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SUPREME COURT OF NEW JERSEY
MARK S. SHAW,
Plaintiff-Appellant,
v.
CITY OF JERSEY CITY, et al.,
Defendants
A-101 September Term 2001
174 N.J. 567; 811 A.2d 404
September 9, 2002,
Argued
December 11, 2002, Decided
The opinion of the Court was delivered by
ZAZZALI, J.
In this appeal we must decide whether a tortfeasor's intentional act
may constitute an "accident" within the meaning of New Jersey's
uninsured motorist statute, N.J.S.A. 17:28-1.1. The courts below relied on this
Court's dictum in Lindstrom by Lindstrom v. Hanover Ins. Co. ex rel. New Jersey
Auto. Full Ins. Underwriting Ass'n, 138 N.J. 242, 649 A.2d 1272 (1994), to hold
that N.J.S.A. 17:28-1.1 does not extend coverage to an insured injured by a
third party's intentional conduct. We conclude, however, consistent with the Legislature's intent in
enacting the uninsured motorist statute, as well as the reasonable expectations
of the insured, that an injury caused by an intentional act may qualify as an
"accident" under N.J.S.A. 17:28-1.1. We reverse.
I
One evening
in March of 1997, plaintiff, an undercover police agent for the City of Jersey
City, and his partner, Edwin Nazario, sat parked in an unmarked police van on a
side street off Jersey Avenue. Plaintiff was on the lookout for stolen cars
that automobile thieves frequently stripped at the Avenue's dead end. Shortly
after midnight, plaintiff observed two automobiles traveling southbound down
Jersey Avenue in the direction of the dead end. When those vehicles failed to
return, plaintiff drove the van to a location approximately halfway between the
dead end and plaintiff's [*570] earlier vantage point. Plaintiff parked there
and exited the van. He then displayed his badge and approached the two vehicles
on foot. As he drew closer, one of the vehicles, a Jeep, began to drive toward
plaintiff at a high rate of speed. Plaintiff drew his gun and pointed it at the
vehicle's windshield.
Plaintiff testified at trial
that when he realized that the Jeep was not going to stop, he jumped to the
left, while the driver of the Jeep swerved in the opposite direction. Officer
Nazario's accident report, however, stated that the driver of the Jeep
"with disregard to human life deliberately steered for and struck"
plaintiff. It is undisputed that the Jeep hit plaintiff, breaking his ankle in
three places. The driver fled and was not apprehended.
Although
the Jeep was insured, its insurer declined coverage because it had been stolen.
Plaintiff had uninsured motorist coverage under his personal policy with New
Jersey Manufacturers Insurance Company (NJM) in the amount of $35,000, and was
also entitled to $15,000 in uninsured motorist coverage from the City.
Plaintiff filed a complaint
seeking to recover from the City, NJM, the owners of the stolen vehicle and the
Unsatisfied Claim and Judgment Fund (UCJF) Board. Plaintiff's claims against
the City and NJM asserted that because he was struck by a stolen vehicle
operated by an unknown person he was entitled to uninsured motorist coverage.
NJM responded by filing a declaratory judgment complaint seeking a
determination that it was not required to provide coverage under plaintiff's
personal automobile insurance policy.
The trial court consolidated those actions and conducted a bench
trial. Prior to the trial the City elected not to contest the availability of
its uninsured motorist coverage. The court also dismissed plaintiff's claims
against the vehicle's owners and the UCJF. The trial court then addressed NJM's
denial of uninsured motorist coverage under plaintiff's personal policy.
Plaintiff's policy required in part that NJM[*571]
pay compensatory damages which an insured is legally entitled to
recover [**407]from the owner or operator of an uninsured motor vehicle or
underinsured motor vehicle because of:
1. Bodily injury sustained by an insured and caused by an
accident . . . .
After hearing plaintiff's testimony, the trial court held that
plaintiff was not entitled to recover uninsured motorist benefits from NJM.
