Carpio v. Chicchetti

KYUNG H. CARPIO a/k/a JOY CARPIO, and MICHAEL B. CARPIO, Plaintiffs-Appellants, v. NICOLE A. CHICCHETTI, an individual and JOSEPH M. CALAVANO, an individual, Defendants-Respondents.

ALLSTATE NEW JERSEY PROPERTY &CASUALTY INSURANCE COMPANY, Plaintiff-Appellant, v. JOSEPH M. CALAVANO and LIBERTY MUTUAL INSURANCE COMPANY, Defendants-Respondents, and NICOLE A. CHICCHETTI, Defendant/Third-Party Plaintiff-Appellant, v. THE ESPELAND GROUP, LLC, Third-Party Defendant, and KYUNG H. CARPIO a/k/a JOY CARPIO, and MICHAEL B. CARPIO, Defendant/Third-Party Plaintiff-Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Third-Party Defendant.

ALLSTATE NEW JERSEY PROPERTY & CASUALTY INSURANCE COMPANY, Plaintiff-Respondent, v. JOSEPH M. CALAVANO and LIBERTY MUTUAL INSURANCE COMPANY, Defendants-Respondents, and NICOLE A. CHICCHETTI, Defendant/Third-Party Plaintiff-Appellant, v. THE ESPELAND GROUP, LLC, Third-Party Defendant, and KYUNG H. CARPIO a/k/a JOY CARPIO, and MICHAEL B. CARPIO, Defendant/Third-Party Plaintiff-Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Third-Party Defendant.

Nos. A-1786-19, A-1866-19, A-2049-19

Superior Court of New Jersey, Appellate Division

June 29, 2022

This opinion shall not "constitute precedent or be binding upon any court." Although 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.

Argued April 28, 2021

On appeal from the Superior Court of New Jersey, Law Division Union County, Docket Nos. L-3563-15 and L-1932-17.

Michael F. Lombardi argued the cause for appellants/ respondents Kyung H. Carpio a/k/a Joy Carpio and Michael B Carpio (Lombardi &Lombardi, PA, attorneys; Michael F. Lombardi and Nicole M.

Lombardi on the briefs.)

Glenn R. Moran argued the cause for appellant/ respondent Allstate New Jersey Property &Casualty Company (Leary Bride Mergner &Bongiovanni, PA, attorneys; Glenn R. Moran, on the briefs.)

Anthony V. DiAntonio argued the cause for appellant/ respondent Nicole A. Chicchetti (Robinson Burns DiAntonio, LLC, attorneys; Anthony V. DiAntonio, of counsel; Brian Brenner, on the briefs).

William P. Krauss argued the cause for respondent Liberty Mutual Insurance Company (Connell Foley LLP, attorneys; William P. Krauss, of counsel and on the briefs). The opinion of the court was delivered by ACCURSO, J.A.D.

Before Judges Accurso, Vernoia and Enright.

OPINION

ACCURSO, J.A.D.

These three consolidated appeals arise out of two separate lawsuits consolidated for purposes of discovery, both stemming from a minor car accident in Scotch Plains. In that accident, Nicole A. Chicchetti, driving a

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1998 Lincoln Town Car owned by Joseph M. Calavano, rear-ended a car driven by plaintiff Kyung H. Carpio. Although Carpio refused medical treatment at the scene and both cars were driven away, an arbitrator subsequently awarded her $1,500,000 in damages, deeming Chicchetti and Calavano completely at fault. They rejected the award, seeking a trial de novo.

Chicchetti, a recent college graduate working part-time for Calavano's car service business, was insured under her parents' $250,000/$500,000 Liberty Mutual auto policy and their $4,000,000 Liberty Mutual personal umbrella policy. Calavano's Town Car was insured under an Allstate policy with $250,000/$500,000 coverage limits.

A Law Division judge granted Liberty Mutual summary judgment on its auto policy, which excluded coverage for "liability arising out of the ownership or operation of a vehicle while it is being used as a public or livery conveyance," as well as on its umbrella policy, which excluded coverage for "business pursuits, "unless the liability was "covered by an underlying policy." A different judge denied summary judgment to Allstate, finding its policy exclusion for injury or damage "arising out of the use of an insured auto while used to carry persons or property for a charge, or the use of any auto an insured person is driving while available for hire by the public," was not

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triggered. He accordingly granted motions by Chicchetti and Carpio ordering Allstate to defend and indemnify Chicchetti to the extent of its $250,000 policy limits.

