Opinion
DOCKET NO. A-4446-13T2
07-16-2015
NATALEE GORDON AND JOSEPH GORDON, Plaintiffs-Appellants, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant-Respondent.
Pablo N. Blanco argued the cause for appellants (The Blanco Law Firm, L.L.C., attorneys; Mr. Blanco, on the brief). William P. Krauss argued the cause for respondent (Connell Foley, L.L.P., attorneys; Mr. Krauss and Edmund J. Caulfield, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-561-14. Pablo N. Blanco argued the cause for appellants (The Blanco Law Firm, L.L.C., attorneys; Mr. Blanco, on the brief). William P. Krauss argued the cause for respondent (Connell Foley, L.L.P., attorneys; Mr. Krauss and Edmund J. Caulfield, on the brief). PER CURIAM
In this case involving a carjacking, Natalee Gordon and her husband Joseph Gordon (collectively "plaintiffs") appeal from a May 9, 2014 order granting summary judgment to defendant Liberty Mutual Fire Insurance Company ("Liberty Mutual") and dismissing their complaint seeking uninsured motorist ("UM") benefits.
In considering the standards applicable to summary judgment motions, we disagree with the judge's legal analysis regarding whether plaintiffs were entitled to UM benefits related to the carjacking. On this record, we conclude that (1) the assailant is considered an "operator" of Natalee's vehicle for UM purposes; and (2) Natalee's injuries "arose out of the ownership, maintenance or use" of Natalee's vehicle because of the substantial connection between the vehicle and the carjacking. We therefore reverse.
On May 9, 2014, the judge also denied plaintiffs' motion for partial summary judgment seeking a declaration that they were entitled to UM benefits. Plaintiffs have not appealed from that order. Although the soundness of that order is not before us, we vacate the order in light of our conclusions. Plaintiffs may renew their motion before the judge seeking partial summary judgment.
I.
We discern the following facts from the motion record, viewing the competent evidence in the light most favorable to plaintiffs.
Natalee owned a 2006 Mercedes Benz. She maintained automobile insurance under a standard policy (the "policy") issued by Liberty Mutual. The policy provided UM benefits in the amount of $25,000 per person.
She drove home, pulled up to the driveway in front of her residence, and parked the Mercedes. Two men immediately approached her demanding the car keys. Natalee resisted, but they threw her to the ground, took the keys, and drove away in the Mercedes. She then called the police.
Natalee gave two statements about the incident. She told the police that as she was "stepping out of" the Mercedes, two men "walked towards her" and "demanded" the keys. After a "struggle over the keys" she dropped the keys to the ground, one of the men picked up the keys, both men then entered the Mercedes and fled the scene. Natalee also gave a statement to an insurance adjuster at Liberty Mutual. She told him that she parked the Mercedes in front of her house, blocking her driveway, and that she was "[r]ight by the [Mercedes'] door[,]" maybe two feet away, when the men approached her.
Natalee sustained injuries as a result of the incident. She demanded UM benefits under the policy, but Liberty Mutual denied insurance coverage. Plaintiffs filed this complaint against Liberty Mutual seeking UM benefits. The parties cross-moved for summary judgment on that issue.
The judge conducted oral argument, entered the order under review, and rendered an oral opinion. He concluded that because Natalee was standing outside the Mercedes, albeit two feet away, there was no substantial nexus between the carjacking and the injuries. The judge stated that
[c]ertainly without question[,] the [Mercedes] may have been the target of the assailants, they may have intended to steal the [Mercedes], but the[] [men] . . . were not considered . . . operators of the [Mercedes] at the time of [Natalee's] injuries . . . . They became operators after the fact.
II.
On appeal, plaintiffs argue that the judge erred as a matter of law. They maintain that (1) the carjacking rendered the Mercedes an uninsured vehicle; (2) the assailant is an "operator" of the Mercedes for UM purposes; and (3) that there is a substantial nexus between the Mercedes and Natalee's injuries. As a result, plaintiffs contend that the judge erred by dismissing the complaint.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governed the trial court. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
For purposes of this appeal, the parties agree that the facts are not in dispute. Because the judge resolved legal questions, we review his conclusions on issues of law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A.
We agree with plaintiffs' first contention, that the Mercedes is uninsured because of the carjacking. We have previously considered whether a theft-type setting renders an insured vehicle uninsured for UM purposes. In Longo v. Market Transition Facility of New Jersey, 326 N.J. Super. 316, 321 (App. Div. 1999), we held that where an individual sustains injuries arising out of the operation of an otherwise insured vehicle, "the operation of an insured vehicle under a factual scenario amounting to 'theft, or the like' . . . renders the vehicle 'uninsured' within the meaning of the UM statute" set forth in N.J.S.A. 17:28-1.1e(2).
B.
As to plaintiffs' second argument, that the assailant is an "operator" of the Mercedes, we note that the term "operator" is not defined in the UM statute, nor is there any indication that the term is defined in the policy.
The term "operator" has been defined in other contexts. For instance, in Title 39, the Legislature defined operator as a "person who is in actual physical control of a vehicle[.]" N.J.S.A. 39:1-1. And for purposes of driving while under the influence of alcohol, N.J.S.A. 39:4-50, the Court has defined operator to include conduct that evidences an intent to drive combined with movements to put the car in motion. State v. Mulcahy, 107 N.J. 467, 479 (1987).
