(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
KURT LINDSTROM, ET AL. V. THE HANOVER INSURANCE COMPANY, ETC. (A-30-94)
Argued September 13, 1994 -- Decided December 19, 1994
CLIFFORD, J., writing for a majority of the Court.
Kurt Lindstrom was rendered a quadriplegic as a result of a gun shot wound inflicted in a drive-by
shooting. George Lindstrom, Kurt's father and guardian, seeks recovery of personal-injury-protection (PIP)
benefits under his automobile insurance policy issued by The Hanover Insurance Company (Hanover).
The parties' filed cross-motions for summary judgment on the issue of PIP coverage. In determining
coverage, the trial court interpreted N.J.S.A. 39:6A-4 (section 4) of the New Jersey Reparation Reform Act
(Act) and concluded that the nexus between the injury and the automobile was not substantial enough to
bring the loss within PIP coverage. Therefore, the court entered summary judgment in favor of Hanover.
On appeal, the Appellate Division affirmed the decision of the trial court, concluding that the fact
that Kurt was injured by a bullet that had been propelled from a gun and not from the car itself attenuated
the connection between the automobile and the injury. The panel also ruled that the parties to the insurance
contract did not contemplate that the deliberate shooting of a pedestrian would be within the policy
coverage.
The Supreme Court granted George Lindstrom's petition for certification.
HELD: The random drive-by shooting that caused Kurt Lindstrom's gun shot injuries was clearly an
"accident" within the contemplation of N.J.S.A. 39:6A-4 of the New Jersey Reparation Reform
Act. Therefore, Kurt Lindstrom is entitled to PIP benefits under his father's insurance policy.
1. The language of section 4 limits PIP coverage to members of the insured's household who sustain
bodily injury as a pedestrian that is caused by an automobile or by an object propelled by or from an
automobile. Thus, coverage occurs only if an automobile is involved in the happening of the accident. The
Court has previously applied the substantial-nexus test in the PIP-coverage context and continues to do so
here. (pp. 4-5)
2. The Act must be liberally construed to achieve its purposes. PIP coverage is given the broadest
application consistent with the statutory language and the public policy favoring coverage. Insureds are
entitled to coverage in accordance with their objectively-reasonable expectations that are supported by any
fair interpretation of the law. (pp. 6-8)
3. Whether an event constitutes an accident must be determined from the perspective of the victim.
Therefore, an accident may for PIP purposes include the results of an intentionally-inflicted injury. (pp. 8-9)
4. In determining whether the facts reveal a substantial nexus between the accident and the use of an
automobile, the inquiry should be whether the negligent act that caused the injury, although not foreseen or
expected, was in the contemplation of the parties to the insurance contract, was a natural or reasonable
incident or consequence of the use of the automobile and, thus, was a risk against which they might
reasonably expect those insured under the policy might be protected. Thus, the act causing the injury does
not have to be actually foreseen but it must be both a reasonable consequence of the use of an automobile
and one against which the parties would expect protection. (pp. 9-12)
5. The random shooting that caused Kurt's gun shot injuries was an accident within the contemplation
of section 4. From Kurt's perspective, the shooting was unintentional. The automobile enabled the assailant
to carry out the crime anonymously and escape. Moreover, Kurt's injury was foreseeable; drive-by shootings
have become increasingly more common and can no longer be considered unforeseeable. (pp. 12-13)
6. This holding is limited to random drive-by shootings. The Court does not rule on cases that present
circumstances that intervene between the use of the vehicle and the shooting. (pp.13-14
Judgment of the Appellate Division is REVERSED.
JUSTICE POLLOCK, dissenting, in which JUSTICES O'HERN and GARIBALDI join, is of the
view that, in light of the fact the fact that Kurt Lindstrom's injuries were caused by a bullet from a gun, the
relationship between those injuries and the assailant's automobile is so attenuated that it fails the substantial-nexus test. Furthermore, the Legislature did not intend that PIP benefits extend to drive-by shootings.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER and STEIN join in JUSTICE
CLIFFORD's opinion. JUSTICE POLLOCK filed a separate dissenting opinion in which JUSTICES
O'HERN and GARIBALDI join.
SUPREME COURT OF NEW JERSEY
A-
30 September Term 1994
KURT LINDSTROM, by his Guardian ad
Litem, GEORGE K. LINDSTROM, and
GEORGE K. LINDSTROM, Individually,
Plaintiffs-Appellants,
v.
