Superior Court of New Jersey, Appellate Division.

The CONNECTICUT INDEMNITY COMPANY, Plaintiff-Respondent/Cross Appellant,

v.

Grover DOWDY, Joanne Taylor, Robert Taylor, Anthony J. Nardini, Richard C. Zabowski, Joanne Benites, A.J. Benites, Alexis Benites, Luonogo Trucking Inc., Defendants,

and New Jersey Manufacturers Insurance Company, Defendant-Appellant/Cross Respondent.

The Connecticut Indemnity Company, Plaintiff-Respondent/Cross Appellant,

v.

Grover Dowdy, Luongo Trucking, Inc., and Nicole A. Wrobel, Defendants,

andNew Jersey Manufacturers Insurance Company, Defendant-Appellant/Cross Respondent.

Argued April 25, 2006.

Decided Oct. 24, 2006.

 

Before Judges HOENS and SELTZER.

PER CURIAM.

This opinion considers cross-appeals from an order for summary judgment adjudicating a coverage dispute between plaintiff, The Connecticut Indemnity Company (Connecticut), and defendant, New Jersey Manufacturers Insurance Company (NJM), respecting two accidents. The motion judge determined that Connecticut was responsible for coverage to its insured, Grover Dowdy, for an accident occurring in 2001 and that NJM was responsible for coverage to Dowdy, whom it also insured, for an accident occurring in 2002. We determine that Connecticut was responsible to provide coverage for both accidents and, therefore, affirm the order in favor of NJM and reverse the order in favor of Connecticut.

 

The facts, presented by cross-motions for summary judgment, are undisputed. Grover Dowdy is the owner of a truck (sometimes referred to as a “tractor”) utilized to haul a trailer containing goods in intrastate traffic. In accordance with trucking industry custom, Dowdy leased his vehicle to a motor carrier, Luongo Trucking Inc. (Luongo). Luongo and Dowdy then entered into an agreement defining their relationship. That agreement described Dowdy as an independent contractor who would entertain offers from Luongo to haul material. The agreement specifically provided that it was not to be construed to obligate Luongo to tender trailer loads of freight for hauling to Dowdy or to obligate Dowdy to accept any offer made by Luongo. Dowdy was obligated to furnish a motor vehicle for the hauling and Luongo was to designate the place at which he should pick up and accept trailer loads of freight. Since the parties began their arrangement in 1998, Dowdy, although not legally required to do so, accepted work exclusively from Luongo.

 

 

Different considerations would apply if Dowdy were engaged in interstate hauling. See Felbrant v. Able, 80 N.J.Super. 587 (App.Div.1963).

 

The “lease” in effect at the time of the accidents did not specifically provide for a lease of the vehicle, but all parties have treated the document as a lease. In August 2002, a new writing was executed that explicitly created a lease and provided that Luongo would not provide insurance coverage when “Dowdy is driving into work and home from work[.]”

 

Luongo obtained insurance coverage for itself and Dowdy through NJM. The entire policy is not contained in the record before us, but the parties do not dispute the judge’s characterization of it as “covering Luongo Trucking and covering Mr. Dowdy while he was engaged in the business of Luongo Trucking.”

 

Dowdy also obtained a “non-trucking automobile liability insurance” policy from Connecticut. That policy excluded coverage for Dowdy’s tractor “while used in the business of anyone to whom the [tractor] is rented.” On appeal, Connecticut concedes that its “policy provides coverage only when the insured tractor is used in personal, non-trucking activity.”

 

The judge reasoned that the coverage question “boils down to whether or not Dowdy was engaged in the business of Luongo at the time the accident occurred.”  He then proceeded to consider the circumstances surrounding the two accidents in which Dowdy had been involved.

 

 

Connecticut, for the first time, now argues that if it is held responsible, NJM must bear an equal responsibility by virtue of the provisions of the NJM policy. That argument was not advanced before the motion judge, where all parties focused on whether Dowdy was “engaged in the business of Luongo[.]” We will not consider this argument for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We express no opinion as to the whether the issue may be raised by either a Rule 4:49-2 motion for reconsideration of, or a Rule 4:50-1 motion for relief from, the judgment we direct to be entered.

 

On July 29, 2001, Dowdy had completed his last run and had dropped off an empty trailer at the Luongo yard in Kearny. Although he might have left his truck there as well, he had declined to do so because Luongo charged a daily fee for leaving the truck at Luongo’s yard. Accordingly, instead of using a personal vehicle to travel from his home to the Luongo yard, Dowdy used the truck which, perforce, he also drove home at the end of the day. The accident occurred as he left the yard and entered the abutting highway.

 

On May 30, 2002, he was involved in another accident. This time, however, he was on his way from his home to the Luongo yard. He was driving the truck that would ultimately be used to haul the trailer to be picked up at Luongo’s yard. Dowdy had, that morning, received a call from Luongo tendering the offer of a load. He was on his way to accept that tender, although he had not communicated directly his intention to do so.

 

The judge analyzed the 2001 accident by saying:

[T]he question is whether or not at the time of the accident he was engaged in the business of Luongo. He had completed his loads. He had dropped off the trailer. His assignment was complete and he was heading home.

In light of the fact that he was an independent contractor, that he was not under the control or dispatch of Luongo at the time, [under the] circumstances of this case, there would be coverage under the [Connecticut] policy.

 

As to the May 30, 2002 accident, the judge found that:clearly Dowdy was acting under dispatch from Luongo. He had received his instructions from Luongo and, pursuant to those instructions, he was on his way to pick up the trailer in accordance with his agreement with Luongo. In fact, he was en route to pick up his trailer. Under those circumstances, there would be no coverage under the Connecticut Indemnity policy.

