November 9, 2007

Re: Uninsured Motorist Benefits

To The Companies In Interest

In Livsey v. Mercury Insurance Group, 2007 WL 3085030, the Superior Court of New Jersey Appellate Division determined that uninsured motorist (UM) benefits are available to an individual injured in a random drive-by shooting. In Livsey, the plaintiff claimed that as she entered her car she was struck by a bullet fired from another car. She filed suit in the Law Division under her New Jersey automobile insurance policy for UM benefits. Mercury Insurance Group obtained summary judgment as the motion judge found, as a matter of law, that UM benefits were not available for a random drive-by shooting. The question presented on appeal was whether Livsey was entitled to pursue a claim for UM benefits.

New Jersey’s UM statute, N.J.S.A. 17:28-1.1 (a) (2) provides in pertinent part that all automobile liability insurance policies must include coverage to the insured for “bodily injury caused by an accident and arising out of the ownership, maintenance, operation or use of such uninsured or hit and run motor vehicle.

In the context of UM coverage whether an incident causing bodily injury is an accident is determined from the insured’s viewpoint. Shaw v. City of New Jersey, 174 N.J. 567 (2002). The Court noted that the shooting of Livsey was unquestionably an accident from Livsey’s perspective.

The Court then addressed whether Livsey’s accident arose “out of the use of the uninsured motor vehicle”. The Court found there was a nexus between the automobile and the injury:

The automobile did more than provide a setting or 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 anonymity and a means to escape. The assailant would not likely have committed such an act of apparent random violence without the use of a car.

Thus, the Court determined the accident arose out of the use of an uninsured motor vehicle. The Court also noted that the UM statute is to be construed broadly, extending coverage whenever reasonable. Based on the above, the court determined UM benefits were available to Livsey.

If you should have any questions or would like a copy of Livsey, please do not hesitate to contact Glendon Danks at (856) 751-5285 or by e-mail at danks@bbs-law.com.