THE HANOVER INSURANCE COMPANY on
behalf of the NEW JERSEY AUTOMOBILE
FULL INSURANCE UNDERWRITING
ASSOCIATION,
Defendant-Respondent.
Argued September 13, 1994 -- Decided December 19, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
269 N.J. Super. 339 (1993).
Patricia D. Connelly argued the cause
for appellant (Shebell & Schibell,
attorneys; Peter Shebell, Jr., of
counsel).
Mark S. Hochman argued the cause for
respondent (Gertler & Hanna, attorneys).
The opinion of the Court was delivered by
CLIFFORD, J.
Plaintiff Kurt Lindstrom sustained grave injuries resulting from a gunshot wound inflicted in a drive-by shooting. He seeks recovery of personal-injury-protection (PIP) benefits under his father's automobile insurance policy, issued by defendant. The trial court concluded that the nexus between the injury and the automobile was not substantial enough to bring the loss within PIP coverage, and therefore it entered summary judgment in favor
of the defendant-insurer. The Appellate Division affirmed,
269 N.J. Super. 339 (1993). We granted certification,
136 N.J. 31
(1994), and now reverse.
The facts are undisputed. Plaintiff Kurt Lindstrom was a
student at the University of North Carolina-Wilmington. He was
attending an outdoor party at the University on April 15, 1989,
when an occupant of a passing car fired a shot into the crowd.
The bullet struck Kurt behind his right ear and pierced his
spinal column, rendering him a quadriplegic. The authorities
apprehended and successfully prosecuted the assailant.
As a member of his father's household in Eatontown, Kurt was
covered by the automobile insurance policy issued by defendant,
Hanover Insurance Company, to the father, plaintiff George K.
Lindstrom. (Inasmuch as his son is totally disabled, George sues
as Kurt's guardian ad litem as well as in his individual
capacity. Because the interests of father and son are identical,
we refer hereafter to "plaintiff" in the singular.)
At the time of the occurrence the statute that defines
eligibility for PIP benefits mandated
the payment of benefits without regard to
negligence, liability or fault of any kind,
to the named insured and members of his family residing in his
household who sustained bodily injury as a result of an accident
* * * as a pedestrian, caused by an automobile or by an object
propelled by or from an automobile.
[L. 1988, c. 119, § 3 (codified at
N.J.S.A. 39:6A-4).]
Plaintiff demanded payment under the policy for Kurt's medical
expenses and "essential services." When defendant refused
payment, plaintiff instituted this suit to obtain PIP benefits.
On the parties' cross-motions for summary judgment the trial
court ruled that some connection must exist between the insured
and "the manner by which the injury[-]producing event occurs."
Because it found no "operative automobile[-]like activity to
justify application of the coverage," the court entered summary
judgment for defendant.
Plaintiff appealed. In determining whether Kurt's injuries were within the contemplation of N.J.S.A. 39:6A-4 ("section four"), the Appellate Division reviewed cases concerning the applicability of PIP coverage to intentional criminal acts. See 269 N.J. Super. at 341-43. The underlying theme in those cases is the requirement of a legal relationship between the automobile and the plaintiff's injury such that the automobile was a cause of that injury and not merely an "attending circumstance." The Appellate Division in this case concluded that the fact that plaintiff was injured by a bullet that had been propelled from a gun and not from the car itself "attenuate[d] the connection between the automobile and the injury." Id. at 344. The court
further ruled that the parties to the insurance contract did not
contemplate that a deliberate shooting of a pedestrian would be
within the policy coverage. Because the Appellate Division did
not find the requisite "substantial nexus between the automobile
and the criminal act," ibid., it affirmed the judgment of the
trial court.
Plaintiff argues that because the bullet that caused the
injury was propelled from an automobile, the incident is within
the scope of section four. He asserts that the Appellate
Division's denial of coverage based on the criminal activity
underlying the injury incorrectly focused on the actor's intent.
Under a PIP claim, according to plaintiff, the only relevant
question is whether the bullet was propelled from an automobile
within the meaning of section four. Plaintiff asks that we not
apply the "substantial nexus" test to his case. He argues in the
alternative that if the substantial-nexus test does apply, the
facts meet that test because the car was "inextricably linked to
the crime."
