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Serio v. Allstate Insurance Co.

Decided: May 21, 1986.

EDVIDGE SERIO AND DANNY SERIO, PLAINTIFFS-RESPONDENTS,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Passaic County.

Furman, Petrella and Skillman. The opinion of the court was delivered by Skillman, J.s.c. (temporarily assigned).

Skillman

[210 NJSuper Page 168] The Automobile Reparation Reform Act (No Fault Act) (N.J.S.A. 39:6A-1 et seq.) provides that a person may be excluded from personal injury protection benefits (PIP) if his personal injuries occurred "while committing a high misdemeanor or felony or seeking to avoid lawful apprehension or arrest by a police officer." N.J.S.A. 39:6A-7a(1). The trial court concluded

that this exclusion does not apply to a driver injured in an accident while attempting to avoid police apprehension for a motor vehicle violation. Since this statutory exclusion was the only defense to plaintiffs' claim for PIP benefits, summary judgment was entered in favor of plaintiffs. We disagree with the trial court's interpretation of N.J.S.A. 39:6A-7a(1) and therefore reverse.

Plaintiff Danny Serio was first observed traveling at a high rate of speed by a Westwood Police patrolman. After clocking the speed of Serio's car with radar at 73 m.p.h., the patrolman activated the overhead and four-way lights on his police car, jumped out of the car and waved at Serio to stop. However, Serio kept on going. The patrolman then made a U-turn and started after Serio but stopped after proceeding a short distance when he realized Serio could not be caught. A patrolman in the adjoining municipality of River Vale, who had heard a police radio broadcast that the Westwood Police were in pursuit of a red Corvette, spotted Serio's car traveling at an estimated 65 m.p.h. through the local streets. The vehicle, driven by a male with a female passenger, passed the officer traveling in the opposite direction. He activated his overhead lights as Serio's car approached him, made a U-turn, activated his siren and began pursuit. Shortly thereafter, Serio lost control of the car, crashing through a gasoline station and into the side of a building. His passenger was killed in the accident and Serio was seriously injured. Serio subsequently pled guilty to a charge of death by auto. N.J.S.A. 2C:11-5.

The vehicle driven by Serio was insured by defendant Allstate under a policy issued to his mother, co-plaintiff Edvidge Serio. Allstate denied plaintiffs' claim for PIP benefits based upon the statutory exclusion, tracked in plaintiffs' policy, for injuries suffered while "seeking to avoid lawful apprehension or arrest by a police officer." N.J.S.A. 39:6A-7a(1). Plaintiffs argue that this exclusion is inapplicable to their claim because the police would not have arrested Danny Serio if they had caught him before the accident and because this exclusion should be

construed to apply only to persons seeking to avoid lawful apprehension or arrest for a high misdemeanor or felony.

We recognize that "PIP coverage should be given the broadest application consistent with the statutory language." Amiano v. Ohio Casualty Ins. Co., 85 N.J. 85, 90 (1981). However, we are convinced that plaintiffs' claim falls squarely within the exclusion from benefits authorized by N.J.S.A. 39:6A-7a(1). When the accident occurred, Danny Serio was engaged in high speed flight from police officers who were seeking to apprehend him for speeding and reckless driving. Therefore, he was, in the language of the statute, "seeking to avoid lawful apprehension or arrest by a police officer." N.J.S.A. 39:6A-7a(1). The applicability of this statutory exclusion cannot reasonably be construed, as urged by plaintiffs, to depend on whether the police intended to arrest or to issue a summons to Serio, or on Serio's perception of what action the police would take if they caught him. The statutory exclusion applies to persons seeking to avoid not only "arrest" but also "apprehension." Although these words are used interchangeably in some contexts, the term "apprehension" is commonly understood to refer to the act of taking a person into custody, which may not amount to a formal arrest. Thus, a person may be apprehended for the purpose of on the scene interrogation, see United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), or the issuance of a summons, see Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), without their movement being restricted to the extent required for an arrest. The understanding that "apprehension" and "arrest" may be separate and distinct police actions is also reflected in N.J.S.A. 40:149-1, which authorizes police "to apprehend and arrest" certain offenders. Cf. United States v. Moderacki, 280 F. Supp. 633, 638 (D.Del.1968) (construing the statutory term "apprehends and effects arrests" as referring to a duty "to locate the offender detain

him when necessary and summon someone to arrest him"). If the Legislature had intended N.J.S.A. 39:6A-7a(1) to have the limited scope urged by plaintiffs, it could have made the exclusion applicable only to drivers "seeking to avoid lawful arrest" and omitted any reference to "lawful apprehension." "It is a cardinal rule of statutory construction that full effect should be given, if possible, to every word of a statute." Gabin v. Skyline Cabana Club, 54 N.J. 550, 555 (1969). Therefore, we are satisfied that the Legislature intended N.J.S.A. 39:6A-7a(1) to apply to any driver who is seeking to avoid lawful police apprehension, regardless of whether an arrest would have followed apprehension.

We also note that this high speed chase could have resulted in plaintiff's arrest. N.J.S.A. 2C:29-2b provides that:

Any person, while operating a motor vehicle on any street or highway in this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to ...


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