SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6421-94T2
RICHARD D. DIEHL,
Plaintiff/Respondent,
v.
CUMBERLAND MUTUAL FIRE
INSURANCE COMPANY,
Defendant/Appellant,
and
MARKET TRANSITION FACILITY
OF NEW JERSEY BY CSC INSURANCE
SERVICES; NEW JERSEY AUTOMOBILE FULL
INSURANCE UNDERWRITING ASSOCIATION
Defendant.
___________________________________________________________________
Argued: November 4, 1996 - Decided: January 9, 1997
Before Judges Landau, Wallace and Kimmelman.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County.
Frank G. Basile argued the cause for appellant
(Basile & Testa, attorneys; Mr. Basile and
Diane Vari, of counsel and on the brief).
Richard C. Borton argued the cause for
respondent Richard D. Diehl (Michael N.
Kouvatas, attorney; Mr. Borton, on the brief).
Arthur E. Donnelly argued the cause for
respondent Market Transition (Montano,
Summers, Mullen, Manuel, Owens & Gregorio,
attorneys; David D. Duffin, on the brief).
The opinion of the court was delivered by
WALLACE, JR., J.A.D.
The issue here requires us to determine whether coverage
should be afforded under an automobile liability insurance policy
or under a homeowner's insurance policy. The motion judge found
that the injury did not arise out of the use of an automobile and
concluded that the homeowner's insurance policy provided coverage
for personal liability to a third party. We disagree and reverse.
The facts are relatively simple. On December 26, 1989,
Plaintiff Richard Diehl was driving away from his home when he
noticed his brother George Diehl approaching in a pickup truck.
Richard pulled over to the side of the road. He got out of his
vehicle, walked around the rear of the truck and was bitten in the
face by George's dog, which was in the open cargo area of the
pickup truck. The truck was owned by Theresa Brown and insured by
the New Jersey Automobile Full Insurance Underwriting Association
by its servicing carrier, CSC Insurance Services (CSC). At the
time of the incident, George resided with his mother who had
homeowner's insurance with defendant Cumberland Mutual Fire
Insurance Company (Cumberland).
On February 21, 1990, plaintiff's attorney gave Cumberland
notice of the claim. Cumberland retained East Company to
investigate the claim. Following the investigation, Cumberland
denied coverage.
On July 31, 1991, plaintiff filed a complaint against George
alleging negligence as a result of the dog bite. On August 1,
1991, unrelated to plaintiff's complaint, Cumberland gave CSC
notice of the claim, alleging that CSC's insured's vehicle was used
in the incident and requesting that CSC telephone their office to
discuss the matter. CSC wrote to Cumberland that it would
investigate to "determine coverage."
George was served with plaintiff's complaint on August 15,
1991. Neither he nor his mother forwarded a copy of the complaint
to Cumberland. However, on August 26, 1991, plaintiff's counsel
sent a copy of the complaint to Cumberland. In October 1991,
Cumberland wrote to George's mother requesting a copy of the
complaint, but she did not respond until March 1992. On April 16,
1992, Cumberland wrote to her denying coverage for failure to
comply with conditions and provisions of the policy.
Plaintiff filed a motion to serve Cumberland and to enter
default. On August 21, 1992, the court denied the motion to serve
Cumberland and granted the motion to enter default against George.
A proof hearing was held on December 16, 1992, and the court
entered judgment in favor of Richard against George in the total
amount of $55,085.72.
George, with the consent of his mother, assigned to Richard
all of his claims against Cumberland for its refusal to defend and
indemnify him for the dog bite complaint and judgment. Richard
then filed a complaint against Cumberland for damages and for the
refusal to defend. Cumberland filed its answer alleging that the
claim does not arise from any covered loss.
In December 1993, plaintiff's counsel wrote to CSC, describing
the accident and enclosing a copy of the complaint. CSC did not
reply. On November 31, 1994, plaintiff filed a motion to amend the
complaint to join CSC. The motion was granted. CSC filed its
answer in March, 1995, raising various defenses, including lack of
coverage. CSC and Cumberland each filed a motion for summary
judgment based on lack of insurance coverage. After argument, the
motion judge granted CSC's motion and dismissed all claims against
CSC on May 12, 1995. Plaintiff, who was not present at the
argument, filed a motion for reconsideration of the order
dismissing CSC from the action. On May 26, 1995, the court heard
argument and denied plaintiff's motion for reconsideration. At the
same hearing, the judge denied Cumberland's motion for summary
judgment. The motion judge concluded that because a third party's
injury caused by a dog sitting in the back of a vehicle does not
arise out of a "use of the automobile" to trigger coverage of an
automobile policy, Cumberland's homeowner's policy must provide
coverage.
Plaintiff then filed a motion for summary judgment on
liability. The motion judge granted the motion on June 29, 1995.
In July, plaintiff moved for summary judgment seeking an award of
damages and counsel fees. On September 15, 1995, the motion judge
granted plaintiff's motion and entered judgment against Cumberland
in the amount of $55,275.16 plus pre-judgment interest of $5,861.79
and counsel fees and costs of $2,590.
On appeal Cumberland contends that plaintiff's injuries are
excluded from coverage under the homeowner's policy because they
are covered under the automobile policy.
