SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this opinion, the Court determines whether, at the time of the accident, plaintiff was occupying his employer=s vehicle and therefore was insured under the terms of his employer=s commercial automobile insurance policy.

On February 15, 1994, plaintiff was performing his job as a warehouse manager at his employer=s warehouse. A UPS truck arrived at the warehouse and the driver delivered packages. Shortly after the UPS truck left the warehouse, plaintiff discovered that a package was missing. Plaintiff used a company van to locate the UPS truck so that he could retrieve the missing package. After plaintiff found the UPS truck, he double-parked a few inches behind it, exited the van and, with the permission of the UPS driver, entered the UPS truck to search for the package. At trial, plaintiff testified that he believed the company van was still running when he left it to approach the UPS truck. Unable to locate the package, plaintiff exited from the driver=s side door of the UPS truck and began walking toward the company van. While he was walking along the side of the UPS truck and was a few inches away from the company van, he was struck by an approaching third vehicle that pinned him to the UPS truck and caused serious bodily injuries.

After determining that the vehicle that struck him was uninsured, plaintiff made a claim on his employer=s commercial automobile carrier, defendant Travelers Indemnity Insurance Co. (Travelers), seeking uninsured motorist (UM) arbitration. Under the policy, the term Ainsured@ included anyone Aoccupying a covered auto@ and the policy defined Aoccupying@ as Ain, upon, getting in, on, out or off@ of a vehicle. Travelers denied coverage on the ground that the plaintiff did not qualify as an Ainsured@ because he was not Aoccupying@ his employer=s van.

Plaintiff sought judgment declaring that Travelers had a duty to provide him with uninsured motorist coverage and a duty to engage in arbitration to determine the amount it owed. The trial court ruled in favor of Travelers, finding that plaintiff was not occupying his employer=s van at the time of the accident.

Over a dissent, the Appellate Division affirmed the trial court=s decision. In his dissenting opinion, Judge Stern contended that plaintiff was Aoccupying@ the vehicle within the meaning of relevant precedent and that there was a Asufficient nexus@ between the vehicle and the accident to require coverage.

HELD : The Court reverses the decision of the Appellate Division substantially for the reasons expressed by Judge Stern in his dissenting opinion.

1. The Court reaffirms the principles that it set forth in Mondelli v. State Farm Mutual Automobile Insurance Co., 102 N.J. 67, 172 (1986), in which it held that the meaning of the term Aoccupying@ in a UM clause must be determined on a case-by-case basis, depending on the facts of the accident and the use of the vehicle, and that A[m]ere coincidental connection between the accident and some touching of the car would not be enough.@ In order to obtain UM coverage where occupancy is in issue, a plaintiff is required to establish a substantial nexus between the vehicle and the injury sustained.

The judgment of the Appellate Division is REVERSED, and the matter is remanded for arbitration of the amount owing under the policy.

JUSTICE VERNIERO, dissenting, is of the view that the plaintiff did not Aoccupy@ the insured vehicle at the time of the accident as that term is understood in the everyday, commonly understood sense of things.
THE CHIEF JUSTICE and JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA AND ZAZZALI join in the Court = s opinion. JUSTICE VERNIERO filed a separate dissenting opinion.

SUPREME COURT OF NEW JERSEY
A- 43 September Term 2001

FRANKLIN TORRES,

Plaintiff-Appellant,

v.

THE TRAVELERS INDEMNITY COMPANY,

Defendant-Respondent.

Argued February 13, 2002 – Decided March 14, 2002

On appeal from the Superior Court, Appellate Division.    

Gerald R. Salerno argued the cause for appellant (Aronsohn Weiner, attorneys; Lisa Okin, on the brief).

Stephen C. Cahir argued the cause for respondent (William E. Staehle, attorney).

