CITATION: Livsey v. Mercury Insurance Group, 396 N.J. Super. 373 (App. Div. 2007), Coburn

DIGEST: A victim of a random, drive-by shooting can pursue a claim for uninsured motorist coverage.

CASE NOTE: Plaintiff, Camie Livsey, was struck by a stray bullet while stepping into her parked car. Two witnesses saw a Toyota fleeing from the scene and the trial judge found that the evidence was sufficient to establish that the bullet was fired from the car.

The plaintiff filed suit to obtain uninsured motorist benefits under her own automobile insurance policy with Mercury Insurance. The trial court concluded that she was not entitled to UM benefits for injuries sustained in a random, drive-by shooting. Thus, the court granted the defendant's motion for summary judgment.

The Appellate Division reversed and remanded for trial on the UM claim. At the outset, the court  noted that all automobile liability policies must provide UM coverage for bodily injury "caused by an accident" and arising from "the operation or use" of a motor vehicle. N.J.S.A. 17:28-1.1 (a) (2).

In this case, the court found both "causation" and "use". First, the issue of "causation" is to be determined from the viewpoint of the victim. Thus, an injury caused by an intentional act (such as a shooting) is still an "accident" from the perspective of the victim. Thus, "the shooting of Livsey was unquestionably an accident."

Second, the availability of UM coverage requires a "substantial nexus" between the accident and the "operation or use" of an automobile. Thus, the act causing the injury must be "a reasonable consequence of the use of an automobile", even if the act (a drive-by shooting) was not actually foreseen.

The court recognized that "drive-by shootings have become an increasingly-common part of the American experience." Thus, such occurrences are reasonably foreseeable consequences arising from the use of an automobile and an insured would have an objectively reasonable expectation of UM coverage.

Comment: The New Jersey Supreme Court has previously held that the victim of a random, drive-by shooting is entitled to receive PIP benefits. Linsdstrom v. Hanover Insurance, 138 N.J. 242 (1994).

LINK: http://lawlibrary.rutgers.edu/courts/appellate/a1238-06.opn.html