On appeal from Superior Court of New Jersey, Law Division, Burlington County.
Fritz, Ard and Trautwein. The opinion of the court was delivered by Fritz, P.J.A.D.
The sole question in this case is whether an intentional occurrence, produced by design of the actor but wholly unexpected and untoward from the standpoint of the victims, is an "accident" within the purview of personal injury protection benefits under N.J.S.A. 39:6A-4, commonly known as PIP benefits. The trial judge, in a half-page written letter opinion which announces his conclusion but denies us the benefit of any rationale in arriving at the result, answered that question in the affirmative. We agree and affirm.
For the purposes of this declaratory judgment action, the facts are not in dispute. Shirley Miller, owner of the automobile involved, which automobile was insured by Pennsylvania National Mutual Casualty Insurance Company by way of a family combination automobile policy which provided PIP benefits, permitted her estranged husband to operate the automobile in which she and her daughter Jermaine were passengers. Her husband intentionally drove off the roadway and into the Delaware River killing himself and Shirley.*fn1 Jermaine managed to survive the accident.
In the declaratory judgment action the trial judge determined that Jermaine Miller and the estate of Shirley Miller are entitled to recover PIP benefits under the policy. He did this by reciting N.J.S.A. 39:6A-4, appropriately abridged, and then simply announcing:
I construe the words "without regard to . . . fault of any kind," as including fault which arises from an intentional act. Consequently, the plaintiff could not
exclude that coverage from its policy; it was bound by the statute to do the opposite.
Plaintiff bottoms its appeal on two arguments. First, it urges that the trial judge erred in ruling that the "No Fault Statute" provides coverage for intentional injuries. Second, plaintiff insists that the automobile insurance policy it issued is a contractual relation between the parties and not only requires an accident but specifically excludes intentional acts. In view of the statutory compulsion respecting the inclusion of PIP benefits pursuant to the statute in "[e]very automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law" (N.J.S.A. 39:6A-4), these arguments merge into one, the persuasiveness of which (or lack thereof) will be demonstrated by the answer to the question posited above. This because an insurance company may not by contract limit the terms of coverage ordered by statute. Hoglin v. Nationwide Mut. Ins. Co., 144 N.J. Super. 475, 482 (App.Div.1976). In our effort we search for the legislative intent manifested by inclusion of the word "accident" in the statute.
N.J.S.A. 39:6A-4 reads as follows in pertinent part:
Personal injury protection coverage, regardless of fault
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.
It is to be seen at the outset that the statute does not expressly exclude intentional acts. Quite the contrary: rather it excludes consideration of "negligence, liability or fault of any kind." In ...