SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
CONSTANZA ZAMBRANA, AS
ADMINISTRATRIX OF THE
ESTATE OF SANTOS SOLANO,
AND INDIVIDUALLY,
Plaintiff-Appellant,
v.
NATIONAL CONTINENTAL/
PROGRESSIVE INSURANCE COMPANY,
Defendant-Respondent.
May 26, 2011
Argued December 8, 2010 - Decided
Before Judges Gilroy, Ashrafi and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5919-09.
Evelyn Padin argued the cause for appellant.
John F. Gaffney argued the cause for respondent (Hueston, McNulty, P.C., attorneys; Mr. Gaffney, on the brief).
PER CURIAM
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.1We 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 of an accident which arose out of the ownership, maintenance or use of an automobile." We disagree.
III.
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill, supra, 142 N.J. at 523. "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).
On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler & Verniero, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2011). We employ the same standard that governs trial courts in reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).
N.J.S.A. 17:28-1.1 governs statutorily-mandated UM coverage benefits. The statute provides in pertinent part:
no motor vehicle liability policy or renewal . . . insuring against loss resulting from liability imposed by law for bodily injury or death, sustained by any person arising out of the ownership, maintenance or use of a motor vehicle, shall be issued in this State with respect to any motor vehicle registered or principally garaged in this State unless it includes coverage in limits for bodily injury or death as follows:
. . . .
(2) an amount or limit . . . for payment of all or part of the sums which the insured or his legal representative shall be legally entitled to recover as damages from the operator or owner of an uninsured motor vehicle, or hit and run motor vehicle . . . because of bodily injury, sickness or disease, including death resulting therefrom, sustained by the insured, caused by accident and arising out of the ownership, maintenance, operation or use of such uninsured or hit and run motor vehicle anywhere within the United States or Canada.
[N.J.S.A. 17:28-1.1a(2) (emphasis added).]
Courts apply a two-prong test in determining whether an insured is entitled to UM benefits: "first, the insured must demonstrate that his or her injuries were caused by an 'accident[';] and, second, the insured must prove that the accident arose from the ownership, maintenance, operation or use of an uninsured vehicle." Livsey, supra, 197 N.J. at 531. We conclude that the trial court correctly appliedLivsey's two-prong test and denied UM coverage.
In Livsey, the plaintiff was returning to her car after grocery shopping, when she was shot. Id. at 525-26. Witnesses saw a car flee the scene, but it was never established who fired the shot or whether the occupants of the fleeing car were involved. Id. at 526. Plaintiff sought UM motorist coverage from her automobile insurance carrier, but the claim was denied. The trial court granted the insurer's motion for summary judgment; and we reversed. Id. at 527.
On certification granted, the Supreme Court framed the issue as whether "UM coverage extends to injuries suffered as a result of a drive-by shooting." Id. at 530. In analyzing the issue, the Court applied the aforestated two-prong test. With respect to the first prong, the Court held that "there can be little doubt that plaintiff's injury--being struck by a bullet from a drive-by shooting--qualifies as an 'accident' under the UM statute." Id. at 532. However, the Court determined that the plaintiff failed to establish the second prong, that is, that "there was a sufficient nexus between the accident and the ownership, maintenance, operation or use of an uninsured vehicle." Ibid. Indeed, the Court held that the nexus between the accident and the ownership maintenance, operation or use of the uninsured vehicle must be "substantial" for the insurer to be obligated to provide UM coverage. Id. at 533; accord Vasil v. Zullo, 238 N.J. Super. 572, 578 (App. Div. 1990); Cerullo v. Allstate Ins. Co.,236 N.J. Super. 372, 377 (App. Div. 1989); Sciascia v. Am. Ins. Co., 183 N.J. Super. 352, 359 (Law Div. 1982), aff’d o.b., 189 N.J. Super. 236(App. Div. 1983).
In Vasil, the plaintiff's husband, Daniel Vasil, was a passenger in a car operated by Carmen Zullo. 238 N.J. Super. at 574. There was an incident of road rage involving a second automobile. Id. at 574-75. Vasil stepped out of Zullo's vehicle to confront the driver of the other vehicle. A few moments later, Vasil returned to Zullo's automobile and subsequently died from a stab wound, purportedly inflicted by an occupant of the other car. Id. at 575. The police were unable to locate the other vehicle or its occupants. Ibid. In upholding the dismissal of plaintiff's claim for UM benefits, we cited Cerullo and Sciascia for the proposition that "an intentional assault committed by an occupant of an uninsured or hit and run vehicle does not 'arise out of the ownership, maintenance or use' of the vehicle." Id. at 578 (quoting N.J.S.A. 17:28-1.1a.).
In Cerullo, the plaintiff, while operating his automobile, "cut off" a second vehicle. 236 N.J. Super. at 373-74. When the plaintiff's automobile was stopped, a passenger from the other vehicle approached the plaintiff's automobile and punched him through an open window.Ibid. The plaintiff brought suit against his insurer, seeking UM benefits. Id. at 374. We reversed the trial court's grant of summary judgment to plaintiff. Id. at 378. In reaching this conclusion, we examined the policy behind UM benefits and reasoned that
if UM coverage applies to injuries sustained through an intentional criminal attack effected through an instrumentality (in this case a fist) other than an automobile, then UM coverage, conceived as a first party substitute for third party liability coverage, would provide substantially greater coverage than the third party coverage it replaces.
[Id. at 377.]
Simply stated, we found "no legislative intent to establish UM coverage as a form of general crime insurance based on an indirect nexus between an automobile and the criminal act." Id. at 378.
In Sciascia, plaintiff's deceased was shot and killed by a passenger in an uninsured motor vehicle as the decedent stood outside his automobile. 183 N.J. Super. at 353-54. The administrator of the decedent's estate instituted suit against the decedent's insurer, seeking payment of UM benefits. Id. at 354. The trial court granted summary judgment to the insurer reasoning in pertinent part that "[t]he deliberate firing of a shotgun by [a] passenger . . . from a moving [uninsured] vehicle . . . cannot be considered to have arisen out of the use of [the] vehicle. There was no substantial connection between the insured's death and the use of the uninsured automobile." Id. at 358-59.
Plaintiff argues that the trial court erred in granting summary judgment because this case is distinguishable from Livsey. Plaintiff contends that Solano was operating his vehicle when he was shot; whereas, the plaintiff in Livsey was not inside her vehicle when shot. We reject the argument.
Plaintiff is focusing on the wrong vehicle. The statutory language of N.J.S.A. 17:28-1.1a(2) provides that UM benefits apply only when the insured's injury is "caused by accident and arising out of the ownership, maintenance, operation or use of such uninsured or hit and run motor vehicle." (emphasis added). Therefore, whether Solano was inside his vehicle at the time of the shooting is not dispositive.
Plaintiff also asserts there is evidence to suggest that a collision had occurred between Solano's motor vehicle and the uninsured automobile. Even assuming this to be the case as we must on a motion for summary judgment, we disagree that this factor, without more, is sufficient to withstand summary judgment. There is no evidence suggesting that Solano's death was caused by a car accident. Rather, as noted by the trial court, the undisputed evidence in the form of Solano's death certificate shows that he died from gunshot wounds. Because Livseyestablishes that a drive-by shooting does not "arise out of the ownership, maintenance, operation or use of an uninsured vehicle," and because the only evidence is that Solano died from a gunshot wound, we conclude that summary judgment was correctly granted.
Affirmed.1 Plaintiff's notice of appeal (NOA) indicates that she appeals from the April 22, 2010 order only. Rule 2:5-1(f) is generally read to provide that "only the judgments or orders or parts thereof designated in the [NOA] are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2011). An exception, however, is where the civil case information statement (CIS) places the adversary on notice of the intended scope of appeal. If the appellant appeals from an order not referenced in the NOA, the appeal from that order will be deemed appropriate provided appellant indicated his or her intent in the CIS to appeal from that order. SeeAhammed v. Logandro, 394 N.J. Super. 179, 187-88 (App. Div. 2007). Plaintiff's appeal falls within the exception.
