Plaintiff Pursued UIM (Underinsured Motorist) Coverage for Emotional Distress After Exiting His Vehicle and Seeing His Child Be Struck by a Car
Docket No.: A-4184-19
Decided December 14, 2021
Submitted by New Jersey Civil Lawyer, Jeffrey Hark
In a recent unpublished decision, the Appellate Division reviewed a trial court’s denial of summary judgment to the insurance company after plaintiff pursued UIM (Underinsured Motorist) coverage for emotional distress after exiting his vehicle and seeing his child be struck by a car.
In G.G., On May 2, 2016, B.G. drove his two children to school and parked his car adjacent to the curb and across the street from the school building. B.G. got out of his car and helped his children exit the car. B.G. believed he left the engine in his car running. B.G. then walked his children to a crosswalk staffed by a crossing guard. The crosswalk was about one block from where B.G. parked his car. While standing on the sidewalk and watching his children cross the street in the designated crosswalk, B.G. saw the driver of a car strike his children. B.G. suffered emotional distress after witnessing his children get hit by the car.
At the time of the accident, B.G.’s car was insured under a commercial automobile policy issued by NJM for B.G.’s business vehicle. Under NJM’s policy, UIM benefits are available to “anyone occupying a covered auto.” The term “occupying” under NJM’s policy is defined as “in, upon, getting in, on, out or off.”
B.G. filed suit against various defendants, alleging he suffered emotional distress based on his witnessing the children being struck by a car. B.G. sought UIM benefits from NJM under his business automobile policy.
NJM filed a motion for summary judgment asserting the children and B.G. were not entitled to UIM benefits because they were not occupying the vehicle at the time of the accident. The court granted the motion as to the children, but denied the motion as to B.G. without prejudice, pending further discovery.
NJM appealed and the Appellate Division reversed, finding that B.G.’s proximity to the vehicle and reason for exiting lacked the “substantial nexus” to occupancy of the vehicle, and therefore was not afforded UIM coverage for such claim.
This case is important to understand that in certain circumstances, an individual can seek UIM coverage in occupying the vehicle, even if they were not actually in the car at the time. Although the plaintiff above was found not to be occupying, in the case of Macchi v. Connecticut General Insurance Co., 354 N.J. Super. 64 (App. Div. 2002), the plaintiff was afforded UIM coverage after she observed an overturn vehicle and exited to help. While helping outside her vehicle, she was struck by another vehicle. The Court found a “substantial nexus” of occupancy taking into account her position and reason for exiting.
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