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Aversano v. Atlantic Employers Ins. Co.

October 6, 1997


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 290 N.J. Super. 570 (1996).

Chief Justice Poritz and Justices Handler, Pollock, O'hern, Garibaldi, Stein and Coleman join in this opinion.

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Aversano v. Atlantic Employers Ins. Co. (A-20-97)

(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Landau's written opinion below.)

Argued September 9, 1997 -- Decided October 6, 1997


According to the facts as recited in the Appellate Division opinion, Louis Aversano filed a complaint in the Law Division against his automobile insurance carrier, Atlantic Employers Insurance Company (Atlantic),asserting that the carrier had wrongfully denied personal injury protection (PIP) benefits mandated by N.J.S.A. 39:6A-4 (section 4). Aversano was injured when he stepped into a pothole in a parking lot as he was walking towards his car. He had the car key in his hand and his right arm extended, reaching for the door lock. Aversano's wife had almost reached the passenger door. Aversano claims that he first made contact with his car on his way down to the ground as he fell.

Atlantic moved for summary judgment based on Section 4, which requires that every automobile insurance policy provide PIP benefits to the named insured and family members of the named insured residing in the household who sustain bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile. Aversano argued that Section 4 must be interpreted to provide coverage for his injuries. The trial court disagreed, granting summary judgment in favor of Atlantic. The court found that because the vehicle doors were closed and locked and the keys had not yet been inserted into the keyhole, Aversano could not be deemed, pursuant to the statutory language, to be entering the automobile. The court found no causal link between the accident and the vehicle to permit PIP benefits, noting that the mere fact that an automobile is in the vicinity of an accident does not transform it into one for which PIP benefits are available.

On leave to appeal granted, Aversano argued before the Appellate Division that the trial court's analysis was erroneous because the clear intent of the Legislature in using the words "entering automobile" was to broaden the statute to include coverages for his injuries.

A majority of the Appellate Division affirmed the decision of the trial court, reasoning that, although the New Jersey Automobile Reparation Reform Act is to be liberally construed, the 1983 amendment to Section 4 was intended to restrict coverage to accidents that arise out of the use of an automobile. According to the panel, given the clearly restrictive intent of the 1983 amendment, the language of section 4 precludes judicial interpretation that Aversano's accident was legislatively intended to be covered by the PIP provisions of the statute.

The majority held that the term "while entering into" was intended by the Legislature to denote a process of entry that begins, at the earliest, when physical contact with the vehicle is made with intent to enter. The panel found that Aversano's accident occurred prior to entry and that his later incidental contact with the car came not during entry but as a result of his fall.

Judge Humphreys Dissented, finding the majority's holding contrary to fundamental principles governing the construction of the Act as well as to the reasonable expectations of the insured. According to the Dissent, the mechanistic approach relied on by the majority is not in accord with the guiding principle that courts must favor the insured and find coverage if possible. Moreover, the ordinary and reasonable expectation of the insured would be that when he was about to insert his key into the lock, he was entering the vehicle and, therefore, is entitled to PIP coverage.

Aversano appealed to the Supreme Court as of right based on the Dissent in ...

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