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Lindstrom by Lindstrom v. Hanover Ins. Co. on Behalf of New Jersey Auto. Full Ins. Underwriting Ass'n

Decided: December 19, 1994.

KURT LINDSTROM, BY HIS GUARDIAN AD LITEM, 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 certification to the Superior Court, Appellate Division, whose opinion is reported at 269 N.J. Super. 339 (1993).

The opinion of the Court was delivered by Clifford, J. Chief Justice Wilentz and Justices Handler and Stein join in this opinion. Justice Pollock has filed a separate Dissenting opinion in which Justices O'Hern and Garibaldi join.

Clifford

The opinion of the Court was delivered by

CLIFFORD, J.

Plaintiff Kurt Lindstrom sustained grave injuries resulting from a gunshot wound inflicted in a drive-by shooting. He seeks recovery of personal-injury-protection (PIP) benefits under his father's automobile insurance policy, issued by defendant. The trial court concluded that the nexus between the injury and the automobile was not substantial enough to bring the loss within PIP coverage, and therefore it entered summary judgment in favor of the defendant-insurer. The Appellate Division affirmed, 269 N.J. Super. 339 (1993). We granted certification, 136 N.J. 31 (1994), and now reverse.

I

The facts are undisputed. Plaintiff Kurt Lindstrom was a student at the University of North Carolina-Wilmington. He was attending an outdoor party at the University on April 15, 1989, when an occupant of a passing car fired a shot into the crowd. The bullet struck Kurt behind his right ear and pierced his spinal column, rendering him a quadriplegic. The authorities apprehended and successfully prosecuted the assailant.

As a member of his father's household in Eatontown, Kurt was covered by the automobile insurance policy issued by defendant, Hanover Insurance Company, to the father, plaintiff George K. Lindstrom. (Inasmuch as his son is totally disabled, George sues as Kurt's guardian ad litem as well as in his individual capacity.

Because the interests of father and son are identical, we refer hereafter to "plaintiff" in the singular.)

At the time of the occurrence the statute that defines eligibility for PIP benefits mandated

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 * * * as a pedestrian, caused by an automobile or by an object propelled by or from an automobile.

[L. 1988, c. 119, § 3 (codified at N.J.S.A. 39:6A-4).]

Plaintiff demanded payment under the policy for Kurt's medical expenses and "essential services." When defendant refused payment, plaintiff instituted this suit to obtain PIP benefits.

On the parties' cross-motions for summary judgment the trial court ruled that some connection must exist between the insured and "the manner by which the injury[-]producing event occurs." Because it found no "operative automobile[-]like activity to justify application of the coverage," the court entered summary judgment for defendant.

Plaintiff appealed. In determining whether Kurt's injuries were within the contemplation of N.J.S.A. 39:6A-4 ("section four"), the Appellate Division reviewed cases concerning the applicability of PIP coverage to intentional criminal acts. See 269 N.J. Super. at 341-43. The underlying theme in those cases is the requirement of a legal relationship between the automobile and the plaintiff's injury such that the automobile was a cause of that injury and not merely an "attending circumstance." The Appellate Division in this case concluded that the fact that plaintiff was injured by a bullet that had been propelled from a gun and not from the car itself "attenuated the connection between the automobile and the injury." Id. at 344. The court further ruled that the parties to the insurance contract did not contemplate that a deliberate shooting of a pedestrian would be within the policy coverage. Because the Appellate Division did not find the requisite "substantial nexus between the automobile and the criminal act," ibid., it affirmed the judgment of the trial court.

II

Plaintiff argues that because the bullet that caused the injury was propelled from an automobile, the incident is within the scope of section four. He asserts that the Appellate Division's denial of coverage based on the criminal activity underlying the injury incorrectly focused on the actor's intent. Under a PIP claim, according to plaintiff, the only relevant question is whether the bullet was propelled from an automobile within the meaning of section four. Plaintiff asks that we not apply the "substantial nexus" test to his case. He argues in the alternative that if the substantial-nexus test does apply, the facts meet that test because the car was "inextricably linked to the crime."

Plaintiff's argument that the substantial-nexus test does not apply to family-member pedestrians need not long detain us. The language of section four is unmistakable in its limitation of PIP coverage to members of the insured's household who "sustained bodily injury * * * as a pedestrian, caused by an automobile or by an object propelled by or from an automobile." In light of the statutory requirement of causation, we have previously applied the substantial-nexus test in the PIP-coverage context, see Smaul v. Irvington General Hospital, 108 N.J. 474, 477-78, 530 A.2d 1251 (1987), and continue to do so in this family-member pedestrian case.

In resisting plaintiff's claim, defendant relies on Westchester Fire Insurance Co. v. Continental Insurance Co., 126 N.J. Super. 29, 312 A.2d 664 (App. Div. 1973), aff'd o.b., 65 N.J. 152 (1974). There the court held that an injury sustained by a victim struck by a board thrown from a moving automobile came within the scope of the automobile-liability-policy provision "arising out of the ownership, maintenance or use" of the automobile and that the automobile carrier was obligated to defend the suit alleging such bodily injury. 126 N.J. Super. at 35, 38. In reaching that Conclusion the ...


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