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Foss v. Cignarella

Decided: July 12, 1984.

ARTHUR FOSS & ELEANOR FOSS, H/W, PLAINTIFFS,
v.
ANTHONY MICHAEL CIGNARELLA AND ESTATE OF ANTHONY MICHAEL CIGNARELLA, DEFENDANTS. ARTHUR FOSS & ELEANOR FOSS, PLAINTIFFS, V. NEW CHINA ROYAL, INC., A N.J. CORP., THE TRAVELERS INDEMNITY CO., A CONN. CORP., ET AL., DEFENDANTS



Gaynor, J.s.c.

Gaynor

This case presents a novel factual basis for a claim against an insurer for injuries inflicted by the operator of the insured vehicle. In our opinion, the coverage afforded by the automobile policy does not extend to the incident resulting in injury to plaintiff.

Defendant, Travelers Indemnity Company (Travelers), moves for summary judgment dismissing the complaint and cross-claims in these consolidated actions wherein plaintiffs seek recovery for injuries sustained by plaintiff, Arthur Foss (Foss), as a result of a stabbing by Travelers' insured, Anthony Cignarella (Cignarella), following an accident involving automobiles being operated by Foss and Cignarella. As there are no genuine issues of any material facts relating to the liability of Travelers, it is appropriate that this issue be determined on motion. R. 4:42-2.

According to plaintiffs' pleadings and certifications, Foss was traveling south on Route 287 in the area of Bernards Township on September 26, 1981. As he was proceeding in the third, or fast, lane of the highway, an automobile being driven by Cignarella attempted to pass him on the left by traveling on the median and, in so doing, sideswiped Foss' vehicle. Both drivers thereupon brought their cars to a stop on the shoulder of the road. However, Foss' vehicle rolled forward, bumping into the rear of Cignarella's car. Cignarella flew into a rage and ran up to Foss' vehicle, and stabbed Foss in the chest, while he was seated in his vehicle with the door closed but the window partially open. Cignarella returned to his car and drove away. Cignarella appeared to Foss to be drunk -- slurring his speech and reeking of alcohol. He was subsequently apprehended by the police and charged with certain criminal offenses arising from the incident. About three weeks later, he committed suicide. Although Foss did not suffer any injury from the impact between the two vehicles, he seeks recovery from Travelers,

as the insurer of the vehicle operated by Cignarella, for the injuries resulting from the stabbing.

In moving for judgment in its favor, Travelers contends that plaintiff's injuries did not arise out of the operation or use of the insured automobile, nor could the parties to the insurance contract reasonably contemplate that conduct, such as engaged in by Cignarella and resulting in the injury to plaintiff, would be a natural consequence of the use of the vehicle or a risk which they might reasonably expect to be insured against under the policy. Plaintiffs, on the other hand, assert that the circumstances surrounding the criminal conduct of Cignarella support a conclusion that the injury inflicted upon Foss originated from, or grew out of, the use of the insured vehicle by Cignarella, and that his conduct should be considered as being within the contemplation of the contracting parties as a foreseeable consequence of the use of the automobile by Cignarella in his intoxicated condition.

As authority for their respective positions, both parties rely upon the construction, in the case of Westchester Fire Ins. Co. v. Continental Ins. Co., 126 N.J. Super. 29 (App.Div., 1973), of an insurance policy clause providing coverage for an "accident arising out of the . . . use" of the insured's automobile. In concluding that such coverage existed where a bicyclist was injured by a stick thrown by a passenger from the insured's moving vehicle, the court enunciated the following principles with respect to the interpretation of the subject provision:

But we do not agree that the words "arising out of the * * * use" require or justify the interpretation that before coverage exists it must appear that the injury is a direct and proximate result, in a strick legal sense, of the use of the automobile. We think that such a construction would do equal violence to the normal meaning of those words. Specifically, the policy does not require that the injury be directly or proximately caused by the automobile itself or by its motion or operation. If such a meaning was intended to be projected by this important clause of the standard family automobile policy, it is difficult to understand why a phrase which clearly conveyed the idea of proximate causation, such as "caused by" or "resulting from," was not employed.

We consider that the phrase "arising out of" must be interpreted in a broad and comprehensive sense to mean "originating from" or "growing out of" the use

of the automobile. So interpreted, there need be shown only a substantial nexus between the injury and the use of the vehicle in order for the obligation to provide coverage to arise. The inquiry should be whether the negligent act which caused the injury, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile, and thus a risk against which they might reasonably expect those insured under the policy would be protected. See 7 Am.Jur. 2d, ยง 82 at 387 (1963). Whether the requisite connection or degree of relationship exists depends upon the circumstances of the particular case. [at 37-38]

As stated in Westchester Fire, while it is only necessary that there be a substantial connection between the injury and the insured vehicle, a determinative factor is whether the act causing the injury was "in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile, and thus a risk against which they might reasonably expect those insured under the policy would be protected." In concluding that the act of the passenger, in throwing the stick from the automobile, was a sufficiently foreseeable consequence of the use of the automobile to mandate coverage, the court cited the general knowledge that it is not uncommon for objects, such as lighted cigarettes, food and drink containers and other debris, to be thrown or permitted to fall from moving vehicles. However, a distinction was noted between a stick being thrown from a car and the ejection of intrinsically dangerous objects, such as bombs, firecrackers or gunshots, and it was observed that courts in other jurisdictions generally hold that no coverage exists because of the absence of any causal connection ...


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