Carjacking Victim Entitled to UM Benefits in New Jersey

By Gina M. Zippilli, Esq.

Generally speaking, to be entitled to UM benefits in New Jersey, an insured must show that a vehicle is uninsured; that the claimed injuries were the result of an accident; and that the injury arose out of the ownership, maintenance or use of the insured vehicle.

The issue in Gordon v. Liberty Mutual Fire Ins. Co., A-4446-13T2, (App. Div., July 16, 2015) was whether an insured who sustained injuries during a carjacking after exiting her vehicle but before the assailants entered the vehicle was entitled to UM benefits.  The facts in Gordon are simple: the insured driver was carjacked in her driveway.  After exiting her vehicle, two men approached her and demanded the keys to the insured’s Mercedes.  After she refused, an altercation between the three ensued resulting in the insured sustaining injuries.

Liberty Mutual denied UM benefits on the grounds that the insured was already outside of the vehicle when she sustained the injuries and thus the requisite  “substantial nexus” between the vehicle and the injuries was absent.  The trial court agreed, granted summary judgment to Liberty, and further reasoned that while the car may have been a target of the assailants the men were not “operators” of the Mercedes at the time of the injuries.

The Appellate Division reversed.  Agreeing with the insured that the carjacking rendered the vehicle “uninsured,” the court had to next tackle whether the assailants were “operators” of the vehicle.  Noting that the UM statute does not define the term “operator,” the court relied on the definition of that term as set forth in other statutes, most notably N.J.S.A. 39:4-50 – driving under the influence- to conclude that an operator includes conduct that evidences an intent, combined with movements, to put a car in motion.  Here, giving plaintiff all reasonable inferences, the court was convinced that the verbal actions and physical movements of the men indicated their intent to exercise control over the car even if they had not yet done so.  In other words, it was irrelevant whether the two men had actually physically entered the vehicle.

Like the term “operator,” the phrase “arising out of the use of motor vehicle,” is also left undefined by the UM statute.  In finding this prong satisfied, and thus the requisite substantial nexus, the court reasoned that the use of the Mercedes played a critical role in the resulting injuries.  Summary judgment reversed.