Plaintiff's argument that the substantial-nexus test does not apply to family-member pedestrians need not long detain us. The language of section four is unmistakable in its limitation of PIP coverage to members of the insured's household who "sustained bodily injury * * * as a pedestrian, caused by an automobile or by an object propelled by or from an automobile." In light of
the statutory requirement of causation, we have previously
applied the substantial-nexus test in the PIP-coverage context,
see Smaul v. Irvington General Hospital,
108 N.J. 474, 477-78
(1987), and continue to do so in this family-member pedestrian
case.
In resisting plaintiff's claim, defendant relies on
Westchester Fire Insurance Co. v. Continental Insurance Co.,
126 N.J. Super. 29 (App. Div. 1973), aff'd o.b.,
65 N.J. 152 (1974).
There the court held that an injury sustained by a victim struck
by a board thrown from a moving automobile came within the scope
of the automobile-liability-policy provision "arising out of the
ownership, maintenance or use" of the automobile and that the
automobile carrier was obligated to defend the suit alleging such
bodily injury. 126 N.J. Super. at 35, 38. In reaching that
conclusion the Appellate Division expressed doubt about, without
however deciding, the proposition that a causal connection could
be found "between the discharge of guns or other explosive
devices and their happenstance location in the car." Id. at 40.
On the strength of that intimation, defendant asserts that we
should reject plaintiff's claim. Moreover, defendant argues, the
use of the automobile in this drive-by shooting was irrelevant to
plaintiff's injury. According to defendant, because no
substantial nexus exists and because no New Jersey case has
awarded PIP benefits to victims of shootings, this Court should
affirm the judgment below.
We begin by setting out the basic principles that guide our deliberation. New Jersey's no-fault compulsory automobile insurance scheme, found in the New Jersey Automobile Reparation Reform Act, N.J.S.A. 29:6A-1 to -35 (the Act), must be "liberally construed so as to effect the purpose thereof." N.J.S.A. 39:6A-16. This Court has characterized PIP coverage as "'a social necessity' that should be given 'the broadest application consistent with the statutory language.'" Darel v. Pennsylvania Mfrs. Ass'n Ins. Co., 114 N.J. 416, 425 (1989) (quoting Amiano v. Ohio Casualty Ins. Co., 85 N.J. 85, 90 (1981)); accord Fisher v. Hanover Ins. Co., 224 N.J. Super. 552, 557 (App. Div. 1988); Vicari v. Nationwide Ins., 174 N.J. Super. 463, 468 (App. Div. 1980), certif. denied, 85 N.J. 464 (1991); New Jersey Mfrs. Ins. Co. v. Griffin, 253 N.J. Super. 173, 178 (Law Div. 1991). Such a broad application represents public policy favoring coverage. See Allstate Ins. Co. v. Malec, 104 N.J. 1, 6 (1986); JFK Memorial Hosp. v. Kendal, 205 N.J. Super. 456, 458 (Law Div. 1985). Insureds are entitled to coverage in accordance with their objectively-reasonable expectations that are supported by any fair interpretation of the law. See Werner Indus. v. First State Ins. Co., 112 N.J. 30, 35 (1988); Westchester Fire, supra, 126 N.J. Super. at 36; see also SL Indus. v. American Motorists Ins. Co., 128 N.J. 188, 205 (1992) (discussing insured's objectively-reasonable expectations). In respect of the occurrence, the Legislature sought to ensure "the broadest coverage possible so long as an automobile was involved in that
which happened." Pennsylvania Nat'l Mut. Casualty Ins. Co. v.
Estate of Miller,
185 N.J. Super. 183, 187 (App. Div. 1982).
Accordingly, "where the Legislature has 'made a choice of
language [that] fairly brings a given situation within a statute,
it is unimportant that the particular application may not have
been contemplated by the legislators.'" Sheeran v. Nationwide
Mut. Ins. Co.,
80 N.J. 548, 556 (1979) (quoting Sears, Roebuck &
Co. v. United States,
504 F.2d 1400, 1402 (C.C.P.A. 1974));
accord Griffin, supra, 253 N.J. Super. at 177.
