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Lindstrom v. Hanover Insurance Co.

Decided: December 28, 1993.

KURT LINDSTROM, BY HIS G/Aœ GEORGE K. LINDSTROM AND GEORGE K. LINDSTROM, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
THE HANOVER INSURANCE COMPANY ON BEHALF OF THE NEW JERSEY AUTOMOBILE FULL INSURANCE UNDERWRITING ASSOCIATION, DEFENDANT-RESPONDENT



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

R.s. Cohen, D'Annunzio and Wallace. The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

Kurt Lindstrom was rendered a quadriplegic as the result of a gunshot wound. The bullet was fired from within an automobile as it drove past a crowd, which included Lindstrom, attending an outdoor party. At oral argument, each party conceded that the firing of the weapon was an intentional criminal act and that the perpetrator was apprehended and successfully prosecuted. Kurt Lindstrom now appeals from a judgment denying him personal injury protection benefits under an automobile insurance policy issued by defendant Hanover Insurance Company. We affirm.

N.J.S.A. 39:6A-4 defines eligibility for personal injury protection (PIP) benefits. It provides for 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, caused 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 automobile of the named insured, with the permission of the named insured, and to pedestrians, sustaining bodily

injury caused by the named insured's automobile or struck by an object propelled by or from such automobile. (Emphasis added.)

As an insured under defendant's policy, Lindstrom was a covered pedestrian. Thus, he is entitled to benefits if his gunshot injuries were "caused by an automobile or by an object propelled by or from an automobile," within the meaning of the PIP statute. The trial court ruled that the nexus between the injury and the automobile was insufficient to bring the loss within PIP coverage.

We have addressed the application of PIP coverage to injuries caused by criminal acts in several cases arising before and after the 1983 amendments to N.J.S.A. 39:6A-4.

In Morgan v. Prudential Ins. Co., 242 N.J. Super. 638, 577 A.2d 1300 (App.Div.), certif. denied, 122 N.J. 370, 585 A.2d 377 (1990), decedent's husband shot her to death as she sat in the driver's seat of her car. We affirmed the denial of PIP coverage because we concluded "that there was no legal nexus between the shooting and the kind of risk" covered by an automobile policy. Id. 242 N.J. Super. at 641, 577 A.2d 1300.

Similarly, Vasil v. Zullo, 238 N.J. Super. 572, 570 A.2d 464 (App.Div.1990), involved the stabbing death of a passenger who had left the automobile in which he was riding to confront the occupants of another vehicle regarding a traffic dispute. We affirmed the denial of PIP benefits and uninsured motorist coverage. We concluded that the "stabbing did not occur while he was 'occupying, entering into, alighting from or using an automobile'" and, therefore, non-pedestrian PIP coverage did not apply. We also concluded that pedestrian coverage was not applicable because the injury was not caused by an automobile. We further observed that there was no evidence that decedent was killed by an object propelled from an automobile. Id. at 577-78, 570 A.2d 464.

We also denied PIP coverage to the plaintiff in Uzcatequi-Gaymon v. N.J. Mfrs. Ins. Co., 193 N.J. Super. 71, 472 A.2d 163 (App.Div.1984). Plaintiffs' decedent was shot and killed during an attempted ...


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