Lumpkins v. Market Transition Facility

661 A.2d 341, 283 N.J. Super. 181, 1995 N.J. Super. LEXIS 259
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 14, 1995
StatusPublished

This text of 661 A.2d 341 (Lumpkins v. Market Transition Facility) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lumpkins v. Market Transition Facility, 661 A.2d 341, 283 N.J. Super. 181, 1995 N.J. Super. LEXIS 259 (N.J. Ct. App. 1995).

Opinion

MENZA, J.S.C.

This is an order to show cause seeking PIP payments.

It presents the question of which vehicle is responsible for PIP benefits when there is a multiple vehicle accident.

Plaintiff, a pedestrian, was injured when he was struck by an automobile insured by Market Transition Facility (MTF) of New Jersey which in turn had been rear-ended by an automobile insured by General Accident Insurance Company (GAI or General Accident). Plaintiff now seeks PIP payments from both Market Transition Facility and General Accident Insurance Company. General Accident opposes, contending that it is not responsible for PIP payments because its insured’s automobile did not actually strike the pedestrian. It states that the PIP statute provides that only the automobile which actually strikes the pedestrian is responsible for PIP payments. General Accident concedes that it was responsible, at least in part, for the happening of the accident. This is a case of first impression in this state.

The statute, N.J.S.A. 39:6A-4, provides that PIP coverage is afforded to pedestrians injured by a qualifying automobile.

Every automobile liability insurance policy ... shall provide personal injury protection coverage ... to pedestrians sustaining bodily injury caused by the named insured’s automobile or struck by an object propelled by or from such automobile.

The statute is stated in the disjunctive — an insured automobile is responsible for PIP payments to a pedestrian if the automobile [183]*183either causes plaintiffs personal injuries or if it propels an object that strikes plaintiff causing injury. See Pine Belt Chevrolet, Inc. v. Jersey Cent. Power and Light Co., 132 N.J. 564, 578, 626 A.2d 434 (1993) (where the court stated that “the word “or” carries with it natural disjunctive import” which should not be disregarded absent contrary legislative intent).

This court will first address the meaning of the phrase “struck by an object propelled by or from the named insured’s vehicle.” Only one New Jersey case, in dicta, has addressed this question. In Rankin v. Ovalles, 262 N.J.Super. 463, 621 A.2d 97 (Law Div.1993) a court, deciding a question of whether a pedestrian was entitled to PIP payments where there was a question of coverage, concluded that an automobile is not an object propelled by or from such automobile” under the meaning of the PIP statute.

The plain language and common sense of the statute does not suggest that in an impact between an insured and uninsured vehicle, the uninsured vehicle should be treated as an object propelled by the insured vehicle.
[Id. at 466, 621 A.2d 97.]

No other case has addressed the precise issue of whether an automobile may be a propelled object.

However, cases in other jurisdictions with similar, although not exact statutes, have suggested that an automobile should be treated as an object which may be propelled by another vehicle. In the case of Southern Guar. Ins. Co. v. Berry, 560 F.Supp. 901 (N.D.Ga.1983), the court was asked to interpret a Georgia PIP statute which provided for payment of basic no-fault benefits where a pedestrian sustains “bodily injury ... as a result of being struck by the owner’s motor vehicle.” In that case the insurer of a parked vehicle brought a declaratory judgment action to determine whether it owed PIP benefits to pedestrians who were injured when the parked vehicle was propelled into the pedestrians by a second insured automobile. The insurer for the moving vehicle moved for summary judgment contending that it was not liable since its vehicle did not physically strike the pedestrians. The federal district court of Georgia held that both the insurer of the moving vehicle and the parked vehicle must pay PIP benefits [184]*184since both vehicles caused the accident. In liberally interpreting the phrase “struck by an automobile,” the court noted that “the majority rule appears to be that one can be ‘struck by’ an automobile without actually coming in contact with the automobile itself.” Id. at 903. The court also noted that:

In ordinary parlance, the word struck is frequently used to denote a movement or a force causing or resulting in a physical impact. The striking force can be either the force which most immediately comes in contact with -the object struck, or it can be the force setting in motion a chain of events leading up to the striking of an object.
[Ibid.]

