NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2153-06T32153-06T3

TYRELL HARDY, by and through his

Guardian ad Litem, VERA DOWDELL,

Plaintiff-Appellant,

v.

HAMZA ABDUL-MATIN, MERRICK L. HARRIS,

PUBLIC SERVICE ELECTRIC AND GAS

COMPANY, and JOSEPH M. KULAK,

Defendants,

and

LIBERTY MUTUAL INSURANCE COMPANY,

Defendant-Respondent.

_________________________________________________

Argued October 3, 2007 - Decided

Before Judges Axelrad, Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, L-3813-06.

Randi S. Greenberg argued the cause for

appellant (Law Office of John P. McGovern,

attorney; Ms. Greenberg, on the brief).

Raymond Kramkowski argued the cause for

respondent (Law Offices of Linda S. Baumann,

attorney; Mr. Kramkowski, of counsel and on

the brief).

The opinion of the court was delivered by

PAYNE, J.A.D.

This case raises issues of insurance coverage for a passenger injured while riding in a stolen vehicle who claims that he was unaware of the status of the vehicle.

Plaintiff, Tyrell Hardy, a fourteen-year-old back-seat passenger in a stolen car, involved in an accident that resulted in injury to all of the car's occupants, sought personal injury protection (PIP) and uninsured motorist (UM) benefits as a family member covered under an automobile insurance policy issued by defendant Liberty Mutual Insurance Company to Hardy's grandmother, Vera Dowdell. Despite Hardy's position that he was unaware of the status of the car, the motion judge granted summary judgment to Liberty Mutual on Hardy's claim, finding that policy provisions excluded coverage in the circumstances presented. This appeal followed.

The record discloses that Hardy was severely injured on the afternoon of October 20, 2004, when a stolen Subaru Imprezza in which he was riding, driven by sixteen-year-old defendant, Hamza Abdul-Matin, was involved in a front-end collision with a Public Service Electric & Gas (PSE&G) Company truck at an intersection in East Orange. As the car burned, all vehicle occupants were pulled from the car by onlookers. Hardy suffered a number of injuries, including a broken leg, a displaced pelvis, fractured facial bones, and cuts and bruises, requiring a hospitalization of approximately one month. The front seat passenger, twenty-four-year-old Alquan Edwards, did not survive his injuries.

The driver, Abdul-Matin, although sustaining a compound fracture of the left femur and head lacerations, initially escaped from the scene with the assistance of friends, but later was apprehended when he sought medical assistance, claiming that he had been hit by a car while a pedestrian. Abdul-Matin ultimately pled guilty to one count of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), downgraded to a third-degree crime for purposes of sentencing, to one count of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and to one count of third-degree receipt of stolen property, N.J.S.A. 2C:20-7. Hardy was not charged with any crime.

Hardy claims little recollection of the circumstances of the accident. In a deposition conducted after Liberty had moved for summary judgment, Hardy admitted that his girlfriend was the sister of front-seat passenger Edwards, whom Hardy had known for approximately two years. He claimed less knowledge of Abdul-Matin, a friend of Edwards, seen by Hardy "around my ways sometimes." Hardy denied knowledge of Abdul-Matin's address, age, family, or school. Hardy also denied knowledge that the vehicle in which he was riding was stolen, and he denied recollection of any of the circumstances of the accident, including its date, time and location. He also denied knowledge of where he had entered the car, and could not explain why he required a car to reach a luncheonette that was located within a block of his house. Hardy testified that he had never been in the car previously, and he had never seen either Abdul-Matin or Edwards in the car before. Hardy did not ask either person who was the owner of the car, and he denied knowledge that either had been arrested previously for stealing cars. Additionally, Hardy denied noticing whether Abdul-Matin had car keys, whether the ignition lock was intact, and whether any car windows were broken. The prosecutor's office investigatory report indicates that Abdul-Matin and front-seat passenger, Edwards, were known by a witness as car thieves, and that the car was estimated by the PSE&G Company truck's driver to have been traveling at an excessive rate of speed of approximately eighty miles per hour when the collision occurred.

Liberty Mutual concedes that at the time of the accident, Hardy was insured as a family member under auto coverage issued by it to Hardy's grandmother, Vera Dowdell, with whom Hardy lived. The PIP provisions of Liberty Mutual's policy exclude PIP coverage for any insured: "Operating or 'occupying' an 'auto' without the permission of the: (1) Owner of the 'auto' or (2) Named insured under the policy insuring that 'auto.'" The exclusion mirrors the text of N.J.S.A. 39:6A-7, as it was amended by L. 1983, c. 362,