On appeal from Superior Court of New Jersey, Law Division, Cumberland County, CUM-L-259-01. Capizola, Fineman & Lapham, attorneys for appellant (Darrell Fineman, of counsel; Jeannine V. Cavagnaro, on the brief). Margolis Edelstein, attorneys for respondent (Gary Weinberg, on the brief).
Before Judges Eichen, Weissbard and Landau
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 13, 2003
The opinion of the court was delivered by LANDAU, J.A.D., retired and temporarily assigned on recall.
Plaintiff, Ismael Negron, appeals from a Law Division order of April 19, 2002, that granted summary judgment to defendant, Colonial Penn Insurance Co., on his complaint for personal injury protection benefits (PIP) under the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -35 (Act).
Negron was a passenger in a vehicle operated by his brother- in- law, Carlos Lucena, when they and another passenger were leaving the parking lot of "Eugene's Bar" at its 2:00 a.m. closing time. The bar featured dancing to Latin music on weekends, and the lot was crowded with departing patrons. There were several disputes ongoing in the lot--a condition, discovery suggests, that was not unusual as the bar emptied out on weekends.
Viewed most favorably to plaintiff, the proofs showed that after Lucena had backed out of his parking space, a man was standing in front of Lucena's station wagon, blocking its exit. Lucena honked the horn, and the man began pounding on the hood. Lucena left the car, ostensibly to facilitate its movement by addressing the person who was pounding the hood. He was immediately assaulted and knocked down by several people.
In Negron's words, "he was knocked down in the ground, and that's when I opened the door, and I went to help him. . ." Asked, "[w]hat was your intention in getting out of the car[?]," Negron answered, "[t]o help my brother-in-law." Negron did not remember what happened after he got out of the car. According to eyewitnesses, he was struck violently from the rear on the side of his head by someone wielding an object, possibly a beer bottle. Negron sustained serious injuries.
One witness said Negron had gone around to the back of the vehicle before he was hit. Another witness, the second passenger of the Lucena vehicle, described it this way:
The first one that got hit was Carlos. Seconds. Ismael was with Carlos in the car. Carlos [sic] opened the door and when he seen Carlos was on the floor that's why he went to find out what's going on. He went around the car and this other guy came at him with a bottle. Boom. That's it.
As amended at the time of the March 1999 injury, N.J.S.A. 39:6A-4 required that automobile insurance policies, shall contain personal injury protection benefits for the payment of benefits without regard to negligence, liability or fault . . . to . . . persons sustaining bodily injury while occupying, entering into, alighting from or using the automobile of the named insured, with permission of the named insured . . .
The motion judge concluded that the record presented a situation where the plaintiff's purpose in exiting the vehicle was to help his brother-in-law who had been injured in a fight. Relying primarily upon our opinion in Vasil v. Zullo, 238 N.J. Super. 572 (App. Div. 1990), the judge reasoned that, however commendable, such purpose was not sufficiently "entwined with normal use" of a vehicle to bring this case within the ambit of PIP coverage.
Negron argues on appeal that a passenger who goes to the aid of a driver who has been attacked while protecting or clearing the path of an automobile is entitled to PIP benefits.
A substantial body of case law has developed concerning the statutory words "occupying . . . or using" an automobile in the context of eligibility for PIP benefits. The broad principle developed by case law has been summarized with disarming simplicity in Craig & ...