A stray bullet hit Livsey as she stepped into her car. Livsey's medical bills exceed $600,000.00. A police report indicated that witnesses on the scene stated that they saw an older model Toyota Camry fleeing the scene. There were no “shell casings” in the area. The vehicle could not be identified. The case was turned over to the police. Livsey filed suit under her New Jersey automobile insurance policy for uninsured motorist benefits (“UM”). Mercury Insurance Group obtained summary judgment, and Livsey appealed.
The question presented to the appellant court was whether Livsey was entitled to pursue a claim for UM benefits.
The relevant statute provides, in pertinent part, that all automobile liability insurance policies must include coverage to the insured for “bodily injury … caused by accident and arising out of the ownership, maintenance, operation or use of such uninsured or hit and run motor vehicle….” Thus, in essence, plaintiff must prove that her injuries were caused by an “accident,” and that the accident arose “out of the operation or use” of an uninsured vehicle.
The Court said that “[i]nsureds are entitled to coverage in accordance with their objectively-reasonable expectations that are supported by any fair interpretation of the law.” The Court also explained that the statutory amendment adding reference to objects propelled by or from an automobile eliminate the requirement that the vehicle literally strike the insured.”
The Court then observed that PIP liability depended on there being a “substantial nexus” between the accident and the use of the automobile. In that regard, the Court said that PIP coverage applied to intentional as well as negligent acts. The “act causing 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.”
The Court found that plaintiff was entitled to PIP benefits, not simply because the bullet was propelled from the automobile, but because of the following nexus between the use of the automobile and the injury: [T]he 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.
The court then perceived no principled basis in these circumstances of a random, drive-by shooting for treating UM coverage differently from PIP coverage on the central question of whether there was a sufficient nexus between the use of the automobile and the injury. “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.“
The Superior Court held that a driver's being shot in a random drive-by shooting was an “accident” arising “out of the operation or use” of an uninsured vehicle, thus supporting a claim for uninsured motorist (UM) coverage. The ruling of the trial court, in favor of Mercury, was reversed. This case is Livsey v. Mercury Insurance Group, 2007 WL 3085030 (N.J.Super.A.D.).