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Aversano v. Atlantic Employers Ins. Co.

April 25, 1996

LOUIS AVERSANO, PLAINTIFF-APPELLANT,
v.
ATLANTIC EMPLOYERS INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court, Law Division, Monmouth County.

Approved for Publication April 25, 1996. As Corrected May 6, 1996. As Amended July 18, 1996. As Amended July 31, 1996.

Before Judges Landau, Kleiner and Humphreys. The opinion of the court was delivered by Landau, J.A.D. Humphreys, J.A.D. (dissenting).

The opinion of the court was delivered by: Landau

The opinion of the court was delivered by LANDAU, J.A.D.

Plaintiff Louis Aversano filed a Law Division complaint against his automobile insurance carrier, defendant Atlantic Employers Insurance Company, asserting that defendant wrongfully denied personal injury protection benefits mandated by N.J.S.A. 39:6A-4, -5 *fn1 Defendant's motion for summary judgment was granted and plaintiff appealed. We affirm.

For purposes of this appeal, as on the motion, we accept plaintiff's deposition testimony that he was injured by stepping into a pothole in a parking lot as he was walking towards his car with key in hand, right arm extended, reaching for the lock. His wife had "just about" gotten to the passenger door. Plaintiff first made contact with his car "on my way down."

As amended by L. 1983, c. 362, § 7, N.J.S.A. 39:6A-4 requires that every automobile liability insurance policy "shall provide personal injury protection coverage ... 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." Plaintiff argues that this language must be interpreted to provide coverage on the above facts. Neither party has favored us with the text of the actual insuring agreement, but as the arguments center upon the quoted statutory language, we may safely assume that the policy follows the statute.

Relying upon Morgan v. Prudential Insurance Co. of America, 242 N.J. Super. 638, 577 A.2d 1300 (App. Div.), certif. denied, 122 N.J. 370 (1990), and Kordell v. Allstate Insurance Co., 230 N.J. Super. 505, 554 A.2d 1 (App. Div.), certif. denied, 117 N.J. 43 (1989), the motion Judge concluded:

Pursuant to the wording, and the purpose of the statute at issue, the Court is satisfied that the plaintiff in this case, is not covered by the statute, when the vehicles doors were closed, and locked, and the keys have not yet been inserted in the keyhole.

The plaintiff, under these circumstances, cannot be deemed to be entering, under [N.J.S.A.] 39:6A-4. The Court is also satisfied that there is no causal link between the vehicle and the accident to allow for PIP benefits.

The mere fact that an automobile is in the vicinity of an accident, does not transform that accident into one for which PIP benefits are available.

Plaintiff urges on appeal that this analysis is faulty because the clear intent of the Legislature in using the words "entering into ... an automobile" was to broaden the statute to include people entering into a vehicle. The prior language of N.J.S.A. 39:6A-4 required payment of PIP benefits to an insured who sustained bodily injury as a result of an accident "involving an automobile." See Vasil v. Zullo, 238 N.J. Super. 572, 576, 570 A.2d 464 (App. Div. 1990). Plaintiff says that it was his intention to reach out his hand for the purpose of opening the door to the vehicle and that this intent, coupled with proximity of the automobile, is sufficient to provide a nexus supportive of PIP coverage. He points out that he would not have been at the location except to enter his car.

In Lindstrom v. Hanover Insurance Co., 138 N.J. 242, 649 A.2d 1272 (1994), the Court recognized the statutory admonition that the New Jersey Automobile Reparation Reform Act must be "'liberally construed so as to effect the purpose thereof.'" Id. at 247 (quoting N.J.S.A. 39:6A-16).

Necessarily, however, Lindstrom also recognized that the 1983 amendment to section four of the Act was intended to restrict coverage, particularly as to the earlier broad judicial readings given to the words "involving an automobile." The Court set out as an appropriate test the insured's objectively reasonable expectations concerning first party coverage, but recognized that "accidents that do not arise out of the use of an automobile or are not of the type that are within the contemplation of the parties do not fulfill the test's requirements." Id. at 251. It is significant that the Court also cited with favor the Morgan and Kordell cases relied upon by the motion Judge, as well as our decisions in Vasil, supra, and Uzcatequi-Gaymon v. New Jersey Manufacturers Insurance Co., 193 N.J. Super. 71, 472 A.2d 163 (App. Div. 1984). Earlier cases, such as Purdy v. Nationwide Mutual Insurance Co., 184 N.J. Super. 123, 445 A.2d 424 (App. Div. 1982), and Vicari v. Nationwide ...


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