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Hopkins v. Liberty Mutual Insurance Co.

Decided: February 3, 1978.

ROY ALLEN HOPKINS, PLAINTIFF-RESPONDENT, CROSS-APPELLANT
v.
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT-APPELLANT, CROSS-RESPONDENT



Allcorn, Morgan and Horn. The opinion of the court was delivered by Morgan, J.A.D.

Morgan

Defendant Liberty Mutual Insurance Company (hereinafter "Liberty"), appeals from summary judgment in favor of plaintiff,*fn1 holding plaintiff's injuries to have been sustained in circumstances entitling him to coverage under the no-fault provision of its policy.

The facts material to the issues presented are without dispute. On May 18, 1976 plaintiff was injured while attempting to inflate an automobile tire mounted on a rim which came from a pickup truck owned by one Orville Chambers,

a named insured on Liberty's policy which covered the truck. The day before Chambers, with the assistance of plaintiff and his brother, had mounted the tire on the rim for use as a spare on the truck if it inflated. He was, however, unable to inflate the tire because the local service station was closed. Plaintiff agreed with Chambers that he would arrange to have the tire inflated on the following day if he could use the truck to visit his mother.

The following day plaintiff and his brother, in possession of the truck with Chambers' permission, with the mounted tire in the rear of it, visited their mother and then stopped at a service station to inflate the tire as agreed. They had planned to return the truck to Chambers after the tire had been inflated.

Upon arrival at the service station they parked the truck near the air hose, removed the tire from the back of the truck, and began putting air into it. Following what appeared to be an extended period of frustration in their endeavor, the tire exploded, causing plaintiff the serious injuries which were the occasion for the present litigation.

Both parties agree that N.J.S.A. 39:6A-4 controls as to the minimum coverage to be afforded under the no-fault provisions of Liberty's policy:

Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide additional coverage, as defined herein below, under provisions approved by the Commissioner of Insurance, for the payment of 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 involving an automobile, to other persons sustaining bodily injury while occupying the automobile of the named insured or while using such automobile 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.

Under this critical provision three classes of persons are afforded protection: (1) named insureds and members of their family are covered for bodily injury arising from an accident involving an automobile; (2) "other persons" are given protection for bodily injuries sustained "while occupying the automobile of the named insured or while using [it] with [the named insured's] permission"; and (3) "pedestrians" are covered for injuries caused by the automobile or when struck by an object propelled by it.

Plaintiff, not being a named insured or a member of his family, the first class of protected persons, can only derive protection, if any, from being a member of the two other classes, "other persons" or "pedestrians."

Liberty contends that plaintiff is not covered as an "other person" because he was neither an occupant of the vehicle at the time of the accident since he was working outside of it, nor was he using the vehicle with the insured's permission. We need not, however, determine whether in these circumstances plaintiff was an occupant of the vehicle ...


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