Regarding itself bound by this Court's dictum in Lindstrom, supra, 138 N.J. at
249-50, the trial court found that the intentional conduct of the uninsured
tortfeasor caused plaintiff's injury and therefore ruled that no accident
occurred. Because plaintiff's NJM policy provided uninsured motorist coverage
only in the event of an accident, the trial court entered judgment for NJM.
The Appellate Division affirmed the trial court's decision. Shaw v. City of Jersey City, 346 N.J. Super.
219, 787 A.2d 268 (2002). The panel held that "unlike the claims against
the UCJF, claims for which UM coverage applies are limited to those arising
from accidental injury or damage." Id. at 226. The panel also relied on
Lindstrom, supra, 138 N.J. at 249, to rule that "the term 'accident' must
be viewed from the perspective of the tortfeasor, not the insured," and
therefore "does not include intentional conduct." Shaw, supra, 346
N.J. Super. at 227.
We granted certification. 172 N.J. 177 (2002).
II
The uninsured motorist statute, N.J.S.A. 17:28-1.1,
serves two purposes. It is designed to "provide maximum remedial
protection to the innocent victims of financially irresponsible
motorists," Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493,
503, 531 A.2d 717 (1987), and to "reduce the drain on the
financially-troubled Unsatisfied Claim and Judgment Fund." Id. at 503-04.
Prior to passage of the statute, "statutory reliance for
the direct relief of victims of uninsured motorists was at first placed [*572]
solely on the Unsatisfied Claim and Judgment Fund . . . ." Motor Club of
Am. Ins. Co. v. Phillips, 66 N.J. 277,
284, 330 A.2d 360 (1974). The UCJF law,
N.J.S.A. 39:6-61 to -91, "provides a measure of relief for persons who
sustain losses or injury inflicted by financially irresponsible or unidentified
owners or operators of motor vehicles, where such persons would otherwise be
remediless." Corrigan v. Gassert, 27 N.J. 227, 233, 142 A.2d 209 (1958).
In 1968, the Legislature passed the uninsured motorist statute,
which mandated that insurers offering automobile liability insurance also offer
uninsured motorist protection. N.J.S.A.
17:28-1.1. That same act also stated that
insureds carrying uninsured motorist coverage were not "qualified
persons" able to pursue a claim against the UCJF. N.J.S.A. 39:6-62. The Legislature intended
this coverage scheme "to give relief to the Fund, which, at that time, was
approaching insolvency because of the growing gap between its income and the
volume of claims upon it." Motor Club, supra, 66 N.J. at 284.
Under the current statutory scheme, uninsured motorist
coverage is governed by N.J.S.A. 17:28-1.1, which requires motor vehicle
liability policies to provide coverage up to certain minimums for payment of
all or part of the sums which the insured . . . shall be legally entitled to
recover as damages from the operator or owner of an uninsured motor vehicle, or
hit and run motor vehicle, as defined in [ N.J.S.A. 39:6-78] . . . because of
bodily injury . . . sustained by the insured, caused by accident and arising
out of the ownership, maintenance or use of [**408] such uninsured or hit and
run motor vehicle . . . .
[ N.J.S.A. 17:28-1.1a (emphasis added).]
Over the past two decades the courts of this State have
disagreed about the meaning of the uninsured motorist statute's requirement
that the harm to the injured insured be "caused by accident." In Sciascia
v. Am. Ins. Co., 183 N.J. Super. 352, 443 A.2d 1118 (Law Div. 1982), aff'd
o.b., 189 N.J. Super. 236, 459 A.2d 1198 (App. Div. 1983), the court extended
uninsured motorist coverage to an insured killed by gunshots fired from a
moving automobile. It ruled that "so far as uninsured motorist coverage is
concerned, the question of whether there was an 'accident' must [*573] be
evaluated from the viewpoint of the insured." Id. at 356. The court
distinguished between traditional liability insurance, under which "an
intentional wrong is not considered to be an accident," and uninsured
motorist coverage, under which the tortfeasor's "intent or purpose is
immaterial." Id. at 355-56.
This Court first addressed these issues in Allstate Ins. Co. v.
Malec, 104 N.J. 1, 514 A.2d 832 (1986). In Malec , we characterized as
"eminently sound" an Appellate Division opinion that held that
"for purposes of PIP benefits the word 'accident' did not exclude
intentional occurrences, 'except where the conduct of the injured person was
implicated.'" Id. at 10 (quoting Pennsylvania Nat'l Mut. Cas. Ins. Co. v.
Estate of Miller, 185 N.J. Super. 183, 187, 447 A.2d 1344 (App. Div. 1982)). We
observed that both uninsured motorist coverage and PIP benefits constitute
"first-party coverage designed to compensate [an] injured party."
Ibid. (citing Sciascia, supra, 183 N.J. Super. at 357). Although in Malec we
did not explicitly hold that the intentional acts of a tortfeasor may qualify
as accidents under an uninsured motorist policy, our comparison of PIP and
uninsured motorist coverage suggested that conclusion.
In Lindstrom, supra, however, this Court revised the approach
to uninsured motorist coverage it endorsed in Malec and distinguished in dictum
between PIP coverage and uninsured motorist coverage. 138 N.J. at 249. We found
that "PIP coverage differs from both automobile-liability and
uninsured-motorist coverage, neither of which applies to injuries caused by an
act that is an accident from the victim's perspective but that is intended by
the actor." Ibid. We cited Cerullo v. Allstate Ins. Co., 236 N.J. Super.
372, 565 A.2d 1125 (App. Div. 1989), for the proposition that "differences
between PIP and uninsured-motorist coverages are traceable to the significantly
different needs that each coverage satisfies." Lindstrom, supra, 138 N.J.
at 249. We also expressly overruled Sciascia to the extent that it held that a
determination of whether an incident involving an [*574] uninsured motorist
constitutes an "accident" must be arrived at from the perspective of
the injured insured. Ibid.
In Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999), the United
States Court of Appeals for the Third Circuit, applying New Jersey law, called
into question Lindstrom's discussion of uninsured motorist coverage and instead
applied the perspective of the injured insured to decide whether an occurrence
may qualify as an "accident" that triggers the plaintiff's uninsured
motorist coverage. Id. at 296-97. The Abraham court observed that uninsured motorist coverage "protects
an insured from harm caused by other people's acts, and an insured is equally
blameless and surprised regardless of whether the tortfeasor acted negligently
or intentionally." [**409] Id. at 298. It further reasoned that
"covering the insured [where a harm has resulted from the intentional act
of a third-party tortfeasor] does not encourage the insured to commit
intentional, wrongful acts and protects the insured from unexpected
losses." Ibid. We agree with the Third Circuit because we are now
persuaded that both objectives of the uninsured motorist statute are served by
including the intentional conduct of a tortfeasor within the ambit of uninsured
motorist coverage. We consequently set
aside the contradictory dictum of Lindstrom.
III
A
As we have
noted, one of the objectives of uninsured motorist coverage is to provide
"maximum remedial protection to the innocent victims of financially
irresponsible motorists." Riccio, supra, 108 N.J. at 503. Uninsured motorist coverage protects those
"who have had the foresight to protect themselves, and other parties in
interest," by providing recourse to insured drivers for incidents caused
by the wrongful or tortious acts of uninsured motorists, hit-and-run drivers,
or other drivers from whom a recovery is unlikely. 8C Appelman, Insurance Law
and Practice § 5067.45 (1981). It concerns itself not with indemnifying [*575]
tortfeasors who have caused injury, but instead with ensuring that injured
insureds are made whole. Riccio, supra, 108 N.J. at 504. As one commentator has
noted, uninsured motorist statutes create a new procedure for recovery, with
recovery not against the tortfeasor, but against the injured party's own
insurer. Accordingly, UM coverage is not another liability coverage available
to the innocent victim, but, rather, it is in the nature of an accident policy,
and, as such, provides first-party benefits as opposed to a liability policy
which pays third-party benefits.
[9 Couch on Ins. § 122:5 (3d ed. 1997).]
Thus, whether the uninsured tortfeasor acted
intentionally does not control the availability of uninsured motorist coverage,
which pays benefits directly to the injured insured. The intentional acts of
the tortfeasor are relevant only to justify a denial of third-party liability
coverage under an intentional acts exclusion or clause of similar import in a
liability policy applicable to the "uninsured motor vehicle." It
matters not to the definition of "uninsured motor vehicle" whether
the tortfeasor has no insurance at all, the tortfeasor's insurer denies
coverage pursuant to an exclusionary clause in the policy, or the tortfeasor's
insurer is insolvent and unable to pay.
N.J.S.A. 17:28-1.1e(2).
When an
insurer denies third-party liability coverage for whatever reason,
"precisely the same situation exists . . . as if no insurance had been
carried at all." 8C Appelman, supra, at § 5076.15. In either scenario,
third-party coverage is unavailing and an injured victim must resort to
available first-party remedies, including uninsured motorist coverage, for
relief. Although an intentional tort
may cause a third-party insurer to deny coverage to the detriment of an injured
party, that denial also cannot limit the availability of the injured party's
first-party coverage. Extending uninsured motorist coverage irrespective of
whether the insured's injury was caused by an intentional act maximizes the
scope of the protection available under N.J.S.A. 17:28-1.1, thereby giving effect to its legislative
intent. [*576]
B
As noted,
the Legislature also intended that uninsured motorist coverage "reduce the
drain on the financially-troubled Unsatisfied [**410] Claim and Judgment
Fund." Riccio, supra, 108 N.J. at 503-04. To this end the UCJF law, N.J.S.A. 39:6-61 to -91, now
provides that a "qualified person" who files a claim against the UCJF
cannot be "insured under a policy provision providing coverage for damages
sustained by the insured as a result of the operation of an uninsured motor
vehicle . . . ." N.J.S.A. 39:6-62. This provision effectively forecloses
insureds possessing uninsured motorist coverage from recovering against the
UCJF. In effect, the Legislature has created a parallel remedial scheme, with
those insureds possessing uninsured motorist coverage required to recover
pursuant to N.J.S.A. 17:28-1.1, and those who do not possess uninsured motorist
coverage permitted to recover from the UCJF.
Because
uninsured motorist coverage was implemented to provide relief to the UCJF, to
construe the term "accident" more restrictively under the uninsured
motorist statute than under the UCJF would defeat the Legislature's intent.
See Kenny v. N.J. Mfrs. Ins. Co.,
328 N.J. Super. 403, 408, 746 A.2d 57 (App. Div. 2000). See also Gorton v. Reliance Ins. Co., 77 N.J. 563,
572, 391 A.2d 1219 (1978) (holding that term "uninsured automobile"
previously found in uninsured motorist statute must be read to have same
definition as "uninsured motor vehicle" in UCJF Law because purpose
of uninsured motorist statute was to relieve burden on UCJF).
Our courts have held that a qualified claimant may proceed against the UCJF irrespective of
whether her injuries were caused by the intentional act of a third party. See
Proskurnja v. Elder, 73 N.J. Super. 466, 473, 180 A.2d 200 (Law Div.
1962), Obst v. State Farm Mut. Auto. Ins. Co., 123 N.J. Super. 60, 67, 301 A.2d
469 (Ch. Div. 1973), aff'd o.b., 127 N.J. Super. 458, 317 A.2d 759 (App. Div.
1974) ("The Fund does not distinguish between intentional and
nonintentional torts."). Those cases have treated the [*577] UCJF claim as
a first-party action to which the state of mind of the tortfeasor is
irrelevant. The validity of the claim is not dependent on whether the
tortfeasor would have been entitled to coverage had he or she had a liability
policy applicable to the vehicle involved.
