On certification to the Superior Court, Appellate Division, whose opinion is reported at 209 N.J. Super. 592 (1986).
For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
This appeal, pursuant to certification granted, 107 N.J. 49 (1986), challenges the Appellate Division's affirmance of the trial court's judgment that plaintiff is entitled to personal injury protection (PIP) benefits under his automobile insurance policy with defendant Allstate Insurance Company (Allstate). Plaintiff sustained injuries and damages when he was assaulted after stopping to ask directions of two pedestrians, who, in addition to beating plaintiff, took his money and attempted to steal his car. We affirm.
On April 21, 1983, plaintiff, Felix Smaul, was operating his automobile on Elizabeth Avenue, Irvington. According to the Statement of Facts of defendant Allstate (the other named defendants have not been involved in the appeal process, there being a final judgment under Rule 4:42-2 in respect of Allstate alone), plaintiff stopped his car to ask for directions. While plaintiff was seated in his vehicle, two men approached. One of them reached through the car window while the other pulled up the door-locking mechanism, whereupon they pulled plaintiff
out of his car. After stealing Smaul's cash, the assailants tried to take his auto. When plaintiff resisted, one of the men cut the victim on the forehead with a knife, requiring about 200 sutures, and broke his "ring" finger. The men fled when a passing car approached. Plaintiff was transported by ambulance to Irvington General Hospital, where he remained for one day.
When plaintiff sought PIP benefits from Allstate for injuries sustained and damages incurred as a result of this incident, Allstate refused payment, wherefore plaintiff commenced suit in the Law Division. On the parties' cross-motions for summary judgment the trial court denied Allstate's motion and granted summary judgment for plaintiff. The Appellate Division affirmed, 209 N.J. Super. 592 (1986).
Defendant's petition for certification asserts that the Appellate Division's determination conflicts with other decisions of that court involving the right to recover PIP benefits for damages resulting from an assault and battery. The heart of Allstate's contention is that Smaul did not, in the language of the PIP statute, "sustain[ ] bodily injury as a result of an accident involving an automobile * * *." N.J.S.A. 39:6A-4. That was the statutory expression in effect at the time the policy in question was issued and at the time of this occurrence (the parties appear to agree that the policy language tracks the statute), although the statute has since been amended to refer to "bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile * * *."
The Appellate Division, after first noting that there was no disagreement about the incident being an "accident" within the meaning of the statute, concluded that "[i]n a literal sense" the assault surely "involved an automobile, since it was the site of the assault," 209 N.J. Super. at 594, but went on to observe that "the question remains whether in a practical sense the automobile
was merely an attending circumstance * * * unrelated to the assault or whether it had a sufficient nexus to the assault to come within the statute." Ibid. The reference in the opinion of the court below to "attending circumstance" came from Uzcatequi-Gaymon v. New Jersey Manufacturers Insurance Co., 193 N.J. Super. 71 (App.Div.1984), in which a driver who parked his automobile near a public telephone was killed in the course of a robbery when he refused to surrender his car keys to his assailants. Id. at 72. In a suit by his survivors to recover PIP benefits the court held that although the theft of the vehicle may have been the "ultimate object of the attack," id. at 73, from a legal viewpoint the cause of decedent's injuries and death was not the automobile but rather was the act of robbery committed by his assailants. Ibid. The Uzcatequi-Gaymon court viewed the fact that the ...