PER CURIAM

    The facts underlying this appeal are undisputed. On the morning of February 15, 1994, plaintiff Franklin Torres was working in his capacity as a warehouse manager for Cornell Surgical Company (Cornell). A UPS truck came to Cornell’s warehouse to drop off packages. Almost immediately after that truck left the warehouse, Torres discovered that a certain package was missing.
    In accordance with his employment duties, Torres used a Cornell van to search for the UPS driver and the missing package. Having located the UPS truck double-parked around the corner, Torres stopped the Cornell van a few inches behind it. Torres then exited the van, and, with the UPS driver’s permission, entered the delivery truck to search for the missing package with the driver. At trial, Torres stated that he believed that the Cornell van was still running when he exited it.
    Because Torres was unable to find the missing package in the UPS truck, he then exited from the driver’s side door of the truck and began walking back towards the Cornell van. While walking in the street along the side of the UPS truck, and a few inches away from the front of the Cornell van, Torres saw another truck approaching him. He raised his right hand in an attempt to get the driver of the third vehicle to stop so that he could enter the Cornell van and avoid being hit. However, the “box portion” of the third vehicle accidentally struck Torres, pinning him between the third vehicle and the UPS truck. As a result of that accident, Torres alleges that he suffered serious bodily injuries.
After determining that the vehicle that struck him was uninsured, Torres made a claim on Cornell’s commercial automobile carrier, defendant Travelers Indemnity Insurance Co. (Travelers), seeking uninsured motorist (UM) arbitration. Cornell’s policy with Travelers contained a New Jersey uninsured and underinsured motorist coverage endorsement that stated the following:
    B WE WILL PAY
We will pay all sums the insured is legally entitled to recover as compensation damages from the owner or driver of an uninsured motor vehicle or underinsured motor vehicle. The damages must result from bodily injury sustained by the insured, or property damage caused by an accident. The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the uninsured motor vehicle or underinsured motor vehicle.

Under that policy, the term “insured” included “[a]nyone else occupying a covered auto or a temporary substitute for a covered auto.” In addition, the policy defined “occupying” as “in, upon, getting in, on, out or off.” All parties agree that the Cornell van was a “covered auto.” Travelers denied coverage on the ground that Torres did not qualify as an “insured” because he was not “occupying” the Cornell van.
    Torres sought judgment declaring that Travelers had a duty to provide him with uninsured motorist coverage and was required to engage in arbitration to determine the amount that it owed. Travelers answered, denying the allegations of the complaint. After a bench trial, the trial court ruled in favor of Travelers, finding that, at the time of the accident, Torres was not occupying the Cornell van.
    Torres appealed and the Appellate Division affirmed. Judge Stern dissented on the ground that Torres was “occupying” the insured vehicle within the meaning of relevant precedent and that there was a “sufficient nexus” between the vehicle and the accident to require coverage. We agree with Judge Stern and reverse, substantially for the reasons expressed in his thorough and thoughtful opinion.
We add only this. In Mondelli v. State Farm Mutual Automobile Insurance Co., 102 N.J. 167, 172 (1986), we held that the meaning of the term “occupying” in a UM clause must be determined on a case-by-case basis, depending on the facts of the accident and the use of the vehicle, and that “[m]ere coincidental connection between the accident and some touching of the car would not be enough.” Id. at 172. We reaffirm those principles here. In the final analysis, as Judge Stern aptly pointed out, in order to obtain UM coverage where occupancy is in issue, a plaintiff is required to establish a substantial nexus between the insured vehicle and the injury sustained. See Guarantee Ins. Co. v. Anderson, 585 F.Supp. 408 (E.D. Pa. 1984) (applying New Jersey law); De Almeida v. General Acc. Ins. Co. of America, 314 N.J. Super. 312 (App. Div. 1998), cert. denied, 157 N.J. 541 (1998); Salamone v. Regency Palace, 337 N.J. Super. 374 (Law Div. 2000); Cynthia M. Craig & Daniel J. Pomeroy, New Jersey Auto Insurance Law – No Fault (PIP), Uninsured & Underinsured Motorists 1 (2002). That nexus was proved in this case.
    The judgment of the Appellate Division is reversed for the reasons stated in the opinion of Judge Stern. The matter is remanded for arbitration of the amount owing under the policy.
    CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA, and ZAZZALI join in the Court’s opinion. JUSTICE VERNIERO filed a separate dissenting opinion.

SUPREME COURT OF NEW JERSEY
A- 43 September Term 2001

FRANKLIN TORRES,

Plaintiff-Appellant,

v.

THE TRAVELERS INDEMNITY COMPANY,

Defendant-Respondent.

VERNIERO, J., dissenting.
In the everyday, commonly understood sense of things, plaintiff did not “occupy” the insured vehicle at the time of his unfortunate accident. To the extent that the cases cited by the majority justify a contrary conclusion, they should be limited to their unique facts or overruled. Those cases require courts to engage in a form of line drawing that has no discernible boundaries. I acknowledge that the Court’s disposition may have the salutary effect of reinstating this one plaintiff’s claim. In the last analysis, however, today’s holding reflects a missed opportunity to infuse a measure of common sense into an unpredictable area of our law. I respectfully dissent.
OLE Object Here