No New Jersey court has decided whether the New Jersey Automobile Full Insurance Underwriting Association (N.J.A.F.I.U.A.) or the Unsatisfied Claim and Judgment Fund (U.C.J.F.) is primarily liable for Personal Injury Protection (PIP) coverage for a pedestrian injured by a stolen car. The matter is before the court on cross-motion for summary judgment by plaintiff and N.J.A.F.I.U.A.
Absent compelling cause, this court will adhere to precedent set by a coordinate branch of the judicial system even though it may not be binding or obligatory authority. In a society which is highly litigious and engulfed with reported cases, a strong argument can be made for judicial consistency. New Jersey Mfgrs. Ins. v. Griffin, 253 N.J. Super. 173, 601 A.2d 261 (Law Div.1991) controls the issue of whether the PIP carrier of the owner of the car applies when the car is stolen. Though this court may have reservations, there is sufficient logic in that opinion to outweigh the confusion which would follow if a coordinate court reached a different result.
The rationale which the court is using to determine the issue of primacy is essentially the verbatim adoption of the argument submitted by U.C.J.F.
Plaintiff sustained serious injuries on March 14, 1991, while a pedestrian crossing Stegman Street in Jersey City, New Jersey. He alleges that he was struck by a 1982 Buick owned by defendant Lorraine Farrion. The operator of the vehicle is unknown. Ms. Farrion contends that her vehicle was stolen and it is inferred that the thief was driving the motor vehicle at the time the accident occurred. These defendants do not have facts to dispute that contention.
N.J.A.F.I.U.A. argues that it should not be obligated to provide personal injury protection to the injured plaintiff because of the theft of the vehicle and the fact that it was being operated without the owner's permission relying, in great part, upon the holding of Morgan v. Prudential Ins. Co. of America, 242 N.J. Super. 638, 577 A.2d 1300 (App.Div.1990), although the fact pattern, reasoning and spirit of the holding in that case are significantly different from the matter at bar.
Morgan, supra, involved a claim for PIP (death) benefits pursuant to N.J.S.A. 39:6A-4 (the statute). Decedent was shot to death by her husband at 2:00 o'clock in the morning while she was seated in her double-parked car. Her husband was charged with murder, but was convicted of manslaughter. The court considered the shooting as an "accident" under the statute. Plaintiff argued that the "injured" person was occupying the automobile, so she was not disqualified by virtue of the amendatory language of the statute (from a broader definition of "bodily injury as a result of an accident involving a motor vehicle" to the more restrictive definition "bodily injury as a result of an accident while occupying, entering into, alighting from, or using an automobile"). The court concluded that:
"There was no legal nexus between the shooting and the kind of risk covered under the automobile policy . . . ." (Morgan, supra, p. 641, 577 A.2d 1300)
"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 the 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 was merely an attending circumstance and did not transform this incident into 'an accident involving an automobile' within the meaning of the [statute]. [ Id. at 73, 472 A.2d 163]." Morgan, supra, 242 N.J. Super. p. 641, 577 A.2d 1300 (emphasis ours)
The court went on to acknowledge that the decedent's presence in her automobile provided the " setting " (Morgan, p. 642, 577 A.2d 1300) for the killing and in some sense may have given the ...