On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-648-98 and L-2586-99.
Before Judges Stern, Collester and Lintner.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Mark Shaw,*fn1 an undercover police officer employed by the City of Jersey City (the City), was injured on the job when he was struck by a vehicle which had been stolen. He filed a verified complaint against the City for Uninsured Motorist coverage (UM) and an order to show cause seeking to require Jersey City to appoint a UM arbitrator. The complaint also sought recovery from the owners of the vehicle and the Unsatisfied Claim and Judgment Fund (UCJF).*fn2 In a subsequent separate declaratory judgment action, New Jersey Manufacturers Insurance Company (NJM) sought a determination that it was not obligated to provide coverage under a policy of insurance issued to Shaw covering his personal automobile and providing UM benefits. Following the consolidation of both actions, a bench trial was held before Judge Gallipoli based, in part, upon stipulated facts. Judge Gallipoli found that UM coverage was not triggered because the event giving rise to plaintiff's injuries was not an accident.
The central issue raised in this appeal is whose perspective, the tortfeasor's or the insured victim's, must be used in determining whether an "accident" involving a motor vehicle occurred for the purposes of affording coverage under UM insurance. We hold that the language found in Lindstrom v. Hanover Insurance Company, 138 N.J. 242, 249 (1994), is controlling and Judge Gallipoli correctly concluded that the determination of whether an accident occurred must be viewed from the standpoint of the tortfeasor to trigger UM coverage. We also overrule Gregory v. Allstate Insurance Company, 315 N.J. Super. 78 (Law Div. 1997), and hold that, absent an express provision in an insurance policy to the contrary, UM protection does not extend to injuries resulting from the intentional use of an uninsured vehicle as an instrument of harm. Accordingly, we affirm.
The parties stipulated that plaintiff was in the course of his employment when he was involved in an incident arising from the use of an uninsured vehicle causing him to sustain a trimalleolar fracture of the left ankle. They further stipulated that plaintiff's damages were in excess of NJM's $35,000 policy limits; that, as between the City and NJM, NJM had the greater policy limits; and that any judgment entered in favor of plaintiff would be equal to the greater of the two policy limits. As a result, both NJM and the City agreed to its respective pro- rata share in the event of a judgment in favor of plaintiff.*fn3
The facts are not substantially in dispute. Plaintiff was the only witness to testify. On March 18, 1997, at approximately 12:30 a.m., plaintiff and his partner, Officer Edwin Nazario, were on plain-clothes patrol, looking for stolen vehicles. At the time, they occupied a parked, unmarked van when they observed a Jeep and Honda traveling south on Jersey Avenue at excessively high rates of speed. Realizing that the vehicles were heading toward a dark secluded area at the end of a dead-end street frequented by people who strip cars, they proceeded to a point near the dead end and parked. They waited a short time. When neither of the two vehicles came out, plaintiff exited the van and began to walk toward the location where the vehicles had traveled. He was halfway to the dead end when he saw the Jeep moving toward him. When he realized that the Jeep was "coming right at [him]," he drew his gun. The headlights were illuminated on the Jeep and it was traveling in excess of forty miles per hour. Plaintiff was wearing his badge on a chain around his neck. The Jeep continued to move toward him and, just at the moment that it would have made direct contact with him, he jumped to the left and the Jeep swerved to the right.
The Jeep hit his left leg. He acknowledged that the only reason that he had not been killed was because they both went in different directions. He further admitted that the police report of the incident failed to mention that the vehicle swerved out of the way. He conceded that it appeared to him to be a deliberate act. However, plaintiff did not believe that the driver intentionally tried to hit him but instead was attempting to get away with the stolen vehicle. Although he could see the driver's face as the incident unfolded, the driver was never found nor identified.
Judge Gallipoli found from plaintiff's testimony and the narrative of the events contained in the police report that plaintiff's injuries were caused by the "clearly intentional conduct of the uninsured tortfeasor who tried to run [plaintiff] down so as to escape arrest." He concluded, therefore, that plaintiff's injuries were not caused by an "accident," when viewed from the standpoint of the uninsured driver, but rather from the driver's intentional acts. Finding no accident, the judge found that UM coverage was not triggered, and entered judgment in favor of defendants, dismissing plaintiff's complaint.
Plaintiff essentially argues that he was involved in an accident under the terms of his UM insurance policy. He argues that the primary purpose of UM coverage is to replace claims that would have been made against the UCJF and that our case law supports the view that intentional torts which arise from the use of a motor vehicle are accidents under the terms of UM policies. We disagree.
We first consider plaintiff's claim that our decision in Kenny v. New Jersey Manufacturers Ins. Co., 328 N.J. Super. 403, 408 (App. Div. 2000) and the opinion in Proskurnja v. Elder, 73 N.J. Super. 466, 476 (Law Div. 1962), when read together, stand for the proposition that the statutory provisions establishing mandatory UM coverage are ...