                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Alth ough it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0830-17T1

MARIA RUFFA, as Guardian
Ad Litem of G.R., a minor, and
MARIA RUFFA, individually,

          Plaintiff-Appellants,

v.

ANTONIO RUFFA, an individual,
CAFÉ PIAZZA, a business entity,
SAPORE DI CALABRIA, LLC, d/b/a
CP CATERINGS, a business entity,

          Defendants,

and

FARMERS INSURANCE COMPANY
OF FLEMINGTON, a business entity,

     Defendant-Respondent.
________________________________

                    Argued October 16, 2018 – Decided October 30, 2018

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Somerset County, Docket No. L-0402-16.
              Marc D. Portlock argued the cause for appellants
              (Stathis & Leonardis, LLC, attorneys; Marc D.
              Portlock, on the brief).

              Anthony P. Pasquarelli argued the cause for respondent
              (Sweet Pasquarelli, PC, attorneys; Kenneth C. Ho, on
              the brief).

PER CURIAM

        In this insurance coverage dispute, plaintiffs Maria Ruffa, individually

and as guardian ad litem for her minor son, G.R.1, appeal from the Law

Division's September 1, 2017 order dismissing their complaint against defendant

Farmers Insurance Company of Flemington (Farmers). Plaintiffs sued Farmers

to obtain insurance coverage for injuries sustained by then four-year old G.R.

Because the Farmers policy clearly excludes coverage for G.R.'s injuries, we

affirm.

        On September 12, 2009, defendant Antonio Ruffa (Ruffa), G.R.'s father,

purchased a 2005 Chevrolet G3500 box truck (box truck) for his catering

business, defendant Sapore di Calabria LLC, d/b/a CP Caterings (Sapore). Ruffa

bought the box truck to deliver food and transport employees to catering events.

A hydraulic lift gate, called a "Tommy Gate", was permanently attached to the

vehicle. The Tommy Gate contained warnings that explicitly proscribed riding


1
    We use initials for G.R. to protect his privacy.
                                                                        A-0830-17T1
                                          2
on its platform. Additionally, the owner's manual directed against using the

Tommy Gate as a wheelchair or personnel lift.

      On September 13, 2009, Ruffa was inside the cargo area of the truck

installing shelving when G.R. accidentally operated the Tommy Gate and

sustained an injury to his right arm after it got caught between the gate's metal

prongs. At the time of the injury, the truck was parked in the lot of Ruffa's other

business, defendant Café Piazza.

      Ruffa purchased automobile coverage for the box truck from Allstate

Insurance Company on September 14, 2009, the day after the incident.

Consequently, the Allstate policy did not cover the claim as it was not in effect

at the time of G.R.'s accident.

      Farmers, however, issued a Businessowners Policy (Farmers policy) to

Sapore and Café Piazza that was effective on September 13, 2009. In general,

the Farmers policy excludes coverage for bodily injury claims arising out of the

operation of an automobile. Automobile is defined as "any land motor vehicle

. . . designed for travel on public roads, including any equipment or machinery

attached to such vehicle . . . [and not including] vehicles covered . . . as mobile

equipment."




                                                                           A-0830-17T1
                                        3
       Two provisions of the Farmers policy provide limited coverage for losses

involving an automobile.      First, under the incidental automobile coverage

provision, coverage is extended for bodily injury claims arising out of the

operation of "[c]herry pickers 2 and similar devices used to raise/lower workers"

if those devices are "permanently attached to an automobile." Second, pursuant

to the incidental mobile equipment coverage section, coverage is provided for

bodily injury claims "arising out of . . . [the] use of mobile equipment." Mobile

equipment is in turn defined as "solely land vehicles (including any equipment

or machinery permanently attached to, or forming an integral part of, the

vehicle) . . . used solely at your premises."

      Farmers filed two summary judgment motions which the court denied on

December 16, 2016, and July 21, 2017. In opposing the motions, plaintiffs

claimed that the Tommy Gate was a "similar device" to a cherry picker.

Plaintiffs further argued that Farmers's restrictive interpretation of the incidental

automobile coverage provision was contrary to their reasonable coverage

expectations.




