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Vasil v. Zullo

Decided: February 16, 1990.

DENISE A. VASIL, INDIVIDUALLY AS ADMINISTRATRIX OF THE ESTATE OF DANIEL VASIL, DECEASED, AND AS GUARDIAN AD LITEM OF SARAH VASIL AND JONATHAN VASIL, INFANTS, PLAINTIFF-APPELLANT,
v.
CARMEN ZULLO, IDEAL MOBILE HOME PARK, INC., AND IDEAL HOME SALES, INC., FOREMOST INSURANCE CO., AND NEW JERSEY MANUFACTURERS INSURANCE COMPANY, DEFENDANTS-RESPONDENTS



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

J.h. Coleman and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

[238 NJSuper Page 574] This case involves claims for personal injury protection (PIP), N.J.S.A. 39:6A-4, and uninsured motorist (UM), N.J.S.A. 17:28-1.1, benefits arising out of a homicide. The decedent, Daniel Vasil, was a passenger in a vehicle operated by Carmen Zullo. The two men had attended a hockey game at the Meadowlands Arena on the evening of December 11, 1985. As they were starting their trip home Zullo made a U-turn on Paterson Plank Road, ending up on the shoulder of the roadway heading west. The driver of a small Toyota truck apparently felt that Zullo

had cut him off. Consequently, he pulled his vehicle next to Zullo's vehicle, thereby blocking Zullo's entry onto the main line of traffic. The occupants then exchanged obscenities from within their vehicles. Next, Vasil jumped out of the Zullo vehicle and walked around to the driver's side of the Toyota. Zullo lost sight of him at this time. A few moments later, Vasil returned. As he sat back down in his seat, Vasil began to exhibit signs of severe physical distress and subsequently died without relating to Zullo what had happened while he was outside the vehicle. An autopsy revealed that his death had been caused by a stabbing. The Toyota departed from the scene without Zullo taking note of its license number and neither the vehicle nor its occupants were ever identified.

This lawsuit was brought by the decedent's wife, as administratrix of his estate and guardian ad litem of their minor children, seeking recovery of PIP and UM benefits against both New Jersey Manufacturers Insurance Company (NJM), which had issued an automobile liability policy to Vasil, and Foremost Insurance Company (Foremost), which had issued an automobile policy to Ideal Mobile Home Park, Inc., the owner of the car operated by Zullo.*fn1 After the expiration of the period for discovery, NJM moved for summary judgment. The trial court issued an oral opinion on November 10, 1988 rejecting all of plaintiff's claims for PIP and UM benefits and subsequently entered summary judgments in favor of all defendants.

Plaintiff appeals from the dismissal of her claims for PIP and UM benefits as against both NJM and Foremost. We affirm.

I

To qualify for PIP benefits, a person must have been injured "as a result of an accident while entering into, alighting

from or using an automobile, or as a pedestrian, being struck by an automobile or by an object propelled by or from an automobile." N.J.S.A. 39:6A-4. This test of eligibility for PIP benefits was introduced by way of a 1983 amendment to the PIP statute, L. 1983, c. 362, ยง 7, which previously had required the payment of PIP benefits to any named insured "who sustained bodily injury as a result of an accident involving an automobile."

The cases relied upon by plaintiff to establish her entitlement to PIP benefits were all decided under N.J.S.A. 39:6A-4 as it read prior to the 1983 amendment. See, e.g., Smaul v. Irvington General Hospital, 209 N.J. Super. 592, 594, 508 A.2d 1147 (App.Div.1986), aff'd 108 N.J. 474, 530 A.2d 1251 (1987); Pennsylvania Nat'l Mutual Casualty Ins. Co. v. Miller Est., 185 N.J. Super. 183, 186, 447 A.2d 1344 (App.Div.1982); Vicari v. Nationwide Ins., 174 N.J. Super. 463, 465, 416 A.2d 977 (App.Div.1980), certif. den. 85 N.J. 464, 427 A.2d 562 (1980). However, the cases construing the 1983 amendment have uniformly recognized that its intent was to constrict the reach of PIP coverage recognized under prior case law. See, e.g., Ingraham v. Travelers Companies, 217 N.J. Super. 126, 129, 524 A.2d 1319 (App.Div.1987), aff'd o.b. 110 N.J. 67, 539 A.2d 733 (1988); Uzcatequi-Gaymon v. New Jersey Manufacturers Ins. Co., 193 N.J. Super. 71, 75, 472 A.2d 163 (App.Div.1984); JFK Memorial Hospital v. Kendal, 205 N.J. Super. 456, 458-459, 501 A.2d 197 (Law Div.1985). This intent was made clear in the introductory statement to Assembly Bill 3981, which was later enacted as chapter 362 of the Laws of 1983:

These provisions mainly are designed to tighten statutory eligibility requirements for personal injury protection coverage so as to comport with the original intent of the no-fault law.

We believe that this case involves the kind of circumstances which the Legislature intended to exclude from PIP coverage ...


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