Because the
legislative history and purpose of the uninsured motorist statute favor an
interpretation that extends the same protections under uninsured motorist
insurance as are available under the UCJF, and because claimants may recover
from the UCJF for injuries resulting from intentional acts, we hold that the
requirement set forth in N.J.S.A. 17:28-1.1 that an insured's injury be
"caused by accident" does not preclude an injured insured from
seeking first-party relief under his or her own policy of uninsured motorist
insurance for injuries caused by the intentional acts of third parties. Our
holding today furthers the legislative design of N.J.S.A. 17:28-1.1 by
requiring that courts treat persons carrying statutorily-required uninsured
motorist coverage at least as well as those who lack such coverage and
consequently must resort to the UCJF for compensation.
C
Aside from
those considerations unique to N.J.S.A. 17:28- 1.1, general principles of
insurance law also dictate our result. Insurance contracts typically are contracts
of adhesion, prepared unilaterally by the insurer. Sparks v. St. Paul Ins. Co.,
100 N.J. 325, 335, 495 A.2d 406 (1985). Courts must therefore "assume a
particularly vigilant role in ensuring their conformity to public policy and
principles of fairness." Voorhees v. Preferred Mut. Ins. [**411] Co., 128
N.J. 165, 175, 607 A.2d 1255 (1992).
Members of the public who purchase insurance policies are entitled to a
"broad measure of protection necessary to fulfill their reasonable
expectations." Kievit v. Loyal Protective Life Ins. Co., 34 N.J. 475, 482,
170 A.2d 22 (1961). To the extent that the term "accident" in the
context of uninsured motorist coverage is ambiguous, construing it to include
intentional acts committed [*578]against an innocent insured satisfies those
reasonable expectations. We agree with the Montana Supreme Court's observation
that "the average insured reasonably expects that, so long as an
injury-causing event is unforeseen and unprovoked by the insured, injuries
caused by uninsured motorists will be covered by UM coverage regardless of
whether they were caused negligently or intentionally." Wendell v. State
Farm Mut. Auto. Ins. Co., 1999 MT 17, 974 P.2d 623, 635, 293 Mont. 140 (Mont.
1999). Nothing in the language of plaintiff's uninsured motorist policy
suggests to the policy purchaser that coverage for a "bodily injury
sustained by an insured and caused by an accident" is contingent on the
state of mind of a third party. The insured plaintiff has paid a premium and is
entitled to be protected to the extent of his reasonable understanding of the
terms of his insurance policy. This result is consistent with a majority of
jurisdictions that have addressed the issue of whether an intentional act may
qualify as an "accident" for purposes of uninsured motorist coverage.
974 P.2d at 629-30 (citing jurisdictions that have adopted majority approach).
IV
Applying
our holding that uninsured motorist coverage extends to injuries caused by the
intentional acts of a tortfeasor, we conclude that when plaintiff was struck by
the stolen Jeep an "accident" occurred within the meaning of his uninsured
motorist policy. This result is consistent with both legislative design and the
reasonable expectations of plaintiff.
We recognize that in appropriate circumstances coverage may be
withheld when injury to the insured results from his or her own intentional or
negligent actions. On this record,
however, there is nothing to suggest that plaintiff materially contributed to
the infliction of his injury. We therefore reverse and remand to the trial
court for an entry of judgment for plaintiff in accordance with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, LaVECCHIA and
JUDGE PRESSLER, temporarily assigned, join in JUSTICE ZAZZALI's opinion.
JUSTICE VERNIERO filed a separate dissenting opinion.
VERNIERO, J., dissenting.
This case is not about an uninsured motorist whose car
accidentally collided with an unsuspecting pedestrian. Rather, as the trial
court explicitly found, it is about a perpetrator who escaped arrest by using
an automobile as an instrument to injure a police officer acting in pursuit of
the perpetrator himself. The trial court's finding was consistent with an
investigative report filed by the officer's partner, an eyewitness to the
incident. That report indicates that "the driver . . . with disregard to
human life deliberately steered for and struck [the officer] sending him to the
ground as he attempted to seek cover."