2
  A cherry picker is a "[a] maneuverable vertical boom with an open bucket or
cage at the end from which a worker can perform work high off the ground."
Webster's II New College Dictionary 197 (3d ed. 2005).
                                                                             A-0830-17T1
                                         4
      On September 1, 2017, Farmers sought reconsideration of the July 21,

2017 order and again moved for summary judgment.             After hearing oral

arguments, the court concluded that the "language of the [incidental automobile

coverage] exclusion" unambiguously excepted coverage for the accident and

granted Farmers's motion. This appeal followed.

      Plaintiffs raise three arguments on appeal. First, plaintiffs maintain, as

they did in the trial court, that because the Tommy Gate was permanently

attached to the box truck and is a "similar device" to a cherry picker, the court

should have found coverage under the incidental automobile coverage provision.

Second, they argue, for the first time on appeal, that at the time of G.R.'s

accident, the box truck was "solely a land vehicle" being used at Café Piazza's

premises, and thus G.R.'s injuries were covered under the incidental mobile

equipment coverage provision. Finally, plaintiffs claim that the trial court

improperly interpreted the incidental automobile coverage as an exclusion and

failed to interpret the policy consistent with their reasonable expectations.

Having considered these arguments in light of the record and applicable legal

principles, we conclude that the Farmers policy does not cover G.R.'s injuries.

      We apply the same standard as the trial court when reviewing a grant of

summary judgment. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016).


                                                                         A-0830-17T1
                                       5
Pursuant to Rule 4:46-2(c), a court is required to grant summary judgment "if

the pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to a judgment or

order as a matter of law."

      If there are no genuine and material factual questions, we then determine

whether the trial court made a correct ruling on the law. Walker v. Alt. Chrysler

Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987). The interpretation and

construction of an insurance contract is a matter of law that we review de novo.

Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 428 (App. Div. 2004).

      We consider Farmers policy in the context of well-established principles.

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, 372 N.J. Super. at 429.




                                                                           A-0830-17T1
                                        6
      "If 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). "A 'genuine ambiguity' arises only 'where

the phrasing of the policy is so confusing that the average policyholder cannot

make out the boundaries of coverage.'" Progressive Cas. Ins. Co. v. Hurley, 166

N.J. 260, 274 (2001) (quoting Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 247

(1979)). If there is an ambiguity in the insurance contract, we "interpret the

contract to comport with the reasonable expectations of the insured, even if a

close reading of the written text reveals a contrary meaning."         Zacarias v.

Allstate Ins. Co., 168 N.J. 590, 595 (2001).

      Guided by these principles, we are not persuaded by plaintiffs' argument

that the Tommy Gate is a "similar device" to a "cherry picker" as it is not used

to "raise/lower workers." In fact, the warnings affixed to the Tommy Gate and

the instructions in its owner's manual specifically direct against such use.

Interpreting the incidental automobile coverage provision to insure G.R.'s

injuries would be providing plaintiffs with a better policy than what was

bargained for by the parties. See President, 180 N.J. at 562.




                                                                           A-0830-17T1
                                        7
      Next, we turn to plaintiffs' argument that G.R.'s claim is covered under

the incidental mobile equipment coverage provision.          That claim is both

procedurally and substantively deficient.

      Procedurally, defendant did not raise that argument in opposition to

Farmers's summary judgment or reconsideration motions.              Consequently,

because the issue does not go to the jurisdiction of the court nor does it concern

a matter of substantial public interest, we could decline to consider it on appeal.

See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

      In any event, the argument is substantively without merit. G.R.'s injuries

did not "aris[e] out of . . . [the] use of mobile equipment" because the box truck

was not "solely [a] land vehicle" that was being used exclusively at Café Piazza.

It was undisputed that Ruffa purchased the truck to deliver food and personnel

for Sapore's catering jobs, bought automobile insurance for the vehicle, and

consistently used the truck for deliveries after the accident. Rather than "mobile

equipment," the box truck falls squarely within the definition of an automobile

as it was designed for travel on public roads.

      We also disagree that the court committed reversible error because it

interpreted the incidental automobile coverage provision as an exclusion, rather

than a grant of coverage. Although the court mistakenly characterized the


                                                                           A-0830-17T1
                                        8
provision as an exclusion, the error was harmless because as we have already

determined after our de novo review, the provision is unambiguous and does not

cover plaintiffs' claims. Similarly, because the Farmers policy is clear and an

average policyholder can "make out the boundaries of coverage," Weedo 81 N.J.

at 247, we reject plaintiffs' argument that the court failed to interpret the Farmers

policy consistent with their reasonable expectations.

      Affirmed.




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