Lindstrom by Lindstrom v. Hanover Ins. Co. on Behalf of New Jersey Auto. Full Ins. Underwriting Ass'n

• Decision Date: 28 December 1993
• Citation: 269 N.J.Super. 339,635 A.2d 559
• Parties: Kurt LINDSTROM, by his g/a/l George K. LINDSTROM and George K. Lindstrom, Individually, Plaintiffs-Appellants, v. The HANOVER INSURANCE COMPANY on Behalf of the NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOCIATION, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 339

269 N.J.Super. 339

635 A.2d 559

Kurt LINDSTROM, by his g/a/l George K. LINDSTROM and George K. Lindstrom, Individually, Plaintiffs-Appellants, v.The HANOVER INSURANCE COMPANY on Behalf of the NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOCIATION, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Oct. 20, 1993.

Decided Dec. 28, 1993.

Patricia D. Connelly, Ocean, for plaintiffs-appellants(Shebell & Schibell, attorneys; Ms. Connelly, on the brief).

Mark S. Hochman, Wall, for defendant-respondent(Gertler & Hanna, attorneys; Mr. Hochman, on the brief).

Before Judges R.S. COHEN, D'ANNUNZIO and WALLACE.

The opinion of the court was delivered by

D'ANNUNZIO, J.A.D.

Kurt Lindstrom was rendered a quadriplegic as the result of a gunshot wound.The bullet was fired from within an automobile as it drove past a crowd, which included Lindstrom, attending an outdoor party.At oral argument, each party conceded that the firing of the weapon was an intentional criminal act and that the perpetrator was apprehended and successfully prosecuted.Kurt Lindstrom now appeals from a judgment denying him personal injury protection benefits under an automobile insurance policy issued by defendantHanover Insurance Company.We affirm.

N.J.S.A. 39:6A-4 defines eligibility for personal injury protection (PIP) benefits.It provides for benefits

without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustained bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile, or as a pedestrian, caused by an automobile or by an object propelled by or from an automobile, to other persons sustaining bodily injury while occupying, entering into, alighting from or using the automobile of the named insured, with the permission of the named insured, and to pedestrians, sustaining bodily injury caused by the named insured's automobile or struck by an object propelled by or from such automobile.(Emphasis added.)

As an insured under defendant's policy, Lindstrom was a covered pedestrian.Thus, he is entitled to benefits if his gunshot injuries were "caused by an automobile or by an object propelled by or from an automobile," within the meaning of the PIP statute.The trial court ruled that the nexus between the injury and the automobile was insufficient to bring the loss within PIP coverage.

We have addressed the application of PIP coverage to injuries caused by criminal acts in several cases arising before and after the 1983amendments to N.J.S.A. 39:6A-4.

In Morgan v. Prudential Ins. Co., 242 N.J.Super. 638, 577 A.2d 1300(App.Div.), certif. denied, 122 N.J. 370, 585 A.2d 377(1990), decedent's husband shot her to death as she sat in the driver's seat of her car.We affirmed the denial of PIP coverage because we concluded "that there was no legal nexus between the shooting and the kind of risk" covered by an automobile policy.Id.242 N.J.Super. at 641, 577 A.2d 1300.

Similarly, Vasil v. Zullo, 238 N.J.Super. 572, 570 A.2d 464(App.Div.1990), involved the stabbing death of a passenger who had left the automobile in which he was riding to confront the occupants of another vehicle regarding a traffic dispute.We affirmed the denial of PIP benefits and uninsured motorist coverage.We concluded that the "stabbing did not occur while he was 'occupying, entering into, alighting from or using an automobile' " and, therefore, non-pedestrian PIP coverage did not apply.We also concluded that pedestrian coverage was not applicable because the injury was not caused by an automobile.We further observed that there was no evidence that decedent was killed by an object propelled from an automobile.Id. at 577-78, 570 A.2d 464.

We also denied PIP coverage to the plaintiff in Uzcatequi-Gaymon v. N.J. Mfrs. Ins. Co., 193 N.J.Super. 71, 472 A.2d 163(App.Div.1984).Plaintiffs' decedent was shot and killed during an attempted robbery of his car keys and car.At the time of the shooting, decedent was in a phone booth with his car keys in his hand and his car parked nearby.We ruled that "while theft of the automobile may have been the ultimate object of the attack, from a legal viewpoint the automobile was not the cause of decedent's injuries and death."Id. at 73, 472 A.2d 163.We observed that the automobile "was merely an attending circumstance."Ibid.

In Sciascia v. American Ins. Co., 183 N.J.Super. 352, 443 A.2d 1118(Law Div.1982), aff'd o.b., 189 N.J.Super. 236, 459 A.2d 1198(App.Div.1983), Judge Stein, sitting in the Law Division, denied uninsured motorist benefits for a death arising out of a drive-by shooting, ruling that "[t]here was no substantial connection between the insured's death and the use of the uninsured automobile" by the perpetrators.Id.183 N.J.Super. at 359, 443 A.2d 1118.Judge Stein stated:

More specifically, this unfortunate occurrence, although unforeseen and unexpected by decedent insured, was not one which, in the contemplation of the parties to the UM contract, was a natural and probable incident or consequence of the use of an automobile by an uninsured motorist.It was not a risk against which the insurer and the insured might reasonably expect that protection would be afforded under a policy providing uninsured motorist coverage.

[Ibid.]

See alsoCerullo v. Allstate Ins. Co., 236 N.J.Super. 372, 565 A.2d 1125(App.Div.1989)(uninsured motorist benefits not available for injuries resulting from an assault on insured by another motorist).

"Central" to the coverage issue in this case"is the concept that the act that causes the injury, although not foreseen or expected, nevertheless be, in the contemplation of the parties to the insurance contract, a 'natural or reasonable incident or consequence of the use of the automobile, and thus a risk against which they might reasonably expect those insured under the policy would be protected.' "Smaul v. Irvington General Hosp., 108 N.J. 474, 478, 530 A.2d 1251(1987) (quoting Westchester Fire Ins. Co. v. Continental Ins. Co., 126 N.J.Super. 29, 38, 312 A.2d 664(App.Div.1973), aff'd o.b., 65 N.J. 152, 319 A.2d 732(1974).

The plaintiff in Smaul was injured...