 

The judge therefore entered an order, dated July 23, 2004, granting NJM’s motion, denying Connecticut’s motion and compelling Connecticut to provide coverage for the 2001 accident. He also granted Connecticut’s motion, denied NJM’s motion and compelled NJM to provide coverage for the 2002 accident. Because Connecticut had begun the defense of the 2002 accident, the order also compelled NJM to reimburse any fees and costs expended by Connecticut in that defense. The amount of the fees was ultimately set at $11,414.54 by order dated December 9, 2004. These cross-appeals followed.

 

Since the judge’s decision was reached on cross-motions for summary judgment, we apply the same standard to resolve the issue as that employed by the motion judge, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App.Div.), certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge’s interpretation of the law. Manalapan Realty L.P v. Twp. Committee, 140 N.J. 366, 378 (1995).

 

The parties have spent substantial effort in parsing the facts to determine whether Dowdy was Luongo’s servant or an independent contractor. We believe that analysis puts too fine a point on the dispute. While the distinction is necessary when determining if Luongo might be held responsible for Dowdy’s tort, the issue here is not one of imputed liability. It is, instead, one of insurance coverage that, as the judge appropriately noted, turns on whether Dowdy, at the time of an accident, was “engaged in the business of Luongo.” We see no reason why a policy provision could not insure an independent contractor who was, at the time of an accident, furthering the interests of one to whom he was contracted, even if the extent of that activity would not impose liability on the contracting party.

 

 

The judge correctly did not stop after determining that Dowdy was an independent contractor. He continued to determine if Dowdy was covered by the NJM policy. We agree with the judge’s conclusion that Dowdy was an independent contractor.

 

Nevertheless, under the circumstances and in light of the agreement of the parties that the coverage issue rests on the question of whether Dowdy was “engaged in the business of Luongo,” we think it helpful to consider analogous doctrines that give content to that phrase. In particular, the doctrine of respondeat superior assists in analyzing this issue. That doctrine requires an analysis of whether “at the time of the employee’s negligence, he or she can be said to be serving an interest of the employer along with a personal interest.” Carter v. Reynolds, 175 N.J. 402, 414 (2003). “Generally, an employee who is ‘going to’ or ‘coming from’ his or her place of employment is not considered to be acting within the scope of employment.” Id. at 412. Carter explains that the rationale supporting the rule relates to the lack of control and the essential unfairness of imposing liability upon an employer who derives no benefit from the commute. Id. at 413.

 

Exceptions to the rule have developed to cover those situations in which (a) an employee is engaged in a special errand on the employer’s behalf; (b) the employer requires the employee to drive his or her personal vehicle to work so that the vehicle may be used for work-related tasks; or (c) the employee is on call. See Mannes v. Healey, 306 N.J.Super. 351, 354-55 (App.Div.1997). Those exceptions cover cases “in which the employee is said to be serving the interest of the employer along with a personal interest.” Carter v. Reynolds, supra, 175 N.J. at 414 (citing Gilborges v. Wallace, 78 N.J. 342, 351 (1978)).

 

Utilizing this analogous reasoning, we conclude the judge was clearly correct with respect to the 2001 accident. Dowdy was leaving Luongo’s property. He served no interest of Luongo and it is hard to see how Luongo’s business interests were furthered by Dowdy driving home.

 

Relying on the same reasoning, although the question is somewhat closer with respect to the 2002 accident, we find no support for the judge’s conclusion that Luongo’s business interests were furthered by plaintiff driving to the yard. Clearly, the judge erred by concluding that Dowdy was under dispatch. The contract between Luongo and Dowdy provided that Luongo could not require Dowdy to accept the tendered load. Dowdy was not “on call” and could have returned to his home at any time before accepting the tender.

 

For the same reason, Luongo would benefit from the commute only to the extent Dowdy actually arrived at the site with the vehicle needed to haul the trailer located at the yard. Moreover, Luongo did not require Dowdy to drive the truck to its workplace since Dowdy might have left the vehicle there and commuted in his own car. That he chose instead to store the truck at his home and use it to commute to the yard was coincidental. In short, Dowdy was not required to drive the truck to work and Luongo received no benefit unless Dowdy actually arrived with the truck.

 

Connecticut’s argument that, as a practical matter, Dowdy was unlikely to refuse the tendered load is, in the final analysis, unpersuasive. His right to refuse, which he might have exercised until arrival at the Luongo yard, controls.

 

The cases cited by Connecticut are distinguishable. In each case, the owner of the vehicle involved in an accident had no option other than to report for work and to bring a specified vehicle. As we have suggested, Dowdy’s contract permitted him to refuse to report and his arrangement with Luongo gave him the option of commuting with his truck or storing the truck and commuting by other means. On balance, we believe the aborted commute to Luongo’s yard did not sufficiently benefit Luongo so as to support a finding that, while commuting, Dowdy was “engaged in the business of Luongo Trucking.”

 

Since Connecticut was required to defend Luongo in the claim arising from the 2002 accident, the order compelling NJM to reimburse fees for that defense must also be reversed.

 

In sum we affirm the order of July 23, 2004, insofar as it required Connecticut to provide a defense for the 2001 accident; reverse it insofar as it required NJM to provide a defense for the 2002 accident; and remand for the entry of an order granting NJM’s motion for judgment determining Connecticut to be responsible for a defense for the 2002 accident. We also reverse the December 9, 2004, order respecting fees.

 

Affirmed in part; reversed in part and remanded.