Sciascia v. American Ins. Co.

• Decision Date: 02 February 1982
• Citation: 183 N.J.Super. 352,443 A.2d 1118
• Parties: Anthony J. SCIASCIA, Sr., as Administrator for the Heirs at Law of Anthony J. Sciascia, Jr., Deceased, and as Administrator of the Estate of Anthony J. Sciascia, Jr., Deceased, and Individually, Plaintiff, v. The AMERICAN INSURANCE COMPANY, a Corporation of the State of New Jersey, Defendant and Third-Party Plaintiff, v. The NEWARK INSURANCE COMPANY (Improperly pleaded as Royal Globe InsuranceCompanies), Third-Party Defendant.
• Court: New Jersey Superior Court

Page 352

183 N.J.Super. 352

443 A.2d 1118

Anthony J. SCIASCIA, Sr., as Administrator for the Heirs at

Law of Anthony J. Sciascia, Jr., Deceased, and as Administrator of the Estate of Anthony J. Sciascia, Jr., Deceased, and Individually, Plaintiff, v. The AMERICAN INSURANCE COMPANY, a Corporation of the State

of New Jersey, Defendant and Third-Party Plaintiff, v. The NEWARK INSURANCE COMPANY (Improperly pleaded as Royal

Globe InsuranceCompanies), Third-Party Defendant.

Superior Court of New Jersey, Law Division Morris County.

Decided Feb. 2, 1982.

John R. Lanza, Flemington, for plaintiff (Winget, Keating, Thatcher & Lanza, Flemington, attorneys; John R. Lanza, Flemington, on the brief).

Kevin A. Couch, Secaucus, for defendant and third-party plaintiff (O'Donnell, McCord & Leslie, Morristown, attorneys; John J. O'Donnell, Morristown, on the brief).

Robert W. Nevins, Jr., Union, for third-party defendant (Haggerty & Donohue, Union, attorneys).

STEIN, J. S. C.

Plaintiff's summary judgment motion presents a novel question concerning the extent of uninsured motorist (UM) coverage. Here such coverage is sought for an intentional act-the deliberate firing of a shotgun by a passenger in a then moving automobile of an uninsured owner-operator. One of these shots struck and killed the insured.

The essential facts are not in dispute. On the evening of May 12, 1977 decedent and a female companion drove to Harmony Dam in Harmony Township, Warren County. Decedent parked between two other cars. Other people, mostly young men, were standing outside the other cars parked along the road.

Two brothers, Stires and Counterman, had been involved in some fighting at the dam earlier that evening. They had capped a day of drinking with a visit to the dam. Shortly after their arrival a fight broke out because one of the brothers had been throwing rocks at the windshields of parked cars. After the fight broke up, and as the brothers were making their retreat, one of the youths with whom they had been scuffling threw a rock and smashed the windshield of Counterman's car.

Stires and Counterman retreated from the scene in Counterman's auto. They drove to the house of Counterman's grandmother, a trip which took about eight to ten minutes, where they obtained a shotgun. They intended to return to Harmony Dam to shoot out the windshield of the automobile of the young man who had thrown a rock through Counterman's windshield.

Counterman then drove back to the dam by a somewhat shorter route. Stires sat on the sill of the car with his torso outside, aiming the shotgun over the roof of the car. As Counterman drove up the road at about 30 miles an hour, Stires fired two shots at a parked car. Decedent and his companion were standing outside this vehicle. The first shot struck decedent's friend, and the second shot struck and fatally wounded decedent. Both Counterman and Stires deny seeing the two people outside the parked vehicle when the shots were fired.

Counterman was an uninsured motorist at the time of the accident. Decedent's automobile liability policy provided uninsured motorist coverage in standard language form. The policy states in part:

The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured highway vehicle because of bodily injury or property damage, caused by accident and arising out of the ownership, maintenance or use of such uninsured highway vehicle... (Emphasis supplied)

This policy provision is simply a restatement of N.J.S.A. 17:28-1.1, which requires that all automobile liability insurance policies must include coverage to the insured for bodily injury, sickness, or death recoverable from owners and operators of uninsured automobiles

... caused by accident and arising out of the ownership, maintenance or use of such uninsured ... automobile. (N.J.S.A. 17:28-1.1, as amended, L.1972, c. 204, § 1)

Interpretation of this policy provision requires this analysis: Was there an accident? If so, did the accident arise out of ownership, operation or use of Counterman's vehicle?

Was There an Accident?

The UM endorsement to decedent's policy does not define the word "accident." Reference must be made to case law.

Decisional law in New Jersey defines an "accident" as an injury-causing event, one which is unforeseen, unusual and unexpected. Korfin v. Continental Cas. Co., 5 N.J. 154, 158, 74 A.2d 312 (1950). Simply put, an accident is an unexpected, unintended happening.

For the purposes of evaluating UM coverage, the question of whether an incident or event is an "accident" must be considered from the viewpoint of the insured. UM coverage differs from liability insurance coverage, the purpose of which is to indemnify the insured for damages which must be paid to others as a result of the insured's tortious conduct. UM coverage is first-party coverage. Its purpose is to compensate the insured or his legal representatives for losses sustained by the insured.

For the purposes of determining coverage under a policy of liability insurance, the traditional view is that an intentional wrong is not considered to be an accident. The rationale for this principle is that a person should not be indemnified for loss or damage resulting from his own intentional wrongdoing. Ruvolo v. American Cas. Co., 39 N.J. 490, 496, 189 A.2d 204 (1963).

This principle has no application in evaluating UM coverage. This is not a claim seeking recovery or indemnification under a policy of liability insurance. The claim made is for wrongful death benefits under a policy affording uninsured motorist coverage to the decedent insured. The distinction is critical. Here, an innocent victim, not the tortfeasor, is the insured. Decedent insured paid the premiums and his legal representative seeks recovery from the carrier which accepted these premiums-and which agreed to provide its insured with protection from certain wrongful acts of the financially irresponsible motorist.

There is no public policy which mandates or even suggests that, in UM coverage questions, an incident should be viewed through the eyes of the wrongdoer to determine if the insured was the victim of an "accident." The tortfeasor is not a party to the contract of insurance. His intent or purpose is immaterial. He will not benefit from his wrongful conduct. The insured's UM carrier should not be permitted to benefit from an inappropriate interpretation of the word "accident" contained in its policy of insurance. So far as uninsured motorist coverage is concerned, the question of whether there was an "accident" must be evaluated from the viewpoint of the insured.

There is no reported New Jersey decision. Other jurisdictions have held that in UM coverage analysis the question of whether an accident occurred must be viewed from the insured's perspective. See Annotation, "Coverage under Uninsured Motorist Clause of Injury Inflicted Intentionally," 72 A.L.R.3d 1156, 1161 (1976). These cases usually involve situations where the uninsured motorist intentionally drove his vehicle into the UM policyholder. Leatherby Ins. Co. v. Willoughby, 315 So.2d 553 (Fla.App.1975); Celina Mut. Ins. Co. v. Saylor, 35 Ohio Misc. 81, 301 N.E.2d 721 (C.P.1973); Davis v. State Farm Mut. Ins. Co., 264 Or. 547, 507 P.2d 9 (Sup.Ct.1973).

In Celina, the court stated:

... To look through the eyes of the uninsured rather than the insured in this factual situation would require an unconscionable twisting of the obvious purpose of purchasing insurance coverage. (301 N.E.2d at 723)

From the viewpoint of the insured, decedent's death must be considered to have resulted from an accident. The...