Section four originally protected against "injury as the result of an automobile accident." L. 1972, c. 70, § 4. In 1972 the Legislature broadened the scope of the statute to cover "injury as the result of an accident involving an automobile." L. 1972, c. 203, § 3. The amended version was designed to provide the "broadest possible coverage so long as an automobile was involved." Pennsylvania Nat'l, supra, 185 N.J. Super. at 187. In 1983, however, the Legislature tightened the requirements for family-member pedestrians, limiting coverage to instances in which the pedestrian was "struck by an automobile." L. 1983, c. 362, § 7. In 1984, the Legislature again amended the wording, requiring that the family-member pedestrian be "struck by an automobile or by an object propelled by or from an automobile." L. 1984, c. 40, § 3. The 1984 amendment tightened PIP-eligibility requirements generally, Vasil v. Zullo, 238 N.J. Super. 572, 576 (App. Div. 1990), but broadened coverage for family-member pedestrians. Moreover, section four continued to provide the broadest protection consistent with its language.
Fisher, supra, 224 N.J. Super. at 557. The 1988 amendment again
broadened family-member pedestrian coverage to include injuries
"caused by an automobile or by an object propelled by or from an
automobile," L. 1988, c. 119, § 3, eliminating the requirement
that the vehicle literally strike the insured. Cf. Ingraham v.
Travellers Cos.,
217 N.J. Super. 126 (App. Div. 1987), aff'd
o.b.,
110 N.J. 67 (1988) (denying PIP coverage under 1983 law to
family-member pedestrian who was run off road by automobile and
who lost foot in resulting fall, because no actual contact
occurred between car and insured).
After the restrictive language of the 1983 amendment, the
trend in the development of section four has been to broaden
family-member pedestrian coverage somewhat. Although to trigger
PIP coverage the automobile must provide more than merely the
setting for the accident, no amendment has changed the
requirement that the Act be liberally construed to give the
broadest application consistent with its language. The guiding
principle remains intact: to accommodate the public interest
behind the Act, courts must favor the insured and find coverage
if possible.
Illustrative of the application of that guiding principle is the broad meaning that courts have ascribed to the term "accident" as used in section four. In Pennsylvania National, supra, the Appellate Division ruled that under PIP claims, "whether an event constitutes an 'accident' must be determined from the perspective of the victim," 185 N.J. Super. at 188, and
therefore "accident" may, for PIP purposes, include the results
of intentionally-inflicted injury. Id. at 187. In that respect
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. As the court
explained in Cerullo v. Allstate Insurance Co.,
236 N.J. Super. 372 (App. Div. 1989), the differences between PIP and uninsured-motorist coverages are traceable to the significantly different
needs that each coverage satisfies. See id. at 375-77. (To the
extent that Sciascia v. American Insurance Co.,
183 N.J. Super. 352 (Law Div. 1982), aff'd o.b.,
189 N.J. Super. 236 (App. Div.
1983), on which defendant relies, rests on the notion that for
uninsured-motorist-coverage questions courts must determine the
issue of whether an accident occurred from the perspective of the
covered victim rather than from that of the uninsured tortfeasor,
that case is no longer respectable authority.)
In determining whether the facts reveal a substantial nexus
between the accident and the use of an automobile, we apply the
test developed in the liability-coverage context in Westchester
Fire, supra,
126 N.J. Super. 29, which held that the
inquiry should be whether the negligent act which caused the injury, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile, and thus a risk against which they might
reasonably expect those insured under the
policy would be protected.
See generally Cynthia M. Craig & Daniel J. Pomeroy, New Jersey
Auto Insurance Law § 6.2-3b (1995) (discussing nexus
requirement). (As we have pointed out, unlike liability
coverage, PIP protection extends to intentional acts. Therefore,
when applying the substantial-nexus test to PIP coverage, courts
do not require that the injury-producing act have been one of
negligence.) The act causing the injury need not be actually
foreseen but it must be both a reasonable consequence of the use
of an automobile and one against which the parties would expect
protection. Smaul, supra, 108 N.J. at 478 (finding assault not
uncommon and therefore foreseeable); Kordell v. Allstate Ins.
Co.,
230 N.J. Super. 505, 509 (App.Div.) (finding no coverage
where insured died of "natural processes unrelated to [his]
presence in [his] automobile"), certif. denied,
117 N.J. 43
(1989); Foss v. Estate of Cignarella,
196 N.J. Super. 378, 382
(Law Div. 1984) (finding no coverage where liability carrier's
insured left his vehicle and stabbed plaintiff).
