Before: Judges King, Muir, Jr. and Kestin.
The opinion of the court was delivered by: King, P.j.a.d.
 Argued: March 18, 1998
The issue in this appeal is whether an insurance carrier must provide personal injury protection (PIP) benefits, pursuant to N.J.S.A. 39:6A-4, *fn2 to claimants who sustained bodily injuries during assaultive carjacking incidents. The appeal concerns two consolidated cases which arise from similar factual patterns ---- assailants who shot the drivers while both were occupants of cars. We conclude that these cases fulfill the requisites for coverage: "bodily injury as a result of an accident sustained while occupying an automobile," within the interpretation of Lindstrom v. Hanover Ins. Co., 138 N.J. 242, 247 (1994) (4-3 decision), and Smaul v. Irvington Gen. Hosp., 108 N.J. 474, 478 (1987).
While we conclude that plaintiffs, victims of the two carjacking incidents, are entitled to PIP coverage under the circumstances of these assaults in their vehicles, we cannot decide on this record if the statutory defense of criminal participation in N.J.S.A. 39:6A-7 is available to the defendant insurance carriers, State Farm Indemnity Company and Prudential Property and Casualty Company. On this issue, we remand for further consideration.
Ponter v. Prudential Property & Casualty, A-4332-96T2
About 6:30 p.m. on November 27, 1994 plaintiff Ponter drove his mother's 1985 Chevrolet Blazer from his home in Paulsboro into the City of Camden to buy marijuana. He was alone. Prudential insured the family automobile under the name of his mother, Bessie Ponter.
Ponter had been to Camden previously to buy drugs. He knew where to go. He proceeded to a stop sign at an unknown intersection and bought a bag of marijuana for $10 from an individual who approached his car for that purpose. Ponter then intended to return home.
Ponter testified at his deposition that after he drove about a block, a young male jumped into the car and asked for a ride home. The young male asked Ponter why he came to Camden. Ponter replied that he had purchased marijuana. The male offered to get Ponter a bigger bag even though Ponter had no more money. Ponter then drove with the male to 780 Sycamore Street. The male left the car on the passenger's side and went into an apartment.
Ponter waited inside his car for several minutes. The male then reentered Ponter's car on the front passenger's side and put "two little, green bags" into Ponter's hand. Ponter then realized the bags contained cocaine or crack. He said he did not want them. The male never spoke to Ponter. After adjusting himself in the car seat so that he faced Ponter, the male pulled out a gun and fired three shots into Ponter's head. Two witnesses reported seeing the male suspect drive the vehicle away from the scene at a high rate of speed.
At 8:53 p.m. police responded to a report of an overturned vehicle at 8th and Sycamore Streets in Camden. While en route, residents reported a male (Ponter), bleeding from the head, lying in the street on the corner of 8th and Warnock Streets, about one-half block from the overturned vehicle. Ponter was taken to the Trauma Center at Cooper Medical Center with serious injuries. His urine screen tested positive for cocaine and opiates. He later was transferred to McGee Rehabilitation Center in Philadelphia for treatment of brain injuries.
After excellent investigative work, on March 13, 1995 the Camden police arrested A.K., a juvenile who attended Camden High School. Police initially charged A.K., age sixteen, as a juvenile with: carjacking, contrary to N.J.S.A. 2C:15-2; criminal attempt (murder), contrary to N.J.S.A. 2C:5-1; aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); and unlawful possession of a firearm, contrary to N.J.S.A. 2C:39-5b. A.K. pled guilty to the juvenile charges of carjacking and attempted murder; the other two charges were merged with the more serious crimes. On August 28, 1995 the Family Court Judge sentenced A.K. to the Youth Reception Center at Jamesburg for an indeterminate term not to exceed eight years.
On April 17, 1995 Ponter filed a complaint against Prudential seeking to recover PIP benefits. Prudential filed a motion for summary judgment and plaintiff filed a cross-motion for summary judgment. On March 10, 1997 the Law Division Judge denied Prudential's summary judgment motion and granted Ponter's cross-motion, ordering payment of PIP benefits. However, the Law Division Judge did not consider the applicability of the statutory exclusion pertinent to criminal activity, N.J.S.A. 39:6A-7(a)(1). *fn3
Stevenson v. State Farm, ...