MARIA R. MACIAS v. PROSPECT TERRACE APARTMENTS, INC.; FOREST HILL PROPERTIES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3394-04T13394-04T1

MARIA R. MACIAS,

Plaintiff-Appellant,

v.

PROSPECT TERRACE APARTMENTS,

INC.; FOREST HILL PROPERTIES,

Defendants,

and

LIBERTY MUTUAL INSURANCE

GROUP,

Defendant-Respondent.

 

Submitted November 30, 2005 - Decided

Before Judges Weissbard, Winkelstein and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-1783-03.

Victor M. Covelli, attorney for appellant.

Sherman & Viscomi, attorneys for respondent (Susan M. Pierce, on the brief).

PER CURIAM

Plaintiff appeals from a summary judgment of the Law Division that dismissed her complaint against defendant Liberty Mutual Insurance Group for uninsured motorist (UM) benefits. We reverse.

Plaintiff resided in an apartment complex on Bath Avenue in Long Branch. Because the complex's parking lot was too small to hold all of the residents' cars, plaintiff frequently parked her car on the street in front of the complex. The sidewalk is approximately twenty inches above street level. A grassy incline, approximately four feet wide, covers the space between the elevated sidewalk and the street. To alleviate the dangers presented by the grassy incline, a set of three steps was built into the incline for residents to use as a means to access the street. The steps are about six feet wide. No other steps across the grassy incline are available for the residents.

On May 9, 2001, at around 7:30 a.m., plaintiff left her apartment to take her daughter to school. Her car was parked on the street. She took her normal path to the area of the sidewalk where she usually used the steps to walk down to the street. When she reached this point, she noticed an unidentified vehicle illegally parked at the foot of the steps, blocking passage to the street.

This unidentified vehicle caused plaintiff to choose a different route to her vehicle. She walked along the sidewalk to where she had parked her car and attempted to descend to the street by way of the grassy incline. As she took her second step, she slipped and fell, sustaining a broken ankle. Plaintiff was unable to discern the unidentified vehicle's license plate number.

Plaintiff was taken to the hospital by an ambulance. Upon her return from the hospital, the unidentified vehicle was gone; she has not been able to locate the vehicle.

At the time of the accident, plaintiff had UM coverage with Liberty Mutual. Plaintiff sought UM benefits on the grounds that her fall was caused, in part, by the unidentified motor vehicle; it blocked her access to the street requiring her to walk down the grassy incline. Liberty Mutual argues that no substantial nexus exists between the accident and the unidentified vehicle.

An insured who suffers an injury caused by an accident and arising out of the ownership, maintenance, or use of an uninsured or hit-and-run motor vehicle may make a claim for UM benefits under the insured's own automobile policy. See N.J.S.A. 17:28-1.1e(2) (defining uninsured motor vehicle). A vehicle is considered a hit-and-run vehicle when a person's death or personal injury "arises out of . . . use of a motor vehicle . . . but the identity of the operator or owner cannot be ascertained . . . ." N.J.S.A. 39:6-78. Plaintiff's insurance policy with Liberty Mutual in effect at the time of her accident reflects this language. It says:

INSURING AGREEMENT

A. We will pay compensatory damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury:"

1. Sustained by an "insured;" and

2. Caused by an accident.

The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the "uninsured motor vehicle."

. . . .

C. "Uninsured motor vehicle" means a land motor vehicle or trailer of any type:

1. To which no bodily injury liability bond or policy applies at the time of the accident.

. . . .

3. Which is a hit-and-run vehicle whose operator or owner cannot be identified and which hits:

a. you . . . .

No dispute exists that at the time of the accident plaintiff was an insured under her policy. Our focus is on whether plaintiff's injuries, at least in part, could have arisen out of the use of the unidentified motor vehicle; in other words, whether a substantial nexus exists between the vehicle and plaintiff's accident.

For purposes of UM coverage, what constitutes the use of an automobile is broader than operation of the vehicle. In Westchester Fire Ins. Co. v. Cont'l Ins. Co., 126 N.J. Super. 29, 36-37 (App. Div. 1973), aff'd, 65 N.J. 152 (1974), for example, a passenger who threw a stick out of a car window, injuring the plaintiff's eye, was said to be "using" the vehicle within the statutory definition. This was because the vehicle was being "employed for purposes of transportation," which is "some purpose of the user." Id. at 37. In concluding that the automobile insurance carriers were obligated to defend and provide coverage, id. at 42, we reasoned that the passenger's decision to throw a stick out of the window represented a "sufficiently foreseeable consequence of the use of the vehicle to mandate coverage under the terms of the policies." Id. at 39. We concluded that the jury could find a substantial nexus between the injury sustained and the use of the automobile. Ibid.

