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Grabowski v. Liberty Mutual Insurance Company

November 28, 2001

JENNIFER GRABOWSKI AND RONALD GRABOWSKI, PLAINTIFFS-APPELLANTS
v.
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-0323-00.

Before Judges Braithwaite, Coburn*fn1 and Weissbard.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 22, 2001

Plaintiff, Jennifer Grabowski, appeals from an order dismissing her verified complaint, which sought a declaration that she was entitled to uninsured motorist (UM) coverage under her automobile liability insurance policy with defendant Liberty Mutual Insurance Company (Liberty). We conclude that the facts brought plaintiff within her policy's UM coverage and reverse.

On November 18, 1997, plaintiff was injured in the course of a carjacking in Delran Township. After seeking unsuccessfully to have Liberty name an arbitrator under the UM provisions of her policy, plaintiff filed a verified complaint and order to show cause asking the court to declare that the UM coverage did apply and to compel Liberty to name an arbitrator and proceed with arbitration. The trial court ordered a plenary hearing for the purpose of determining what it perceived to be the critical issues: (1) whether plaintiff or the carjacker was the operator of the vehicle when plaintiff was injured; and (2) whether her injuries were caused by falling out of the vehicle or were the result of an intentional criminal act.

Following the hearing, at which plaintiff was the only witness, the court found that the carjacker "wanted [plaintiff] out of the car," and that, as a result of a struggle for control, plaintiff was forced out of the moving vehicle, resulting in her injuries. Nevertheless, the court concluded that although the carjacker intended to gain control of the vehicle, he did not intend to harm plaintiff; her injuries being simply a "natural consequence" of his effort to gain control.

In Longo v. Market Transition Facility, 326 N.J. Super. 316 (App. Div. 1999), we held that where an individual sustains injuries arising out of the operation of an otherwise insured vehicle under circumstances "amounting to theft or the like," id. at 321, the vehicle is rendered uninsured for the purpose of triggering the UM endorsement of the automobile's insurance policy. Longo involved injuries sustained by the plaintiff when her car was operated by an unknown person and crashed into another vehicle while plaintiff was asleep from intoxication in the passenger seat. The individual operating the car was never identified. Because the vehicle was being operated under circumstances amounting to theft, the liability provision of plaintiff's policy did not apply. As a result, even though the plaintiff owned and insured the vehicle, it fit within the definition of an uninsured motor vehicle as set forth in N.J.S.A. 17:28-1.1e(2). Id. at 321.

We conclude that the reasoning of Longo applies in this case to render plaintiff's carjacked vehicle uninsured. Indeed, in dicta the Longo court gave the following as an example in support of its argument:

Almost weekly, our newspapers relate an event similar to the following: a woman entering her vehicle in a darkened parking lot is accosted by a stranger intent on stealing the vehicle. The thief pushes the woman into the vehicle and drives off with the victim as a passenger. The thief then crashes the vehicle into an object and runs from the scene, leaving the victim seriously injured. Could the Legislature possibly have intended the insured victim in such circumstances to be left without recourse? We think not. [Id. at 322-23.]

We see no meaningful distinction between the situation in Longo and the present case on the applicability of the policy's owned vehicle exclusion in the definition of uninsured motor vehicle. This conclusion, however, is only the first step in the required analysis.

In accordance with N.J.S.A. 17:28-1.1a, the Liberty policy issued to plaintiff provided that UM coverage would be afforded for injury sustained by an insured in an "accident" that must arise out of the "ownership, maintenance or use" of the uninsured vehicle. Thus, we must first determine if plaintiff's injuries were the result of an accident.

In Sciascia v. American Insurance Co., 183 N.J. Super. 352, 356 (Law Div. 1982), aff'd, 189 N.J. Super. 236 (App. Div. 1983), we held that "the question of whether an accident occurred must be viewed from the insured's perspective." Sciascia was a UM case arising out of "the deliberate firing of a shotgun by a passenger in a then moving automobile of an uninsured owner- operator. One of these shots struck and killed the insured." Sciascia, supra, 183 N.J. Super. at 353. However, in Lindstrom v. Hanover Insurance Co., 138 N.J. 242 (1994), a case involving a claim for Personal Injury Protection (PIP) coverage resulting from a drive-by shooting, the Court also had to consider the meaning of the word accident, and concluded that when viewed from the insured victim's perspective, the shooting was an accident in that it was unintentional. Id. at 252-53. In support of that approach, the Court cited with approval Pennsylvania National Mutual Casualty Insurance Co. v. Estate of Miller, 185 N.J. Super. 183, 187, 188 (App. Div. 1982), which had likewise held in the PIP context that, "whether an event constitutes an 'accident' must be determined from the perspective of the victim," and therefore an "accident" for PIP purposes may include the results of intentionally inflicted injury. See Lindstrom, supra, 138 N.J. at 249. However, after noting this court's opinion in Cerullo v. Allstate Insurance Co., 236 N.J. Super. 372 (App. Div. 1989), which explained the differences in philosophy between PIP and UM coverages, the Court specifically disapproved, as no longer constituting respectable authority, the holding in Sciascia to the extent that it "rests on the notion that for uninsured-motorist-coverage questions, courts must determine the issue of whether an accident occurred from the perspective of the covered victim rather than from that of the uninsured tortfeasor." Id. at 249-50.

Although the Court's statement concerning Sciascia could be viewed as dictum, since Lindstrom involved PIP coverage and Sciascia dealt with UM benefits, it was a clear and deliberate statement by our highest court which we feel obliged to follow.*fn2 See ...


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