In A-1786-19, Carpio appeals the grant of summary judgment to Liberty Mutual. Chicchetti does the same in A-2049-19. In A-1866-19, Allstate appeals from the denial of its motion and the grant of summary judgment to Chicchetti and Carpio. We reverse the grant of summary judgment to Liberty Mutual and find on the undisputed facts in the motion record that the Town Car driven by Chicchetti was not "being used" as a public or livery conveyance at the time of the accident. Because the business pursuits exclusion in the Liberty Mutual umbrella policy does not apply when the liability is covered by an underlying policy, including Chicchetti's auto policy, we further find there is coverage under the umbrella policy as well. We affirm the denial of summary judgment to Allstate, but we reverse the grant of summary judgment to Chicchetti and Carpio, finding disputed facts as to whether the Town Car was "available for hire by the public," at the time of the accident precluded summary judgment on the Allstate policy.

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Turning first to the Liberty Mutual policy, Liberty, Chicchetti and Carpio all agree Chicchetti is an "insured" under both the auto and umbrella policies. The auto policy, however, contains the following exclusion:

A. We [Liberty Mutual] do not provide Liability Coverage for any "insured": ....

5. For that "insured's" liability arising out of the . . . operation of a vehicle while it is being used as a public or livery conveyance.

The policy does not define the phrases "while it is being used" or "public or livery conveyance."

The undisputed facts on the Liberty Mutual cross-motions established Chicchetti began driving for Calavano, an acquaintance of her father, on a part-time basis about three months before the accident while she looked for full-time work. Calavano operated a taxi and limousine service, A Better Ride Car Service LLC, in Westfield. According to Calavano, he was the sole employee of the business, which utilized a 2002 Town Car registered as a limousine and bearing omnibus livery or "OL" license plates. He claimed Chicchetti, whom he considered a sort of "probationary" employee he was trying out, drove that car on only a couple of occasions. Calavano ordinarily provided Chicchetti his personal vehicle, the 1998 Town Car she was driving

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at the time of the accident, to pick up and ferry specific passengers as he assigned. She would pick up his Town Car at his home where he would provide her the keys and a hand-written list of fares, with names and addresses. Chicchetti would only transport fares who had scheduled a ride through Calavano.

When she "was not picking up or dropping off people," Chicchetti was free to use the Town Car to "go to the store, ""get lunch," or "go home." She also remained "on-call" to Calavano, to pick up another fare. After Chicchetti completed her fares for the day, she sometimes drove the car back to Calavano's house but would sometimes continue to drive it for her own personal use. Calavano sometimes called Chicchetti to pick up additional people if she continued to use the car, but she could also decline his request to pick up another fare. Chicchetti generally worked three days a week, six hours a day. Calavano paid her in cash on a per trip basis. She was not paid to be "on-call."

On the date of the accident, Chicchetti picked up the 1998 Town Car from Calavano's house in the morning. Calavano claimed the business's 2002 Town Car was in the shop that day, and he was taking the day off. Chicchetti drove directly to pick up and drop off a scheduled customer, her only

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scheduled fare of the day. Afterwards, she drove to the Bagel Chateau in Westfield for coffee and a bagel. The accident happened after she left the bagel shop, when she was alone in the Town Car with no next assignment. She did not use the car to pick up passengers after the accident.

Applying the exclusion to those facts, the Law Division judge concluded Chicchetti used the 1998 Town Car only on days she was working for Calavano, and that she was "never in possession of the car unless she was on duty - a day that she had a fare, or two, or was on-call to see if there were additional fares." The judge stated she did not "see how Chicchetti was operating the Town Car for anything but a livery business. That's the only reason she was able to put herself inside [the car]."

The judge rejected the argument made by Chicchetti and Carpio that the exclusion did not apply because at the time of the accident, Chicchetti was not operating the Town Car "while it [was] being used as a . . . livery conveyance, "declaring it "more of an effort to create some ambiguity where none exists." The judge found Chicchetti was "using that car while in the business of . . . picking up and depositing passengers, even if she didn't have a passenger with her at that time." Accordingly, the judge granted summary judgment to Liberty Mutual on its auto policy based on the livery exclusion

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and granted it summary judgment on its umbrella policy pursuant to that policy's business pursuits exclusion, which excludes coverage for injury "arising out of business pursuits or the use of business property, unless the liability is covered by an underlying policy."

Chicchetti and Carpio appeal, arguing the phrase "while it is being used" in the auto exclusion barring coverage for "operation of a vehicle while it is being used as a public or livery conveyance" refers to the vehicle's use at the specific time the accident occurred, or is, at best, ambiguous, requiring it to be interpreted in a...