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Constanza Zambrana, As Administratrix of the Estate of Santos Solano v. National Continental/ Progressive Insurance Company

May 26, 2011

CONSTANZA ZAMBRANA, AS ADMINISTRATRIX OF THE ESTATE OF SANTOS SOLANO, AND INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
NATIONAL CONTINENTAL/ PROGRESSIVE INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5919-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 8, 2010

Before Judges Gilroy, Ashrafi and Nugent.

This is an uninsured motorist coverage (UM) action. Plaintiff Constanza Zambrana, as the administratrix of the Estate of Santos Solano (her husband), and individually, appeals from the February 9, 2010 order that granted summary judgment to defendant National Continental/Progressive Insurance Company. Plaintiff also appeals from the April 22, 2010 order denying her motion for reconsideration.*fn1 We affirm.

I.

On November 24, 2009, plaintiff filed a complaint in the Law Division seeking to compel defendant to pay UM benefits for the death of her husband who was shot while operating a livery cab by a third party assailant. Defendant filed a motion seeking to dismiss the complaint for failure to state a claim upon which relief could be granted. Because the parties submitted matters outside the complaint, both in support of and in opposition to the motion, including discovery from a prior lawsuit between the parties, the court considered the motion as one for summary judgment. Following oral argument on February 9, 2010, the trial court entered an order supported by an oral decision granting summary judgment dismissing the complaint. On April 22, 2010, the court entered an order denying plaintiff's motion for reconsideration.

II.

Viewed most favorably to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record discloses the following. Solano owned and operated a livery cab in the City of Newark. Solano's motor vehicle was insured by defendant under a business automobile insurance policy that provided among other insurance coverages, single limit first party UM and underinsured motorist (UIM) coverage in the amount of $500,000 per accident. As to UM and UIM coverage, the policy provided that:

1. We will pay all sums the "insured" is legally entitled to recover as compensatory damages from the owner or driver of an "uninsured motor vehicle" or an "underinsured motor vehicle." The damages must result from "bodily injury" sustained by the "insured," or "property damage" caused by an "accident[."] The owner's or driver's liability for these damages must result from the ownership, maintenance or use of an "uninsured motor vehicle" or an "underinsured motor vehicle[."]

On October 9, 2004, shortly after 3:00 a.m., Solano was operating his automobile in Newark. At approximately the same time, two Newark police officers were in pursuit of a stolen vehicle. During the pursuit, the two vehicles stopped, and the occupants of the vehicle being pursued engaged the police in a shootout, resulting with one police officer being shot, along with one of the men in the second vehicle. After the shootout, three or four men got back into their vehicle and left the scene at a high rate of speed. As Solano was operating his automobile northbound on North 7th Street, a motor vehicle, believed to have been the one involved in the shootout with the police officers, passed Solano at a high rate of speed. Gun shots emanated from the second vehicle. At approximately 4:16 a.m., the police found Solano dead from a gunshot wound in his automobile at the intersection of Sixth Avenue and North 7th Street. As to Solano's automobile, investigating Detective Murad Muhammad noted that it had "a perforated bullet hole to the rear left side of the vehicle" as well as "lower damages to the left side doors from what appeared to be consistent [with] a motor vehicle accident."

On November 24, 2009, plaintiff filed her complaint. In January 2010, defendant moved to dismiss the complaint. On February 9, 2010, Judge Tolentino granted summary judgment, reasoning in relevant part that the undisputed evidence established that Solano died from a gunshot wound, and thus, his death was not caused by the use of an uninsured vehicle. On April 22, 2010, the court denied plaintiff's motion for reconsideration.

On appeal, plaintiff argues that the trial court erroneously relied in part upon the Supreme Court's decision in Livsey v. Mercury Ins. Group, 197 N.J. 522 (2009), contending that the facts in Livsey are distinguishable from those in the present matter. Plaintiff contends that defendant is obligated to provide UM coverage because her husband's fatal injuries "were a proximate cause ...


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