Stevenson v. State Farm Indem. Co.

• Decision Date: 14 May 1998
• Citation: Stevenson v. State Farm Indem. Co., 709 A.2d 1359, 311 N.J.Super. 363 (N.J. Super. App. Div. 1998)
• Parties: David STEVENSON, 1 Plaintiff-Appellant, v. STATE FARM INDEMNITY COMPANY, Defendant-Third-Party Plaintiff-Respondent, v. UNSATISFIED CLAIM AND JUDGMENT FUND, Third-Party Defendant. John PONTER, Jr.,1 Plaintiff-Respondent, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant-Third-Party Plaintiff-Appellant, v. UNSATISFIED CLAIM AND JUDGMENT FUND, Third-Party Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 363

311 N.J.Super. 363

709 A.2d 1359

David STEVENSON, ¹Plaintiff-Appellant, v.STATE FARM INDEMNITY COMPANY, Defendant-Third-PartyPlaintiff-Respondent, v.UNSATISFIED CLAIM AND JUDGMENT FUND, Third-Party Defendant.

John PONTER, Jr.,1Plaintiff-Respondent, v.PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant-Third-Party Plaintiff-Appellant, v.UNSATISFIED CLAIM AND JUDGMENT FUND, Third-Party Defendant.

Superior Court of New Jersey Appellate Division.

Argued March 18, 1998.

Decided May 14, 1998.

Howard A. Gross, Cherry Hill, for appellant in No. A-2861-96T5(Gross and Gross, attorneys; Mr. Gross, on the brief).

Randi S. Greenberg, Piscataway, for appellant in No. A-4332-96T2(Robert A. Auerbach, Morganville, attorney; Ms. Greenberg, on the brief).

Elizabeth C. Chierici, Moorestown, for respondent in No. A-2861-96T5(Chierici, Chierici & Smith, attorneys; Ms. Chierici, on the brief).

Milton W. Brown, Collings Lake, for respondent in No. A-4332-96T2.

Before Judges KING, MUIR, Jr. and KESTIN.

The opinion of the court was delivered by

KING, P.J.A.D.

I

The issue in this appeal is whether an insurance carrier must provide personal injury protection (PIP) benefits, pursuant to N.J.S.A. 39:6A-4, ² to claimants who sustained bodily injuries during assaultive carjacking incidents.The appeal concerns two consolidated cases which arise from similar factual patterns--the assailants shot the drivers while both drivers occupied their cars.We conclude that these cases fulfill the requisites for coverage: "bodily injury as a result of an accident sustained while occupying an automobile," within the interpretation of Lindstrom v. Hanover Ins. Co., 138 N.J. 242, 247, 649 A.2d 1272(1994)(4-3 decision), and Smaul v. Irvington Gen. Hosp., 108 N.J. 474, 478, 530 A.2d 1251(1987).

While we conclude that plaintiffs, victims of the two carjacking incidents, are entitled to PIP coverage under the circumstances of these assaults in their vehicles, we cannot decide on this record if the statutory defense of criminal participation in N.J.S.A. 39:6A-7 is available to the defendant insurance carriers, State Farm Indemnity Company and Prudential Property and Casualty Company.On this issue, we remand for further consideration.

IIPonter v. Prudential Property & Casualty, A-4332-96T2

About 6:30 p.m. on November 27, 1994plaintiff Ponter drove his mother's 1985 Chevrolet Blazer from his home in Paulsboro into the City of Camden to buy marijuana.He was alone.Prudential insured the family automobile under the name of his mother, Bessie Ponter.

Ponter had been to Camden previously to buy drugs.He knew where to go.He proceeded to a stop sign at an unknown intersection and bought a bag of marijuana for $10 from an individual who approached his car for that purpose.Ponter then intended to return home.

Ponter testified at his deposition that after he drove about a block, a young male jumped into the car and asked for a ride home.The young male asked Ponter why he came to Camden.Ponter replied that he had purchased marijuana.The male offered to get Ponter a bigger bag even though Ponter had no more money.Ponter then drove with the male to 780 Sycamore Street.The male left the car on the passenger's side and went into an apartment.

Ponter waited inside his car for several minutes.The male then reentered Ponter's car on the front passenger's side and put "two little, green bags" into Ponter's hand.Ponter then realized the bags contained cocaine or crack.He said he did not want them.The male never spoke to Ponter.After adjusting himself in the car seat so that he faced Ponter, the male pulled out a gun and fired three shots into Ponter's head.Two witnesses reported seeing the male suspect drive the vehicle away from the scene at a high rate of speed.

At 8:53 p.m. police responded to a report of an overturned vehicle at 8th and Sycamore Streets in Camden.While en route, residents reported a male (Ponter), bleeding from the head, lying in the street on the corner of 8th and Warnock Streets, about one-half block from the overturned vehicle.Ponter was taken to the Trauma Center at Cooper Medical Center with serious injuries.His urine screen tested positive for cocaine and opiates.He later was transferred to McGee Rehabilitation Center in Philadelphia for treatment of brain injuries.