More akin to the case here are the facts in Tornatore v. Selective Ins. Co. of Am., 302 N.J. Super. 244 (App. Div. 1997). In Tornatore, a good Samaritan stopped to render assistance to bus passengers after an accident that involved three buses and two tractor-trailers. Id. at 247. The "phantom" vehicle that had purportedly caused the wreck had fled the scene. Ibid. When the plaintiff entered the bus, someone yelled "Fire!" and he was injured in an ensuing stampede. Ibid. In construing the UM coverage statute, we concluded that even though the plaintiff may not have occupied the bus when the collision occurred, his subsequent occupancy was "directly, even foreseeably, attributable to the accident." Id. at 251-52 (internal quotation omitted). We said that the plaintiff's injuries "could all be related . . . to the conduct of the so-called 'hit-and-run' driver." Id. at 255.

Like in Tornatore, the jury here could find that plaintiff's fall and subsequent injuries arose out of the use of the unidentified vehicle. Plaintiff altered her path to her own vehicle solely because the unidentified vehicle blocked her access to the street via the steps. The "use" of the automobile in this case could be considered more than an "attending circumstance" of her accident. See Home State Ins. Co. v. Cont'l Ins. Co., 313 N.J. Super. 584, 592, 593 (App. Div. 1998) (to fulfill the substantial nexus test, the uninsured vehicle must be more involved than merely providing a setting in which the injury occurs), aff'd, 158 N.J. 104 (1999). A jury could find that plaintiff's choice to take another route to her car was "directly, even foreseeably, attributable" to the illegal parking. Tornatore, supra, 302 N.J. Super. at 251-52.

While not addressing the issue of whether an illegally parked car can constitute a "use" for UM purposes, in O'Connell v. N.J. Mfrs. Ins. Co., 306 N.J. Super. 166 (App. Div. 1997), certif. granted, 157 N.J. 405, appeal dismissed, 157 N.J. 537 (1998), we implicitly concluded that it could. In O'Connell, the plaintiff alleged that his motor vehicle accident was caused in part by an unidentified truck that was illegally parked in the area where the accident occurred. Id. at 169-70. Although the issue on appeal involved the reasonableness of the plaintiff's efforts to ascertain the identity of the owner or driver of the truck, id. at 171, by even reaching that issue we implicitly found that the parked truck could constitute a "use" of the vehicle.

Liberty Mutual argues that this case is comparable to Cerullo v. Allstate Ins. Co., 236 N.J. Super. 372 (App. Div. 1989), where we concluded that no UM benefits were warranted. In that case, the claimant "cut off" the unidentified vehicle; at the next traffic light, a man got out of that vehicle and assaulted the claimant. Id. at 373-74. We denied UM coverage because the intentional criminal act fell outside the "'contemplation of the parties to the UM contract,'" and was not "'a natural and probable incident or consequence of the use of an automobile.'" Id. at 377 (quoting Sciascia v. Am. Ins. Co., 183 N.J. Super. 352, 359 (Law Div.), aff'd, 189 N.J. Super. 236 (App. Div. 1983)). The facts here are inapposite to those in Cerullo. This is not a case where intentional criminal conduct caused plaintiff's injuries. Consequently, Liberty Mutual's reliance on Cerullo is misplaced.

Here, although the precise nature of the attendant accident may not have been foreseen, it was reasonable to expect that blocking the steps with the car might create a hazard. Thus, a substantial nexus may be found to exist between plaintiff's ankle injury and the unidentified vehicle. Given all the inferences to be drawn in plaintiff's favor on the summary judgment motion, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), whether that substantial nexus exists is a question for the jury.

 
Reversed and remanded for further proceedings consistent with this opinion.

Plaintiff has settled her claims against defendants Prospect Terrace Apartments and Forest Hill Properties.

In its brief on appeal, Liberty Mutual claims that plaintiff should also be denied UM coverage because she failed to make reasonable efforts to obtain the identity of the unidentified vehicle. That argument was not raised before the Law Division and we decline to address it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (appellate courts will decline to consider questions or issues not properly presented to the trial court unless the questions on appeal go to the trial court's jurisdiction or matters of great public concern).

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A-3394-04T1

December 21, 2005