Courts favor insureds' expectations by affording coverage when any fair interpretation will allow. See Westchester, supra, 126 N.J. Super. at 36, 39. "Objectively reasonable" expectations "may govern even in the absence of ambiguity, in recognition of the generally one-sided nature of insurance contracts." Clegg v. Cigna Ins. Co., 254 N.J. Super. 634, 639 (App. Div. 1992) (applying underinsured-motorist coverage to named insured before
prorating benefits to passenger to effect named insured's
objectively-reasonable expectations concerning first-party
coverage). The test does not require direct or proximate cause.
Smaul, supra, 108 N.J. at 477. Thus, an assault that results
from an insured asking for directions while remaining in the car,
under circumstances in which the assailants intended to steal the
car, created a "direct involvement" between the assault and the
use of the car that satisfied the test. Id. at 478.
Accidents that do not arise out of the use of an automobile or are not of the type that are within the contemplation of the parties do not fulfill the test's requirements. For example, the Appellate Division has ruled that in a case in which a decedent voluntarily alighted from the insured car and was fatally stabbed, the stabbing did not occur while decedent was "'occupying, entering into, alighting from or using an automobile,'" and thus it denied PIP benefits. Vasil, supra, 238 N.J. Super. at 577 (quoting section four). The court held that "a verbal or physical confrontation with the occupants of another vehicle is not part of the normal use of an automobile." Ibid. Similarly, the Appellate Division has ruled that the fact that a victim of a fatal shooting was sitting in her car at the time of the killing did not by itself provide a nexus sufficient to support PIP coverage. Morgan v. Prudential Ins. Co., 242 N.J. Super. 638, 642 (App. Div.), certif. denied, 122 N.J. 370 (1990). The intention of thieves to steal decedent's car when they shot him while he used a public telephone also failed to create the
necessary connection. Uzcatequi-Gaymon v. New Jersey Mfrs. Ins.
Co.,
193 N.J. Super. 71, 73 (App. Div. 1984).
Applying the foregoing principles to the facts before us, we
are satisfied that the random shooting that caused Kurt's gunshot
injuries was clearly an "accident" within the contemplation of
section four. From plaintiff's perspective, the shooting was
unintentional. See discussion supra at ___ (slip op. at 9).
Although defendant acknowledges in its Appellate Division
brief that "[i]t is true, as argued by plaintiff, that Mr.
Lindstrom was [wounded] 'by an object propelled from an
automobile,' which tracks the statutory language," that language
may not provide a complete answer to the contention that the shot
can be perceived as having been propelled from a shotgun rather
than from the car. According to the Appellate Division, "The
gunman could just as well have been on foot, or on a motorcycle
or a bicycle." 269 N.J. Super. at 344. That circumstance,
according to the court below, "attenuates the connection between
the automobile and the injury." Ibid.
We disagree. In our view the automobile did more than provide a setting or an enhanced opportunity for the assault. In addition to allowing the assailant to be at the place of attack, it furnished the assailant with what he must have assumed would be both anonymity and a means of escape. The assailant would not
likely have committed such an act of apparently random violence
without the use of a car.
In respect of the "foreseeability" question, we ruled in
Smaul, supra, that assaults on drivers related to the use of
automobiles were foreseeable and that the vehicle was "central"
to the assault. 108 N.J. at 478. We are satisfied that Smaul
controls on that issue: Kurt's injury was foreseeable. This
case is thus distinguishable from Vasil, supra,
238 N.J. Super. 572, in which the assault occurred after the decedent had left
his car for a purpose not related to "the forward progress of the
vehicle." Vicari, supra, 174 N.J. Super. at 468 (finding PIP
coverage for death of insured during attempt to clear accident
blocking road).
Perhaps more to the point, however, is the depressing
reality that in recent years, unlike 1973 when Westchester Fire
was decided, drive-by shootings have become an increasingly-common part of the American experience. Regrettably, a court can
no longer say with any certainty that such occurrences are so
removed from the American scene as not to be foreseeable.
Finally, we limit today's holding to random, drive-by shootings. We do not purport to rule on cases that present circumstances that intervene between the use of the vehicle and the shooting. As in Smaul, supra, "we see no reason rooted in either public policy or statutory interpretation why the fact that a criminal act was involved in the accident should deprive
this plaintiff of PIP benefits," 108 N.J. at 478-79; but we
recognize as well that section four, however broad its protection
for injuries substantially related to the use of an automobile,
was not designed to function as general crime insurance.
