On Appeal from the Superior Court of New Jersey, Law Division, Essex County.
Judges Michels, Gruccio and D'Annunzio. The opinion of the court was delivered by Michels, P.J.A.D.
Plaintiff Raquel Bello, as general administratrix and as administratrix ad prosequendum of the Estate of Owen Bello, appeals from summary judgments of the Law Division entered in favor of defendants Fireman's Fund Insurance Company (Fireman's Fund) and Allstate Insurance Company (Allstate) in this action to recover personal injury protection benefits arising out of a pedestrian/motor vehicle accident.
Being no ordinary pedestrian-motor vehicle accident, it is appropriate to recount the facts giving rise to this appeal. On November 1, 1986, Owen Bello owned an automobile that he purchased, registered and insured in Florida. Allstate, which is authorized to transact automobile and motor vehicle liability insurance business in Florida and New Jersey, issued its automobile policy to Owen Bello in Florida prior to November 1, 1986. After Allstate issued the policy, Owen Bello moved to New Jersey.
On November 1, 1986, Eric Bello, Owen Bello's brother, was employed by defendant Hurley Limousines, Inc. (Hurley), which owned a 1983 Chevrolet four-door sedan (motor vehicle). The Hurley motor vehicle was registered as a limousine and bore the "OL," omnibus livery, license plates. Hurley used the
motor vehicle as a limousine to transport passengers for consideration and apparently it was rented with a driver employed by Hurley. On November 1, 1986, Fireman's Fund insured the Hurley motor vehicle.
Sometime before November 1, 1986 and while living in New Jersey, Owen Bello separated from his wife, Nancy. Owen Bello had custody of the two infant children born of the marriage, Justine and Katrina, and lived with them in Rahway, New Jersey. At the time, Nancy was involved in an adulterous relationship with Eric Bello and they shared an apartment in Roselle Park, New Jersey.
At about 1:00 p.m. on Sunday, November 1, 1986, Owen Bello, Eric Bello, Nancy and the two infant children were in Rahway Park. Owen Bello stood outside of his parked automobile, which had its engine off, looking in the trunk for a band-aid for his daughter Katrina, who stood with him. The Hurley motor vehicle was parked behind Owen Bello's automobile with its engine off. Eric Bello sat in the driver's seat and Nancy sat in the front passenger seat with Justine on her lap. Eric Bello then started the engine of the Hurley motor vehicle with Nancy and Justine inside. Apparently perceiving this, Owen Bello began to bang and pull on the partially opened driver's side window of the Hurley motor vehicle. Eric Bello immediately drove the Hurley motor vehicle forward causing Owen Bello's left arm to catch in the partially opened window. Eric Bello continued to drive forward with Owen Bello caught on the outside of the Hurley motor vehicle. After the Hurley motor vehicle traveled approximately 100 feet with Eric Bello "accelerating and decelerating" the Hurley motor vehicle to dislodge his brother, Owen Bello was fully freed. Owen Bello then "flipped into the air, bounced onto and off the vehicle's trunk and onto the roadway, sustaining massive head injuries." Owen Bello was rendered unconscious and remained in a coma from November 1, 1986, the date of the accident, until his death from complications of his original injuries on May 25, 1988.
This action was instituted against Eric Bello, Hurley and Nancy Bello to recover damages for Owen Bello's personal injuries sustained as a result of this accident. Subsequently, the complaint was amended to seek personal injury protection benefits under both Fireman's Fund's and Allstate's insurance policies. While the matter was pending below, Owen Bello died and Raquel Bello, Owen Bello's sister, was appointed administratrix ad prosequendum and general administratrix of Owen Bello's estate. All defendants filed answers with the exception of Nancy Bello, against whom a default judgment was entered. Fireman's Fund moved for summary judgment, contending that it was not responsible for personal injury protection benefits because its policy specifically excluded recovery for such benefits when the injuries incurred were the result of intentional acts. Allstate moved for summary judgment, contending that it was not under any liability to pay personal injury protection benefits under its policy because the accident involved a limousine, not an automobile as defined by N.J.S.A. 39:6A-2a. Plaintiff filed a cross-motion for summary judgment, seeking a declaration of coverage under both policies.
At the conclusion of the argument, the trial court granted the motions of Fireman's Fund and Allstate and denied the motion of plaintiff. With respect to Fireman's Fund, the trial court held that coverage was excluded because Owen Bello's conduct contributed to his bodily injuries. According to the trial court "the uncontroverted facts of this tragic event indicate [that Owen Bello] was attempting to forcibly keep the vehicle and its passenger from leaving the area, running along side the accelerating vehicle, holding on, and eventually falling away from the moving vehicle." With respect to Allstate, the trial court held that it was not under any liability to plaintiff because the accident involved a limousine, not an automobile, as defined by N.J.S.A. 39:6A-2a. Thereafter, plaintiff settled the claims against Hurley and Eric Bello with Fireman's Fund for its liability insurance policy limits of $500,000. This appeal followed.
With respect to plaintiff's appeal as to Allstate, the critical issue is whether the motor vehicle owned by Hurley and operated by Eric Bello was an "automobile" as defined by the New Jersey Automobile Reparation Reform Act (Act). N.J.S.A. 39:6A-1 to -35. N.J.S.A 39:6A-4 of the Act, as it was in effect at the time of the accident, mandated personal injury protection coverage and provided:
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, as defined hereinbelow, under provisions approved by the Commissioner of Insurance, for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustained bodily injury as a result of an accident while occupying, 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, to other persons sustaining bodily injury while occupying, entering into, alighting from or using the ...