RICHARD G. BREBNER VS. GOVERNMENT EMPLOYEES INSURANCE COMPANY (L-1550-18, CAMDEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0974-19T2
RICHARD G. BREBNER and
ROSEANN BREBNER,
Plaintiffs-Appellants,
v.
GOVERNMENT EMPLOYEES
INSURANCE COMPANY, 1
Defendant-Respondent,
and
JENNIFER KOLASINSKI,
claims manager,
Defendant.
____________________________
Submitted January 6, 2021 – Decided January 21, 2021
Before Judges Whipple, Rose, and Firko.
1
Improperly pled as Government Employees Insurance Company, General
Insurance Company, GEICO Indemnity Company, GEICO Casualty Company,
GEICO Advantage Insurance Company, GEICO Choice Insurance Company,
GEICO Secure Insurance Company, a/t/a/d/b/a GEICO.
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).
PER CURIAM
In this insurance coverage dispute, plaintiff Richard G. Brebner 2 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.
2
We refer to Richard G. Brebner as plaintiff, although we recognize Roseann
Brebner, his wife, has filed a derivative claim for loss of consortium.
A-0974-19T2
2
Plaintiff now appeals from the motion judge's September 27, 2019 order. 3
Acknowledging 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
3
The order provided on appeal only includes the judge's decision granting
defendant's summary judgment motion, but the record reveals plaintiff filed a
cross-motion for summary judgment, seeking coverage under the GEICO policy.
In addition, the parties have not provided any information concerning Jennifer
Kolasinski's disposition before the trial court; she is not a party to this appeal.
A-0974-19T2
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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.
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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 provide coverage "to
the full extent that any fair interpretation will allow." Longobardi v. Chubb Ins.
Co., 121 N.J. 530, 537 (1990) (alteration in original) (citing Kievit v. Loyal
Protective Life Ins. Co., 34 N.J. 475, 482 (1961)). Thus, it follows that coverage
clauses should be interpreted liberally, while exclusionary provisions should be
strictly construed. Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 429
(App. Div. 2004); see also Gibson v. Callaghan, 158 N.J. 662, 671 (1999).
The burden is on the insurer to demonstrate the claim falls within the
purview of the exclusion. Am. Motorists Ins. Co. v. L-C-A Sales Co., 155 N.J.
29, 41 (1998). However, exclusionary provisions are presumptively valid if they
are "specific, plain, clear, prominent, and not contrary to public policy."
Homesite Ins. Co. v. Hindman, 413 N.J. Super. 41, 46 (App. Div. 2010) (citing
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Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 95 (1997)). Accordingly, "[i]f
the policy terms are clear, courts should interpret the policy as written and avoid
writing a better insurance policy than the one purchased." President v. Jenkins,
180 N.J. 550, 562 (2004).
On appeal, plaintiff reprises the arguments he raised before the motion
judge, contending our Supreme Court's decisions in DiOrio v. New Jersey
Manufacturers Insurance Co., Inc., 63 N.J. 597 (1973) (DiOrio I) and DiOrio v.
New Jersey Manufacturers Insurance Co., Inc., 79 N.J. 257 (1979) (DiOrio II),
support his argument. Plaintiff argues the judge instead erroneously relied on
our decision in Fiscor v. Atlantic County Board of Chosen Freeholders, 293 N.J.
Super. 19 (App. Div. 1996). We disagree and conclude the judge's decision was
consistent with existing precedent.
In DiOrio I, our Supreme Court noted with respect to liability coverage
"[t]he word 'furnished' connotes much more than permission to use." 63 N.J. at
603. The term "connotes some general right to use, something more than use
with permission on occasions, whether recurring or isolated." In DiOrio I, the
operator of a company-owned vehicle was the son of one of the owners at the
time of the accident. Id. at 605. But the son's use was "wholly occasional and
depended on the father's permission . . . ." Ibid. The car therefore was not
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furnished for the son's regular use. Ibid. The Court remanded for resolution of
two issues: whether the father regularly used the vehicle, and whether the
father's regular use of the vehicle triggered the "regular use" coverage exclusion.
Id. at 607-08.
Following remand, the matter returned to the Supreme Court on the same
two questions. DiOrio II, 79 N.J. at 261-62. Because there were no restrictions
as to "how and why and when" the father could use the vehicle, the Court found
ample support that the company-owned car was furnished to the father for his
"regular use" within the meaning of the policy, which precluded coverage. Id.
at 269-70.
Other cases interpreting the meaning of the term underscore that "regular
use" is not limited to situations in which the vehicle is used both for business
and personal uses, or based on the frequency of use. In Venters v. Selected
Risks Insurance Co., 120 N.J. Super. 549 (App. Div. 1972), we rejected the
motion judge's summary judgment determination that the plaintiff bus driver
was not furnished a bus for "regular use" where the plaintiff did not drive the
same bus every day. We found it did not matter whether a specific bus – or
various buses – were assigned to the plaintiff. Id. at 552. The bus was furnished
by his employer for the plaintiff's regular use. Ibid.A-0974-19T2
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Twenty-two years later, we decided Malouf v. Aetna Casualty & Surety
Company, 275 N.J. Super. 23 (App. Div. 1994), which was cited by the motion
judge in the present matter. In Malouf, we held the frequency of the vehicle's
use was not the central issue. "The question [wa]s not whether [the plain tiff]
frequently used the vehicle but whether it was 'furnished' for his regular use."
Ibid. (citation omitted).
Two years later, we decided Fiscor, 293 N.J. Super. 19, which the motion
judge primarily relied upon to support his decision in the present matter. In
Fiscor, 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.
Id. at 21-22. We held, "[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 (emphasis added).
We are satisfied from our review of these cases that the exclusion applied
here. It was undisputed that plaintiff's employer furnished the Kia for plaintiff's
use during plaintiff's work hours, and that use was not restricted for business
purposes. Indeed, plaintiff had a general right to use the Kia while working,
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when needed, twenty-four hours per day, including weekends. The Kia was used
daily, not occasionally. Notably, the accident occurred while plaintiff was using
the car while driving home from work. These are precisely the characteristics
other courts have recognized that constitute the furnishing of a vehicle for the
"regular use" of the insured.
Affirmed.
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