Judgment reversed.
Chief Justice Wilentz and Justices Handler and Stein join in
this opinion. Justice Pollock has filed a separate dissenting
opinion in which Justices O'Hern and Garibaldi join.
SUPREME COURT OF NEW JERSEY
A-
30 September Term 1994
KURT LINDSTROM, by his Guardian ad
Litem, GEORGE K. LINDSTROM, and
GEORGE K. LINDSTROM, Individually,
Plaintiffs-Appellants,
v.
THE HANOVER INSURANCE COMPANY on
behalf of the NEW JERSEY AUTOMOBILE
FULL INSURANCE UNDERWRITING
ASSOCIATION,
Defendant-Respondent.
POLLOCK, J., dissenting.
If courts could extend personal-injury-protection (PIP)
benefits without regard to the intent of the Legislature, I might
join the majority opinion. Likewise, I would be tempted to join
the majority if courts were free to shift the risk of loss from a
gravely injured plaintiff to an insurer and its policyholders.
Believing that it enjoys that freedom, the majority extends PIP
benefits to victims of random, drive-by shootings,
notwithstanding its acknowledgment that N.J.S.A. 39:6-4 "was not
designed to function as general crime insurance." Ante at ___
(slip op. at 14). I respectfully dissent.
My disagreement with the majority arises from its conclusion
that because the bullet that injured plaintiff was "an object
. . . propelled . . . from an automobile," L. 1988, c. 119, § 3
(codified at N.J.S.A. 39:6A-4), plaintiff's medical expenses are
covered PIP benefits. Only by ignoring the inescapable fact that
the bullet was propelled from a gun can the majority sustain its
conclusion. Presumably, the majority believes that the shooting
occurred while the assailant was sitting inside an automobile.
Would the majority reach the same result if the assailant had
fired the gun while holding it outside the automobile? If he had
temporarily stepped outside the automobile, leaned the gun
against it, and fired? Or if he had shot while momentarily
outside the vehicle? If so, how long need the assailant be
outside the automobile before an injured party may be denied PIP
benefits from his or her own insurer? From my perspective, the
Legislature never intended PIP benefits to extend to any of those
situations or, more importantly, to the present case.
As the majority acknowledges, the Legislature intended to
provide PIP benefits for injuries either caused by an automobile
or that were "a reasonable consequence of the use of an
automobile and one against which the parties would expect
protection." Ante at ___ (slip op. at 10). I doubt that the
Legislature ever intended for injured parties to recover PIP
benefits when the automobile was merely an attending
circumstance. Nor do I believe that reasonably objective
insureds believe that their PIP benefits cover random, drive-by
shootings.
The majority, however, believes that it can fit such
shootings by strangers into the statutory language. Relying on
Sheeran v. Nationwide Mutual Insurance Co.,
80 N.J. 548, 556
(1979) (quoting Sears, Roebuck & Co. v. United States,
504 F.2d 1400, 1402 (C.C.P.A. 1974)), it argues that "where the
Legislature has 'made a choice of language [that] fairly brings a
given situation within a statute, it is unimportant that the
particular application may not have been contemplated by the
legislators.'" Ante at__ (slip op. at 7). For the majority, the
words of the statute are both the means and the end of statutory
interpretation. To this extent, the majority permits statutory
language to trump legislative purpose.