And in Collins v. International Indem. Co., 256 Ga. 493, 349 S.E.2d 697 (1986), the Georgia Supreme Court interpreting the phrase “struck by the owners motor vehicle” stated “where one vehicle is propelled by another vehicle into a third vehicle or pedestrian, both the propelling vehicle and the propelled vehicle have ‘struck’ the third vehicle or pedestrian.”

Similarly, in Royal Indem. Co. v. Government Employees Ins. Co., 307 So.2d 458 (Fla.App.1975), the insurer of a parked vehicle brought a claim against the insurer of a moving vehicle to recover PIP payments it had made to an injured pedestrian. The Florida PIP statute (Fla.Stat. Sec. 627.736(4)), provides that an insurer shall provide PIP benefits “if the injury is caused by physical contact with such motor vehicle.” Id. at 460. Despite the fact that the propelling vehicle never came into physical contact with the pedestrian, the court broadly interpreted its PIP statute and allowed recovery. The court reasoned that the moving vehicle was the proximate cause of the accident and analogized it to:

numerous . . cases where a moving auto has struck an inanimate object causing it to be propelled into a person, injuring him or her, [and] it has been held by the weight of authority, that physical contact has been made with the insured____
[Ibid, (emphasis added).]

And in Johnson v. National Union Fire Ins. Co., 177 Ga.App. 204, 338 S.E.2d 687 (1985), the Georgia Court of Appeals held that one can be “struck by” an automobile without actually coming into physical contact with the automobile itself.

[185]*185In all of these cases the courts have liberally construed their PIP statutes and have allowed recovery against both vehicles, although there was no actual contact between the pedestrian and one of the vehicles.

The New Jersey courts also have given a broad interpretation to the PIP statute. In Newcomb Hospital v. Fountain, 141 N.J.Super. 291, 357 A.2d 836 (Law Div.1976), the court, after first stating that the “statute must be interpreted in a context which serves the spirit of the law,” held that a plaintiff who was injured from water which exploded from the radiator of a nearby automobile was entitled to PIP benefits. The court reasoned that the plaintiff was hurt by objects “propelled” from the automobile.

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Related

Collins v. International Indemnity Co.
349 S.E.2d 697 (Supreme Court of Georgia, 1986)
Johnson v. National Union Fire Insurance
338 S.E.2d 687 (Court of Appeals of Georgia, 1985)
Pine Belt Chevrolet, Inc. v. Jersey Central Power & Light Co.
626 A.2d 434 (Supreme Court of New Jersey, 1993)
Southern Guaranty Insurance v. Berry
560 F. Supp. 901 (N.D. Georgia, 1983)
Darel v. Pennsylvania Mfrs. Ass'n Ins. Co.
555 A.2d 570 (Supreme Court of New Jersey, 1989)
Royal Indemnity Co. v. GOVT. EMP. INS. CO.
307 So. 2d 458 (District Court of Appeal of Florida, 1975)
Purdy v. Nationwide Mut. Ins. Co.
445 A.2d 424 (New Jersey Superior Court App Division, 1982)
Lindstrom v. Hanover Insurance
649 A.2d 1272 (Supreme Court of New Jersey, 1994)
Newcomb Hospital v. Fountain
357 A.2d 836 (New Jersey Superior Court App Division, 1976)
Hopkins v. Liberty Mutual Insurance Company
383 A.2d 458 (New Jersey Superior Court App Division, 1978)
Rankin v. Ovalles
621 A.2d 97 (New Jersey Superior Court App Division, 1993)

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Bluebook (online)
661 A.2d 341, 283 N.J. Super. 181, 1995 N.J. Super. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lumpkins-v-market-transition-facility-njsuperctappdiv-1995.