On those facts, I do not believe that the trial court erred in
following this Court's dictum in
Lindstrom by Lindstrom v. Hanover Ins. Co. ex rel. New Jersey Full Auto. Ins.
Underwriting Ass'n that courts must view uninsured-motorist (UM) coverage from
the perspective of the uninsured tortfeasor. 138 N.J. 242, 249 (1994). Assume
for the moment, however, that it did. In an alternate portion of its ruling,
the trial court also considered events from the perspective of the officer, the
injured plaintiff. The trial court explained: [**412]
From the testimony of Shaw and taking into account the narrative
of the event in question as is contained in the police reports (J3EVD), I find
as a fact that the incident causing Shaw's injury was not an
"accident" within the contemplation of the applicable law or the NJM
policy (P2EVD) such as would entitle him to recover UM benefits. Moreover, even
if considered from the perspective of plaintiff, I find that Shaw's injury was
caused by the clearly intentional conduct of the uninsured tortfeasor who tried
to run Shaw down so as to escape arrest. Accordingly, it is my determination
that plaintiff Shaw is not entitled to recover UM benefits from NJM because
Shaw did not sustain an injury caused
by an "accident" involving an uninsured vehicle, which is the
predicate, according to the policy language, for such recovery.
[(Emphasis added).]
Thus, the trial court explicitly found that plaintiff's
assailant intentionally caused plaintiff's injuries. Adopting either the
motorist's or victim's perspective, the trial court was satisfied that no
accident had occurred. (I acknowledge that under the majority's approach the
intentional aspects of a tortfeasor's conduct are of no moment to a victim.
Because I would adhere to Lindstrom, the [*580] trial court's findings in that
regard are still relevant to my analysis.)
Writing for the unanimous panel below, Judge Lintner correctly stated:
"Applying . . . principles [of appellate review], we are satisfied from
our review of the evidence that [the trial court's] finding, that plaintiff's
injuries were caused by intentional conduct when an uninsured hit-and-run
driver tried to run him down in order to effectuate his escape, is
unassailable." Shaw v. City of Jersey City, 346 N.J. Super. 219, 232-33,
787 A.2d 268 (App. Div. 2002). I would follow those basic tenets that require
us in these circumstances to accept the trial court's determination. See State
v. Locurto, 157 N.J. 463, 471, 724 A.2d 234 (1999) (observing that appellate
court cannot disturb lower court's finding that "could reasonably have
been reached on sufficient credible evidence present in the record")
(internal quotation marks and citation omitted).
The analogy to the Unsatisfied Claim and Judgment Fund (UCJF or
Fund) is imperfect and, in my view, unpersuasive. "Accident" under
the UCJF merely denotes a procedural term or timing mechanism, e.g., that a
claim under the Fund must be filed "within 90 days after the
accident." N.J.S.A. 39:6-65. The Fund's substantive provision does not
refer to "accident" at all, requiring only that the injury
"arises out of the ownership, maintenance or use of a motor
vehicle[.]" N.J.S.A. 39:6-78. In contrast, the UM statute requires as a
claim element that a claimant's injuries be "caused by accident[.]"
N.J.S.A. 17:28.1.1a. Those textual distinctions are critical. They evince a
legislative intent, more fully described in Lindstrom and by the Appellate
Division in this case, to exclude recovery for intentionally-inflicted injuries
in the UM context.
Although I agree with the majority that the Legislature designed
the UM endorsement to unburden the UCJF, I remain unconvinced that lawmakers
intended to provide the type of remedy sought here. Courts have declined to
read "accident" into the UCJF's substantive provision, instead
allowing recovery for [*581] intentional torts. Proskurnja v. Elder, 73 N.J. Super. 466, 476, 180 A.2d 200 (Law
Div. 1962) (refusing to impose Fund restrictions not expressly contained in
statute). Declining to draw a restrictive inference in the UCJF context,
however, is not the same as declining [**413] to enforce a plainly-written
limitation, such as the one evident in the UM statute. The differences in
language between the UM and Fund provisions are sufficient to warrant our
affirming the judgments below.