Judge Learned Hand, however, once warned: "There is no
surer way to misread any document than to read it literally
. . . ." Guiseppi v. Walling,
144 F.2d 608, 624 (2d Cir. 1944)
(Hand, J., concurring), aff'd sub. nom. Gemsco, Inc. v. Walling,
324 U .S. 244,
65 S. Ct. 605,
89 L. Ed. 921 (1945). He realized
that the art of statutory interpretation is "the art of
proliferating a purpose." Brooklyn Natural Corp. v. Commissioner
of Internal Revenue,
157 F.2d 450, 451 (2d Cir.), cert. denied,
329 U.S. 733,
67 S. Ct. 96,
91 L. Ed. 634 (1946).
Similarly, United States Supreme Court Justice Felix Frankfurter realized that "[s]tatutes . . . are not inert exercises in literary composition. They are instruments of government, and in construing them 'the general purpose is a more
important aid to the meaning than any rule which grammar or
formal logic may lay down.'" United States v. Shirey,
359 U.S. 255, 260-61,
79 S. Ct. 746, 749,
3 L. Ed.2d 789, ___ (1959)
(quoting United States v. Whitridge,
197 U.S. 135, 143,
25 S. Ct. 406, 408,
49 L. Ed. 696, ___ (1905)).
Our own jurisprudence has consistently emphasized that
legislative intent, if clearly discernible, should prevail over
the plain language of a statute. We recently explained: "In the
interpretation of a statute our overriding goal has consistently
been to determine the Legislature's intent in enacting a
statute." Roig v. Kelsey,
135 N.J. 500, 515 (1994); see also
City of Newark v. United States,
254 F.2d 93, 97 (3d Cir. 1958)
(stating that intention of lawmakers is paramount in determining
meaning of statute); Safeway Trails, Inc. v. Furman,
41 N.J. 467,
477 (holding that Court's duty in construing statute is to
determine legislative intention), appeal dismissed and cert.
denied,
379 U.S. 14,
85 S. Ct. 144,
13 L. Ed.2d 84 (1964); State
v. Carlos,
187 N.J. Super. 406, 414 (App. Div. 1982) (holding
that judicial goal in statutory construction is to effectuate
legislative intent); Borough of Highlands v. Davis,
124 N.J.
Super. 217, 222 (Law Div. 1973) (stating that rules of statutory
construction should be subordinated to ultimate goal of carrying
out wishes of Legislature).
Thus, we have emphasized that "[s]tatutes are to be read sensibly rather than literally and the controlling legislative
intent is to be presumed as 'consonant to reason and good
discretion.'" Schierstead v. Brigantine,
29 N.J. 220, 230 (1959)
(quoting Morris Canal & Banking Co. v. Central R.R. Co.,
16 N.J.
Eq. 419, 428 (Ch. Div. 1863)). We have explained that "[i]t is
not the words but the internal sense of the law that controls."
Wollen v. Fort Lee,
27 N.J. 408, 418 (1958).
Like the majority, I believe that the appropriate test under
N.J.S.A. 39:6A-4 is whether a substantial nexus exists between
plaintiff's injuries and the assailant's use of an automobile.
Ante at ___ (slip op. at 5, 9). Unlike the majority, however,
but like the Law Division and the Appellate Division, I find that
the nexus between the two events is not substantial.
Contrary to the majority opinion, I respectfully submit
that the substantial-nexus test does not support the conclusion
that the automobile was "central" to the assault on the
hypothesis that "[it] furnished the assailant with . . . both
anonymity and a means of escape." Ante at ___ (slip op. at 13).
Under the majority's reasoning, the victim of any assault could
recover PIP benefits as long as the assailant used a motor
vehicle to escape or conceal his or her identity. Although the
Legislature conceivably could write a statute that affords such
coverage, I believe that it has not done so.
Central to the majority's result is the unsupported characterization of drive-by shootings as "an increasingly-common
part of the American experience." Ante at ___ (slip op. at 13).
Whatever truth lies in that characterization is unsupported by
any statistics or other authority. A drive-by shooting, "[like]
a verbal or physical confrontation with the occupants of another
vehicle[,] is not part of the normal use of an automobile."
Vasil v. Zullo,
238 N.J. Super. 572, 577 (App. Div. 1990). In
light of the undisputed fact that plaintiff's injuries were
caused by a bullet from a gun, I would find that the relationship
between those injuries and the assailant's automobile is so
attenuated that it fails the substantial-nexus test.
I would affirm.
Justices O'Hern and Garibaldi join in this dissent.
NO. A-30 SEPTEMBER TERM 1994
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
KURT LINDSTROM, by his Guardian ad
Litem, GEORGE K. LINDSTROM, and
GEORGE K. LINDSTROM, Individually,
Plaintiffs-Appellants,
v.
THE HANOVER INSURANCE COMPANY on
behalf of the NEW JERSEY AUTOMOBILE
FULL INSURANCE UNDERWRITING
ASSOCIATION,
Defendant-Respondent.
DECIDED December 19, 1994
Chief Justice Wilentz PRESIDING
OPINION BY Justice Clifford
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Pollock