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Cerullo v. Allstate Insurance Co.

Decided: October 30, 1989.

FRANCO A. CERULLO, PLAINTIFF-RESPONDENT,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Union County.

Gaulkin, Dreier and D'Annunzio.*fn1The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

Defendant, Allstate Insurance Company, appeals from a summary judgment that its uninsured motorist coverage (UM) applies to an intentional assault upon the plaintiff, its insured, perpetrated by a passenger in an unidentified automobile.

The material facts are not in dispute. On September 26, 1987, plaintiff was operating his automobile. He moved from

the right lane to the left lane and in doing so "cut off" the unidentified vehicle. While plaintiff's car was stopped at the next intersection, the unidentified vehicle stopped beside him. A passenger emerged from the unidentified vehicle, approached plaintiff's window and punched plaintiff, causing serious eye injury. The unidentified vehicle and the assailant immediately left the scene.

Plaintiff commenced this action against his insurer, Allstate, alleging a right to personal injury protection benefits (PIP) and benefits pursuant to UM coverage. The parties settled the PIP claim, but litigated UM coverage through cross-motions for summary judgment.

The trial court felt compelled by Smaul v. Irvington General Hosp., 108 N.J. 474 (1987), to enter judgment in plaintiff's favor. Smaul involved a PIP claim by a person who was assaulted and robbed when he stopped to ask directions of two pedestrians. In addition to beating plaintiff and taking his money, the perpetrators attempted to steal his car. The Supreme Court held that PIP coverage was applicable because the assault "although not foreseen or expected [was] in the contemplation of the parties to the insurance contract, a 'natural or 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.'" Id. at 478 quoting Westchester Fire Ins. Co. v. Continental Ins. Co., 126 N.J. Super. 29, 38 (App.Div.1973), aff'd 65 N.J. 152 (1974). The Court also focused on the automobile's involvement in the incident:

[P]laintiff sought directions so that he could drive his car to his destination, he was sitting in his car when the assault occurred, and a purpose of the assailants -- not emphasized by either court below but acknowledged in Allstate's Statement of Facts -- was to steal the car after yanking plaintiff out of the driver's seat. The effort to take the automobile removes, for us, any doubt about this case falling within the statutory requirement of an "accident involving an automobile." Ibid.

The statute applied in Smaul mandated PIP benefits for an insured "who sustained bodily injury as a result of an accident

involving an automobile. . . . N.J.S.A. 39:6A-4.*fn2 The UM coverage is also mandated by statute, N.J.S.A. 39:6A-14, and is defined in N.J.S.A. 17:28-1.1a as being applicable, in part, to "bodily injury . . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured or hit and run motor vehicle. . . ." Thus, there is superficial similarity between the PIP phrase "accident involving an automobile" and the UM phrase "arising out of the ownership, maintenance or use" of a vehicle, although the PIP wording is broader. See Darel v. Pennsylvania Mfrs. Ass'n. Ins. Co., 114 N.J. 416, 422 (1989). However, differences between the purpose and function of each coverage are significant and transcend any similarities in language.

UM coverage requires an injury "arising out of the ownership, maintenance, or use" of the uninsured vehicle. Benefits are available only if the covered party, the plaintiff in this case, establishes that he is "legally entitled to recover damages from the operator or owner" of the uninsured or hit and run vehicle. PIP benefits, on the other hand, more closely resemble accident, disability and medical coverages in which fault is irrelevant. This distinction is significant because UM coverage is mandated as a substitute for the liability insurance which should have been covering the uninsured vehicle. Fernandez v. Selected Risks Ins. Co., 82 N.J. 236, 240 (UM coverage designed "to ease the financial burden on the Unsatisfied Claim and Judgment Fund and to provide insured motorists with protection from uninsured, financially irresponsible motorists."); accord, Gorton v. Reliance Ins. Co., 77 N.J. 563, 571 (1978); ...


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