Without question, a police officer injured in the line of duty
is entitled to compensation and relief. In that regard, plaintiff received a
workers' compensation award arising from his injuries. See Allstate Ins. Co. v.
Malec, 104 N.J. 1, 13, 514 A.2d 832
(1986) (observing that when automobile insurance coverage is denied to
claimant, system often provides "other sources of recovery, such as . . .
workers' compensation benefits"). Absent a clearer statement by the
Legislature, I would not engraft onto the present system an ability to recover
under the UM statute when the underlying conduct unquestionably is intentional
in nature.
As an alternate basis for the Court's holding, the majority
cites the doctrine of reasonable expectations. Generally, that doctrine becomes
relevant when an insured's policy contains ambiguous language. See Zacarias v.
Allstate Ins. Co., 168 N.J. 590, 595, 775 A.2d 1262 (2001) (stating that courts
rely on expectations of insured "when there is ambiguity in an insurance
contract"). Briefly put, I would not invoke the doctrine because
"accident" is unambiguous when considered in the ordinary sense of
that term and through the prism of simple common sense. Ibid. (observing that
"in the first instance, the words of an insurance policy are to be given
their plain, ordinary meaning").
One way to resolve this dispute is to view the incident from
neither party's perspective, but rather, as suggested above, to consider
whether it was an "accident" within the commonly- understood meaning
of that term. The Supreme Court of Washington essentially adopted that approach
in Roller v. Stonewall, 115 Wn.2d 679, 801 P.2d 207 (1990). The court stated,
"[a] loss [*582]is accidental when it occurs without design, intent, or
obvious motivation." 801 P.2d at 210 (citation and quotation marks
omitted). It added: "Thus, the perspective of the insured as opposed to
the tortfeasor is not a relevant inquiry. Either an incident is an accident or
not." Ibid.
After today's holding declaring that a perpetrator's attempt to
run down a police officer constituted an "accident" under the UM law,
I have difficulty discerning any future fact pattern that would not be subject
to the same determination. This Court once warned, albeit within the context of
personal injury protection (PIP), "that section four [of the PIP statute],
however broad its protection for injuries substantially related to the use of
an automobile, is not designed to function as general crime insurance."
Lindstrom, supra, 138 N.J. at 253. I believe that the same is true of the UM
statute.
One final point. That New Jersey has struggled with the high
costs of automobile insurance is no secret. See, e.g., In re Am. Reliance Ins.
Co., 251 N.J. Super. 541, 545, 598 A.2d 1219 (App. Div. 1991) (tracing history
of this State's "intractable" insurance problems), certif. denied, 127
N.J. 556 (1992). Given that reality, I would exercise restraint before
overruling that portion of Lindstrom that has been on the books for nearly a
decade without objection from the Legislature. I adhere to a prior sentiment:
"The Legislature has spoken time and again on the issue of insurance
reform. Perhaps it is time for another look; if so, lawmakers, not judges must
drive any effort to revise the statute." Aponte-Correa v. Allstate Ins.
Co., 162 N.J. 318, 343, 744 A.2d 175 (2000) (Verniero, J., dissenting). [**414]
To summarize: In a noble effort to interpret the term
"accident" with all favorable inferences to the insured, the Court
effectively has written that term out of the UM statute. I would affirm the
dictum, carefully expressed in Lindstrom, supra, that UM coverage does not
apply "to injuries caused by an act that is an accident from the victim's
perspective but that is intended by the actor." 138 N.J. at 249. I would
not disturb [*583] the trial court's
finding, based on testimonial and documentary evidence, that from either
the tortfeasor's or victim's perspective, plaintiff did not sustain an injury
"caused by accident" for purposes of UM coverage. For the above
reasons, as well as for those expressed in Judge Lintner's meticulous and
persuasive opinion, I would affirm the Appellate Division's judgment in all
respects.