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Stewart v. Royal Insurance Co.

February 26, 1999

EDWARD G. STEWART, PLAINTIFF/APPELLANT,
v.
ROYAL INSURANCE COMPANY, AS REPRESENTATIVE OF THE NEWARK INSURANCE COMPANY, DEFENDANT/RESPONDENT.



Before Judges King, Wallace and Fall.

The opinion of the court was delivered by: Wallace, Jr., J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 13, 1999

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

Plaintiff Edward Stewart appeals from an entry of summary judgment dismissing his complaint against defendant Royal Insurance Company seeking personal injury protection (PIP) benefits. The motion Judge held the statutory exclusion for criminal conduct applied to deny plaintiff's claim. On appeal, plaintiff contends he is entitled to PIP benefits as he does not fall within the exclusion in N.J.S.A. 39:6A-7, and that public policy requires the PIP exclusionary provision should not be applied, even if applicable. We hold plaintiff is precluded from recovering PIP benefits because his injuries occurred while committing a high misdemeanor or felony.

In the early morning hours of September 10, 1995, plaintiff was involved in a one-car accident when his vehicle swerved off the roadway, went into a ditch, and rolled over. The passenger in his vehicle was ejected and died from injuries suffered in the accident. Plaintiff sustained serious head and neck injuries. At the time of the accident, plaintiff's blood-alcohol content was .273 percent, well in excess of the level of .10 percent in N.J.S.A. 39:4-50.1. Plaintiff admitted to consuming a large quantity of alcohol prior to the accident and to driving with a suspended driver's license as a result of a previous drunk driving conviction. Plaintiff was charged with, and pled guilty to, third-degree death by auto, N.J.S.A. 2C:11-5. *fn1 Pursuant to the plea agreement, plaintiff was sentenced to a non-custodial probationary term with two-hundred-seventy days of community service, alcohol evaluation and treatment, along with appropriate fines and penalties.

Plaintiff was insured by defendant. He sought PIP benefits in accordance with N.J.S.A. 39:6A-4. Defendant denied plaintiff's request relying on the statutory exclusion in N.J.S.A. 39:6A-7 which authorizes exclusion of such benefits where the insured's injuries occurred while committing a high misdemeanor or felony.

Plaintiff then filed a declaratory judgment action seeking a judgment requiring defendant to pay his medical bills resulting from his accident. Following discovery, defendant filed a motion for summary judgment and plaintiff cross-moved for summary judgment. As noted, the motion Judge granted judgment in favor of defendant, concluding that benefits were properly denied pursuant to N.J.S.A. 39:6A-7(a)(1).

Neither party urged that the matter was not ripe for Disposition by summary judgment under the standards of Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). See R. 4:46.

Plaintiff urges that his conduct does not fall within the exclusion of N.J.S.A. 39:6A-7. He contends Kaplowitz v. State Farm Mut. Auto. Co., 201 N.J. Super. 593 (Law Div. 1985), is support for his position and that a finding of coverage is consistent with the public policy of providing the broadest possible personal injury protection. Defendant also cites to Kaplowitz, but as justification for exclusion of plaintiff's claim.

It is clear that personal injury protection coverage is considered "`a social necessity'" and therefore our Supreme Court directs the "`broadest application consistent with the statutory language.'" Lindstrom v. Hanover Ins. Co., 138 N.J. 242, 247 (1997) (quoting Darel v. Pennsylvania Mfrs. Ass'n Ins. Co., 114 N.J. 416, 425 (1989) (quoting Amiano v. Ohio Cas. Ins. Co., 85 N.J. 85, 90 (1981))). Moreover, "[i]nsureds are entitled to coverage in accordance with their objectively-reasonable expectations that are supported by any fair interpretation of the law." Ibid.

N.J.S.A. 39:6A-7(a) provides in part:

Insurers may exclude a person from benefits under section 4 and section 10 where such person's conduct contributed to his personal injuries or death occurred in any of the following ways:

(1) while committing a high misdemeanor or felony or seeking to avoid lawful apprehension or ...


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