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Thompson v. Potenza12/5/2003
Dr. Clifford Hochberg, another chiropractor. Since at least 1990, she had complained to Dr. Hochberg of pain in her neck and back. Her last visit was on May 19, 1997.
In her deposition, Thompson claimed that after the accident, she had difficulty doing regular housework and lifting heavy items. She continued to do the shopping, housework, cooking, and child rearing, without assistance. Also, she went to the gym five days a week to use the treadmill and light weights.
I.
Plaintiffs contend that the defendants are not entitled to the protection of the verbal threshold because the van did not meet the statutory definition of an automobile.
The New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 et seq., allows an eligible person a complete defense from tortious non-economic damages arising"out of the ownership, operation, maintenance or use of such automobile...." N.J.S.A. 39:6A-8.
The statute defines an automobile 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; and a motor vehicle with a pickup body, a delivery sedan, a van, or a panel truck or a 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. [N.J.S.A. 39:6A-2a (emphasis added).]
Because a van is involved, we must construe the statutory meaning of"customarily" and"insured." The statute does not define those terms and plaintiffs argue that because the van was used once a week for an unknown period in the business of Central Jersey Courier it should be considered customarily used in the business of the insured.
The purpose of the statute is reparation and it is to be"liberally construed so as to effect the purpose thereof." N.J.S.A. 39:6A-16. See Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 323 (2000); New Jersey Coalition of Health Care Prof'ls, Inc. v. New Jersey Dept. of Banking and Ins., Div. of Ins., 323 N.J. Super. 207, 216 (App. Div.), certif. denied, 162 N.J. 485 (1999).
The term"insured" is not limited to the named insured but includes the operator of the vehicle at the time of the accident. See Estate of Leeman v. Eagle Ins. Co., 309 N.J. Super. 525 (App. Div. 1998). In Leeman, we held that a pick-up truck was covered as an automobile under the statute because the decedent's use"was no more associated with his occupation, profession, or business than if he had simply availed himself of public transportation." Id. at 534.
In that case, the decedent borrowed a truck from his employer. The court determined that the truck was an automobile because decedent driver was using it to commute to and from work. The court did not consider the use of the truck by the named insured (presumably decedent's employer) who used the truck commercially in its business. The Leeman holding indicates that the"insured" is not necessarily the owner of the vehicle or the named insured of the vehicle involved in the accident. In short, the vehicle was considered an automobile because the driver was using it for personal purposes.
The statute similarly classifies a van and a pick-up truck under the automobile definition. Gerard Nicolini is the named insured under the insurance policy for the van in this case. Because plaintiffs reside at the same location, Mary Ann R. Nicolini is deemed a named insured by statute. See N.J.S.A. 39:6A-2g. Potenza can be considered the"insured" because he wa
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