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 ...