of PIP, since it was not used as public or livery conveyance or rented to others with a driver).

Research has not disclosed a reported New Jersey case that has analyzed whether a police cruiser can be considered a private passenger automobile. Other courts have concluded, however, that police cars are not private passenger automobiles. See Couch on Insurance 3d, § 116.3 (2002) ("Police cars have not been included in the definition of `private passenger automobiles' generally on the ground that such vehicles are publicly owned, and specially designed and built"); Annotation, What Constitutes "Private Passenger Automobile" in Insurance Policy Provisions Defining Risks Covered or Excepted, 11 A.L.R. 475, § 6 (1982).

In Christy v. City of Newark, 102 N.J. 598, 510 A.2d 22 (1986), the Supreme Court held that a Newark police officer, injured by a hit-and-run driver who hit the police car he was driving while on duty, was entitled to collect uninsured motorist benefits under N.J.S.A. 39:6A-14. That statute, however, making uninsured motorist coverage compulsory, refers simply to "automobile," without the modifying restriction of "private passenger."

Although the nature of the modifications involved in this particular instance are not set forth in the record before us, we consider it clear that police cruisers are modified to make them suitable for the hazards they routinely encounter. Closter Serv. Stat. Inc. v. Ridgefield Pk. Comm'rs., 99 N.J.Super. 69, 238 A.2d 504 (App.Div. 1968). The use to which police patrol cars are put by police officers is inherently risky. Fielder v. Stonack, 141 N.J. 101, 115, 661 A.2d 231 (1995) (noting that police motor vehicle chases involve inherent risk of injury); Tice v. Cramer, 133 N.J. 347, 383, 627 A.2d 1090 (1993) (O'Hern, J., concurring) (recognizing that high-speed vehicle pursuits are possibly the most dangerous of all ordinary police activities). Because of the "increased demands of police service," independent organizations test different vehicles to assist different agencies with their buying decisions. Bulletin, National Law Enforcement and Corrections Technology Center, November 2001, available at http://www.justnet.org/pdffiles/ msp2002bulletin.pdf. They note that "regular production passenger vehicles not specifically designed for police service" can provide "inadequate performance." Ibid.

In determining whether this Newark police cruiser should be considered a private passenger automobile, thereby triggering PIP coverage for Officer Cheeks under his father's policy, the underlying purposes of PIP coverage should be kept firmly in mind. "The No Fault Act is social legislation intended to provide insureds with the prompt payment of medical bills, lost wages and other such expenses without making them await the outcome of protracted litigation." Amiano v. Ohio Casualty Ins. Co., 85 N.J. 85, 90, 424 A.2d 1179 (1981); Stevenson v. State Farm Indem. Co., 311 N.J.Super. 363, 709 A.2d 1359 (App.Div.1998).

Those same laudable purposes, however, are fully achieved by the workers' compensation benefits available to Cheeks. We perceive no reason in logic or policy why Cheeks should be able to transfer the cost of his work-related injuries to Manufacturers, thus, entirely circumventing the statutory forum available to him.

The judgment under review is reversed.

LISA, J.A.D., dissenting.

In my view, the 1999 Ford Crown Victoria owned and used by the City of Newark as a marked police car is an "automobile" within the meaning of N.J.S.A. 39:6A-2a. Because Kason Cheeks was injured while occupying that vehicle, he is entitled to pursue collection of personal injury protection (PIP) benefits from New Jersey Manufacturers Insurance Company (NJM) under its policy issued to Cheeks' father, with whom Cheeks resided at the time of the accident. N.J.S.A. 39:6A-4. Therefore, I dissent.

PIP benefits are payable to covered individuals "who sustain bodily injury as a result of an accident while occupying... an automobile... ." N.J.S.A. 39:6A-4. An "automobile," for these purposes, is defined as "a private passenger automobile of a private passenger or station wagon type that is owned or hired and is neither used as a public or livery conveyance for passengers nor rented to others with a driver;..." N.J.S.A. 39:6A-2a.

Of course a Ford Crown Victoria is a typical sedan which fits within this definition. The question here is whether because of its ownership and use by a public entity as a marked police car, or because of some modifications it may possess, it is divested of that status for PIP purposes.

Ownership by a public entity does not detract from the vehicle's status as a private passenger automobile. Simon v. CNA Ins. Co., 225 N.J.Super. 606, 613-15, 543 A.2d 110 (App.Div.),certif. denied, 113 N.J. 350, 550 A.2d 461 (1988). We reasoned that the word "private" pertains to the type of vehicle, not its ownership, id. at 614, 543 A.2d 110, and concluded that if the Legislature intended to exclude all government-owned vehicles from the No-Fault Act's coverage, it would have expressly done so. Id. at 614-15, 543 A.2d 110. In our analysis, we relied upon our earlier holding in Wagner v. Transamerica Ins. Co., 167 N.J.Super. 25, 400 A.2d 497 (App.Div.)certif. denied,81 N.J. 60, 404 A.2d 1159 (1979), that a vehicle that otherwise fits the "private passenger automobile" definition is not outside the definition because it is used for commercial purposes in an occupation or business. Simon v. CNA Ins. Co., supra, 225 N.J.Super. at 613-14, 543 A 2d 110.

The statutory...