We conclude that a determination of who is an "operator" for UM purposes is fact-sensitive and such an inquiry involves consideration of all of the surrounding circumstances in resolving the question. Here, giving plaintiffs the benefit of all reasonable inferences as we must at this stage, we are convinced that the verbal actions and physical movements of the men indicated their intent to exercise actual physical control over the Mercedes, even though they had not yet physically entered the vehicle when Natalee sustained her injuries. Thus, the assailant who drove away from the scene was an "operator" of the Mercedes for UM purposes.
C.
We also agree with plaintiffs' third contention, that there is a substantial nexus between the Mercedes and Natalee's injuries.
We note preliminarily that recovery of UM benefits requires more than proof that a vehicle is uninsured. Grabowski v. Liberty Mut. Ins. Co., 345 N.J. Super. 241, 244 (App. Div. 2001). The claimant seeking benefits must also prove (1) that the claimed injuries were the result of an "accident" and (2) the injury "ar[o]se out of the 'ownership, maintenance or use' of the uninsured vehicle." Ibid. We focus on whether her injuries arose out of the "use" of the Mercedes because it is uncontested that Natalee's injuries resulted from an "accident."
Ordinarily, "the accidental nature of an occurrence is determined by analyzing whether the alleged wrongdoer intended or expected to cause an injury." Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 183 (1992). In making that determination, we look to "the actor's subjective intent to cause injury." Id. at 184. Thus, "[i]t is the intent to injure, rather than the intent to commit the act that is important." Merrimack Mut. Fire Ins. Co. v. Coppola, 299 N.J. Super. 219, 227 (App. Div. 1997) (citing S.L. Indus. v. American Motorists, 128 N.J. 188, 207 (1992)). On this record, there is no credible evidence that the men intended to harm Natalee; rather, giving plaintiffs the benefit of all reasonable inferences as we must at this stage, the men pushed Natalee solely to obtain the keys of the Mercedes. --------
Similar to the term "operator," the UM statute does not define the phrase "arising out of the . . . use of a motor vehicle." N.J.S.A. 17:28-1.1a. In Grabowski, supra, 345 N.J. Super. at 243, we held that the plaintiff, who was injured when forced out of a moving vehicle as a carjacker attempted to gain control of it, was entitled to recover UM benefits. We concluded, in our analysis of whether the plaintiff's injuries arose out of the "use" of the vehicle, that there was a substantial nexus between the automobile and the injuries. Id. at 247.
We have also found coverage where there has been a substantial connection between the use of the uninsured vehicle and the injury-producing event. Shaw v. Jersey City, 346 N.J. Super. 219, 227 (App. Div.), rev'd on other grounds, 174 N.J. 567 (2002); Grabowski, supra, 345 N.J. Super. at 247. On the other hand, coverage has been denied where the intentional wrong was accomplished through an instrumentality other than a motor vehicle and was unrelated to the normal use of the vehicle. See, e.g., Vasil v. Zullo, 238 N.J. Super. 572 (App. Div. 1990) (knife); Cerullo v. Allstate Ins. Co., 236 N.J. Super. 372 (App. Div. 1989) (fist); Sciascia v. Am. Ins. Co., 183 N.J. Super. 352 (Law Div. 1982) (shotgun), aff'd o.b., 189 N.J. Super. 236 (App. Div. 1983).
On this record, we are satisfied that there was a substantial nexus between the use of the Mercedes and Natalee's injuries. We see no meaningful distinction between Natalee's injuries, which were caused by being pushed to the ground two feet from the Mercedes, and those of the plaintiff in Grabowski, supra, 345 N.J. Super. at 243, which were caused as she fell or was pushed out of the car. In both cases, the use of the car played a critical role in the resulting injuries. Natalee had returned home in the Mercedes, stepped out of it in front of her house, and was immediately accosted by the men. There was direct involvement of the Mercedes in the injury-producing event. See also Smaul v. Irvington Gen. Hosp., 108 N.J. 474, 478 (1987) (holding an injury resulting from an intent to steal a vehicle makes the vehicle "central to the incident").
D.
Finally, we conclude that the factual circumstances of this carjacking are a risk against which the parties "might reasonably expect those insured under the policy would be protected." Tornatore v. Selective Ins. Co. of Am., 302 N.J. Super. 244, 250 (App. Div. 1997) (quoting Westchester Fire Ins. Co. v. Continental Ins. Co., 126 N.J. Super. 29, 38 (App. Div. 1973), aff'd o.b., 65 N.J. 152 (1974)). It is foreseeable that a carjacking may not only result in damage to or loss of a vehicle but also possible injury to persons present at the time of the carjacking. Carjacking is not an isolated event and has become a "pressing public problem." State v. Williams, 289 N.J. Super. 611, 618 (App. Div.), certif. denied, 145 N.J. 3 75 (1996).
The UM statute's remedial purposes are two-fold: "to provide maximum remedial protection to the innocent victims of financially irresponsible motorists and to reduce the drain on the financially troubled Unsatisfied Claim and Judgment Fund." Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 503-04 (1987). We do not view extending coverage to insureds who sustain injuries during the course of a carjacking where there is a substantial nexus between the use of the motor vehicle and the injury-producing event as being inconsistent with these two-fold purposes.
We subscribe to a case-by-case factual analysis, which ensures that where the facts do not point to operation by the carjacker or do not establish the requisite substantial nexus between the use of the uninsured motor vehicle and the injury-producing event, coverage will be denied. Viewing the facts in the light most favorable to plaintiffs, we conclude that Liberty Mutual is not entitled to summary judgment as a matter of law.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION