On appeal from Superior Court of New Jersey, Law Division, Essex County.
J.h. Coleman and Brody. The opinion of the court was delivered by Brody, J.A.D.
[242 NJSuper Page 639] This is an action for the payment of personal injury protection (PIP) death benefits pursuant to N.J.S.A. 39:6A-4 (the statute). The decedent, a named insured in an automobile liability insurance policy issued by defendant, was shot to death by her estranged husband, a Newark Special Police Officer. At the time of the shooting, about 2:00 a.m., she was double parked. Her husband had just triple parked by parking his car next to hers. He then approached the driver's side of her car. At his criminal trial he testified that his wife reached out from her car and grabbed his service gun from its holster. As he
was trying to recover the gun, it accidentally fired a bullet into her head. Charged with murder, he was convicted of manslaughter.
Plaintiff contends that regardless of whether the shooting was intentional, it must be considered a covered "accident" under the statute, which provides in relevant part as follows:
Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide personal injury protection coverage . . . for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured . . . who sustained bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile. . . . [Emphasis added.]
As appears from the emphasized portions of the statute, the definition of the required causal connection between the automobile and the accident is different for automobile liability coverage than for PIP coverage. As viewed by plaintiff, the issue is simply whether her decedent sustained bodily injury (which includes death) "as a result of an accident while occupying" the insured automobile. The trial judge disagreed and granted defendant's motion for summary judgment. We affirm.
The present statute replaced the broader statutory definition that afforded PIP coverage for "bodily injury as a result of an accident involving an automobile" with the more restrictive definition of coverage for "bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile." Uzcatequi-Gaymon v. N.J. Mfrs. Ins. Co., 193 N.J. Super. 71, 75-76, 472 A.2d 163 (App.Div.1984). As we noted in Ingraham v. Travelers Companies, 217 N.J. Super. 126, 128-129, 524 A.2d 1319 (App.Div.1987), aff'd o.b. 110 N.J. 67, 539 A.2d 733 (1988), the purpose of the statutory change was to "tighten statutory eligibility requirements," not to relax them. Thus the present statutory language was not intended to afford coverage where there had previously been none, but to deny coverage encompassed by the previous expression
"involving an automobile" if the injured person was not "occupying, entering into, alighting from or using an automobile."
Here the "injured" person was occupying the automobile, so she is not disqualified by the amendatory language of the statute. The question remains whether she is otherwise eligible. We will assume, as we did in Vasil v. Zullo, 238 N.J. Super. 572, 576-577, 570 A.2d 464 (App.Div.1990) in similar circumstances, that the shooting was an "accident" even though it may have been intentional. We nevertheless conclude that there was no legal nexus between the shooting and the kind of risk covered by a policy that basically affords liability coverage for damages "arising out of ownership, operation and maintenance or use of an automobile . . . ."
Uzcatequi-Gaymon, 193 N.J. Super. 71, 472 A.2d 163, was decided under the prior broader statutory definition of PIP coverage. There the insured was shot to death at 3:00 a.m. while using an outdoor telephone booth. His automobile was parked nearby. Robbers approached him and demanded that he surrender its ignition key. When he refused, they killed him. We said there:
For the purpose of this appeal we assume that plaintiff can prove that the car was parked next to the phone booth, that decedent had the car keys in his hand, that he was talking to his girlfriend over the telephone, that his automobile was very important to him, and that he was shot and killed by persons attempting to rob him of his car keys and his automobile. Nevertheless, in our view, while theft of the automobile may have been the ultimate object of the attack, from a legal viewpoint the automobile was not the cause of decedent's injuries and death. Rather, the cause of his injuries and death was the act of robbery committed by his assailants. That the automobile was the object of the robbery ...