A Capehart Scatchard Blog

Parent Witnessing Children Struck By Car Not Entitled To Underinsured Motorist Benefits

By on February 4, 2022 in Coverage with 0 Comments

The plaintiff, B.G., drove his two children to school and parked his car next to the curb and across the street from the school building.  He got out of his car and helped his children exit the car, leaving the engine in his car running.  After walking his children one block to a crosswalk staffed by a crossing guard, he watched his children cross the street and saw the driver of a car strike his children.  In C.G. v. Cheheli, 2021 N.J. Super. Unpub. LEXIS 3092 (App. Div. Dec. 14, 2021), the issue was whether the parent, B.G., could pursue a claim for underinsured motorist benefits under his automobile insurance policy for his emotional distress suffered from witnessing his children being struck by the car.  (B.G.’s claim for negligent infliction of emotional distress was based upon Portee v. Jaffee, 84 N.J. 88 (1980)).

B.G. was insured under a commercial automobile policy issued by NJM for B.G.’s business vehicle.  Under the NJM policy, underinsured motorist benefits (“UIM”) benefits are available to “anyone occupying a covered auto.”  Under the NJM policy, “occupying” is defined as “in, upon, getting in, on, out or off.”

At the trial court level, NJM filed a motion for summary judgment asserting that the children and B.G. were not entitled to UIM benefits because they were not occupying B.G.’s vehicle when the accident occurred.  While the trial court judge granted the motion as to the children, he denied the motion as to B.G. without prejudice at that time. 

Upon the completion of discovery, NJM refiled its motion for summary judgment as to B.G.’s claim, arguing that B.G. was not occupying his car at the time of his injury.  The trial court judge found that B.G. “had every intention of returning to his running car after briefly walking his children to the crosswalk.”  Thus, he found that there was a reasonable inference that B.G. had a substantial nexus to his running vehicle, which was insured by NJM.  Finding that B.G. satisfied the substantial nexus test, the trial court judge determined that B.G. was entitled to UIM befits under NJM’s policy.  Thus, he entered an order denying NJM’s motion for summary judgment.

NJM filed a motion for reconsideration, which was also denied.  Thereafter, NJM appealed this decision to the Appellate Division, arguing that B.G.’s use of the car was coincidental to his arrival at the location where the injury occurred.  Further, it contended that there was no substantial nexus between the insured vehicle and B.G.’s injury.  NJM asserted that “B.G. was not engaged with his car at the time of his injury and therefore he failed to satisfy the substantial nexus test for entitlement to UIM coverage.” 

The Appellate Division agreed with this argument.

The Court pointed out that for B.G. to be entitled to UIM coverage, he had to be “occupying” it at the time of the accident.  Whether a person is deemed “occupying” a motor vehicle for purposes of uninsured or underinsured motorist coverage “must be determined on a case-by-case basis, depending on the facts of the accident and the use of [the] vehicle.” 

After reviewing the facts of this case, the Appellate Division found that B.G. was not occupying the insured vehicle when he witnessed the oncoming car strike his children.  Further, the Court found that B.G. failed to establish the requisite “substantial nexus” between the accident and his insured vehicle.

The Court noted that B.G. had parked his car, exited his vehicle with his children and walked with his children to a nearby crosswalk.  When he saw his children struck by an oncoming car, he was a block away from his own car.  Thus, the Appellate Division noted that B.G.’s insured vehicle was “simply coincidental” to the injury he suffered.  The Court pointed out that “[n]ot every act of driving to a location, parking, and exiting a car satisfies the definition of ‘occupying’ a car to be entitled to UIM coverage.” 

In summary, the Appellate Division found that B.G.’s emotional distress claim was “merely coincidental to the use of his car.”  The Court ruled that “[b]ecause B.G. was not occupying the insured vehicle at the time he witnessed the accident, he was not entitled to UIM coverage under NJM’s policy.”  Accordingly, the Appellate Division found that the motion judge erred in denying NJM’s motion for summary judgment and granting B.G.’s cross motion for summary judgment.  Thus, it reversed the trial court’s order, entering an order in favor of NJM.


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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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