Cumberland's policy expressly excludes coverage for bodily injury arising out of the "maintenance, operation, ownership, or use . . . of any . . . motor vehicle . . . owned or operated by . . . any insured."
N.J.S.A. 39:6B-1 requires every owner of a motor vehicle to insure against losses arising out of the "ownership, maintenance, operation or use of a motor vehicle." In order for CSC's liability insurance policy to cover this incident, the injury to Richard must have arisen out of the ownership, maintenance, operation or use of a motor vehicle.
Some general principles are helpful in reaching our decision. Initially, we note that "[w]hen members of the public purchase policies of insurance they are entitled to the broad measure of protection necessary to fulfill their reasonable expectations." Sparks v. St. Paul Ins. Co., 100 N.J. 325, 337 (1985) (quoting Kievit v. Loyal Protective Life Ins. Co., 34 N.J. 475, 482 (1961)). More importantly, there must be a "substantial nexus between the injury and the use of the vehicle in order for the obligation to provide coverage to arise." 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). Westchester was concerned with
liability coverage where the plaintiff was struck by a stick thrown
from the insured's car. In addressing whether this conduct
constituted an act arising out of the use of the automobile, we
articulated the substantial nexus test.
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. Whether the requisite connection
or degree of relationship exists depends upon
the circumstances of the particular case.
[Id. at 38 (citation omitted).]
Recently, our Supreme Court instructed that the test developed
in Westchester should be used in determining whether the facts
reveal a "substantial nexus between the accident and the use of an
automobile." Lindstrom v. Hanover Ins. Co.,
138 N.J. 242, 250
(1994). In Lindstrom, the plaintiff had been shot in a drive-by
shooting. Id. at 244. The Court reviewed the developing case law
in New Jersey and concluded that the random shooting that caused
the plaintiff's gunshot injuries was an accident within the
contemplation of the insurance coverage. Id. at 251-52. The Court
explained:
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.
[Id. at 252.]
Consistent with Lindstrom, we are satisfied that automobile
liability insurance should cover this injury caused by a dog bite
to the face occurring while the dog was in the open rear deck of a
pickup truck because it arose out of the use of the vehicle to
transport the dog. Moreover, the bite incident was facilitated by
the height and open design of the deck. In our view the act was a
natural and foreseeable consequence of the use of the vehicle, and
there was a substantial nexus between the dog bite and the use of
the vehicle at the time the dog bit the plaintiff. Cf. Smaul v.
Irvington General Hosp.,
108 N.J. 474 (1987) (holding that driver
who was assaulted by pedestrians when he stopped his car to ask
directions is entitled to PIP benefits because incident "directly
involv[ed] the use of this automobile").
We recognize that other jurisdictions have reached varying
results in determining whether, for the purpose of extending
automobile liability insurance, a dog bite arose out of the use of
a vehicle. Compare Farmers Ins. Co. of Ariz. v. Till,
825 P.2d 954
(Ariz. Ct. App. 1992) (dog's attack on vehicle's passenger arose
out of use of vehicle because vehicle's owner used "the `inherent'
design of pickup/camper to separate her passenger from her [dog]")
and Hartford Accident & Indem. Co. v. Civil Serv. Employees Ins.
Co.,
108 Cal. Rptr. 737 (Ct. App. 1973) (attack of passenger by dog
transported in car involved use of automobile because vehicle was
used "in the manner intended or contemplated by the insured") and
Hogle v. Hogle,
356 A.2d 172 (Conn. 1975) (car accident caused by
driver's dog that jumped from rear seat to front left window arose
out of use of car) and Transamerica v. Farmers Ins. Exch.,
463 N.W.2d 641 (N.D. 1990) (pedestrian's injuries caused by dog when
she walked by insured's pickup truck on public street arose out of
use of vehicle) with Sanchez v. State Farm Mutual Automobile Ins.
Co.,
878 P.2d 31 (Colo. Ct. App. 1994) (police officer's disabling
injuries caused by dog when it jumped from suspect's vehicle and
attacked did not arise out of use of vehicle in that "the dog's
attack did not occur because it had been in the vehicle but rather
because it sought to protect its master") and American States Ins.
Co. v. Allstate Ins. Co.,
484 So.2d 1363 (Fla. Dist. Ct. App.
1986) (injury to truck passenger from dog which was riding in back
of pickup truck and bit passenger did not arise from use of truck
because truck was used to go to store while dog and passenger
merely accompanied trip) and Alvarino v. Allstate Ins. Co.,
537 A.2d 18 (Pa. Super. Ct. 1988) (injuries caused when dog bit
passenger in van did not arise from use of van) and Heringlake v.
State Farm Fire & Casualty Co.,
872 P.2d 539 (Wash. Ct. App. 1994)
(no causal connection where dog bit child in back of pickup truck
even though dog was frequently transported in truck, dog's food and
blanket were kept in truck, and dog was considered security for
truck).
It is not disputed that Cumberland's insurance policy excluded
coverage for bodily injury arising out of the use of a motor
vehicle. As we conclude that the dog bite here had a substantial
nexus to the use of a motor vehicle and arose out of the use of a
motor vehicle, the exclusion applies to bar plaintiff's recovery
from Cumberland. It was error not to grant summary judgment in
favor of Cumberland.
Reversed.