After excellent investigative work, on March 13, 1995 the Camden police arrested A.K., a juvenile who attended Camden High School.Police initially charged A.K., age sixteen, as a juvenile with: carjacking, contrary to N.J.S.A. 2C:15-2; criminal attempt (murder), contrary to N.J.S.A. 2C:5-1; aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); and unlawful possession of a firearm, contrary to N.J.S.A. 2C:39-5b. A.K. pled guilty to the juvenile charges of carjacking and attempted murder; the other two charges were merged with the more serious crimes.On August 28, 1995 the Family Court judge sentenced A.K. to the Youth Reception Center at Jamesburg for an indeterminate term not to exceed eight years.

On April 17, 1995 Ponter filed a complaint against Prudential seeking to recover PIP benefits.Prudential filed a motion for summary judgment and plaintiff filed a cross-motion for summary judgment.On March 10, 1997 the Law Division judge denied Prudential's summary judgment motion and granted Ponter's cross-motion, ordering payment of PIP benefits.However, the Law Division judge did not consider the applicability of the statutory exclusion pertinent to criminal activity, N.J.S.A. 39:6A-7(a)(1).³

IIIStevenson v. State Farm, A-2861-96T5

On July 16, 1995plaintiffDavid Stevenson borrowed his father's automobile, a 1994 Plymouth, which was insured by State Farm.At his deposition, Stevenson testified that he drove from his home in Clementon in suburban Camden County into the City of Camden to play tennis on courts located across from Woodrow Wilson High School.Stevenson arrived at the tennis courts at about 6 p.m.He had not made prior arrangements to meet anyone on the courts because he had many friends there and usually found someone to play tennis with him.Stevenson said he played doubles and singles matches but could not recall the names of the other players.

After he finished playing tennis at about 10 p.m., Stevenson testified that he got into his car and drove west on Federal Street to Broadway in downtown Camden.At about 10:30 p.m. he stopped for a soda at a convenience store near "Broadway Eddies" on Broadway.As Stevenson walked back to his car, a man approached him and asked for a ride to the Centerville area of Camden.Stevenson agreed to give him a ride, though he was a stranger, because Centerville was generally on his way home via Route 295.Stevenson said:

Q [by defense attorney]: Why did you give the guy a lift?

A: I was doing him a favor.He asked me for a ride.I figured since I'm going that way and Centerville is not too far from where I had to go I figured I do the guy a favor and drop him off where he said he needed a ride to.I mean I've been in a position where I've needed a ride.

The man got into the front passenger seat.Stevenson drove his passenger to 8th and Chelton Streets in the Centerville section of Camden.After Stevenson stopped the car, the man pulled out a pistol from his waistband or back pocket.The man pointed the gun at Stevenson's head and said "this is a carjacking."Stevenson panicked and tried to put his foot on the gas pedal to escape.As the car lurched forward, the assailant pulled the trigger and fired into Stevenson's abdomen.The bullet hit Stevenson's spinal cord.After the shooting, the man jumped out of the car and fled.The car continued to move slowly into the intersection where it hit another vehicle.

An ambulance took Stevenson to Cooper Medical Center where he underwent surgery.He remained at the hospital for over a month.His injuries made it impossible for him to walk.Doctors recommended rehabilitation therapy.For three or four months after he left the hospital, Stevenson was "incapacitated" and required constant assistance.About five months later, Dr. Paul Garrett, a radiologist, examined Stevenson and concluded, "there is severe compromise of the spinal canal primarily at the L4 level due to bone fragments and metallic fragments."

Stevenson sought to recover PIP benefits from State Farm for injuries related to the shooting, not from the car accident.State Farm denied the claim.He filed a complaint alleging State Farm wrongfully denied PIP benefits for gunshot injuries he received during the attempted carjacking.

On the cross-motions for summary judgment, State Farm accepted Stevenson's version of events for purposes of the motion and basic coverage issue only.The motions were argued on the issue of whether PIP coverage was available under the described events.The Law Division judge ruled in State Farm's favor and found no coverage.Again, as in Ponter, the potential defense under the statutory exclusion, N.J.S.A. 39:6A-7(a)(1), barring coverage for PIP benefits where the insured is involved in causative criminal activity, was not considered by the Law Division judge at the summary judgment motion.

IV

Both Stevenson and Ponter claim PIP coverage because each was shot by a passenger in his car during an attempted carjacking.The insurance carriers claim that these events were not "accidents" while "using" a vehicle within the intent of N.J.S.A. 39:6A-4.The basic issue of coverage for these two incidents properly was before the Law Division and ripe for adjudication in both cases under the standards of Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 666 A.2d 146(1995).For reasons explained in section V below, the issue of applicability of the statutory exclusion for persons committing crimes, N.J.S.A. 39:6A-7, was not presented to the Law Division judges for disposition in either proceeding and requires a remand.

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