The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1679-23
SHANI HARRELL,
Plaintiff-Appellant,
v.
MODY MANAGEMENT, LLC, d/b/a
DUNKIN', DUNKIN' BRANDS
GROUP, INC., DUNKIN' BRANDS
INC., INSPIRE BRANDS,
and DUNKIN' DONUTS
FRANCHISING, LLC,
Defendants,
and
PROGRESSIVE GARDEN
STATE INSURANCE COMPANY,
Defendant-Respondent.
_________________________________
Argued October 9, 2024 – Decided October 23, 2024
Before Judges Smith and Chase.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-3202-22.
Ana Rita Ferreira argued the cause for appellant (Starr,
Gern, Davison & Rubin, PC, attorneys; Ana Rita
Ferreira, of counsel and on the brief).
Allison L. Silverstein argued the cause for respondent
(Vella & Maren, attorneys; Allison L. Silverstein, on
the brief).
PER CURIAM
Plaintiff, Shani Harrell, appeals the trial court's order granting summary
judgment in favor of defendant Progressive Garden State Insurance Company
and denying her personal injury protection (PIP) benefits. Plaintiff suffered
severe burns to her body after a restaurant employee spilled a hot beverage on
her at a Dunkin' Donuts drive-through. She applied for PIP benefits under her
insurance policy, and defendant denied coverage.
Plaintiff sued, and both parties moved for summary judgment on the
question of coverage. The trial court ultimately granted summary judgment for
defendant, finding plaintiff was not operating her vehicle at the time she was
injured, and that there was no "causal relationship" between plaintiff's use of the
vehicle and her injuries.
We reverse for the reasons which follow.
I.
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2
The record shows that plaintiff was stopped in the drive-through of a
Dunkin' Donuts while purchasing hot tea. When the tea was passed to her
through the driver's side window, the beverage cup and its top became dislodged
from the holder, and the contents spilled into the driver's compartment of the car
onto plaintiff. The hot liquid flowed into plaintiff's lap, between her legs, and
onto the seat beneath her, burning her.
Plaintiff subsequently filed a claim for PIP benefits pursuant to her auto
insurance policy with defendant. Page 7 of her policy contains the relevant
language. It states:
Part II-PERSONAL INJURY PROTECTION (PIP)
COVERAGE
....
Subject to the Limits of Liability . . . we will pay
benefits incurred because of bodily injury caused by an
accident and sustained by an injured person:
while occupying, entering into, alighting from, getting
on, getting off of, loading, unloading, or using an
automobile . . . .
A-1679-23
3
Defendant denied the claim, stating, "there is no connection between the
injuries being claimed and any qualifying automobile." Defendant further stated
that plaintiff's injuries were not the "result of occupying, entering into, alighting
from or using an automobile," under N.J.S.A. 39:6A-4 and plaintiff's policy.
Plaintiff sued, seeking coverage and corresponding benefits under the
policy, including personal injury protection, wage loss, and essential service
benefits.
The parties cross-moved for summary judgment, and the trial court
initially denied both motions. After cross-motions for reconsideration, the
parties stipulated to the facts and sought a declaration of coverage under the
policy.
The trial court found that "there [was] no nexus between the use of the
automobile and the injuries that. . . subsequently occurred and that the car was
not being operated at the time of the injury." The trial court then issued two
orders. In its first order, the trial court granted defendant's cross-motion for
reconsideration and granted defendant summary judgment. In a second order,
the trial court denied plaintiff's motion for reconsideration.
A-1679-23
4
Plaintiff appeals both orders, arguing before us that the trial court
misapplied N.J.S.A. 39:6A-4 and its related substantial nexus jurisprudence.
II.
We use an abuse of discretion standard to review a trial court's
reconsideration orders. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582
(2021) (citing Kornbleuth v. Westover, 241 N.J. 289, 301 (2020)).
In reviewing a trial court's decision to grant or deny a motion for summary
judgment de novo, appellate courts apply the same standard governing the trial
courts. Boyle v. Huff, 257 N.J. 468, 477 (2024) (citing Samolyk v. Berthe, 251
N.J. 73, 78 (2022)). Under these standards, courts should grant a motion for
summary judgment if they find that "there is no genuine issue as to any material
fact challenged and that the moving party is entitled to a judgment or order as a
matter of law." R. 4:46–2(c). "When no issue of fact exists, and only a question
of law remains, [appellate courts] afford[] no special deference to the legal
determinations of the trial court." Boyle, 257 N.J. at 477 (quoting Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016)).
We review matters of statutory interpretation de novo. Verry v. Franklin
Fire Dist. No. 1, 230 N.J. 285, 294 (2017). Courts "look first to the plain
A-1679-23
5
language of the statute, seeking further guidance only to the extent that the
Legislature's intent cannot be derived from the words that it has chosen."
McGovern v. Rutgers, 211 N.J. 94, 108 (2012).
III.
Plaintiff argues that "the [t]rial [c]ourt failed to apply the plain language
of N.J.S.A. 39:6A-4 and well-established law setting forth the 'substantial nexus'
test." We look to the relevant section of the statute, which states:
[E]very standard automobile liability insurance policy
issued or renewed . . . shall contain personal injury
protection benefits for the payment of benefits without
regard to negligence, liability or fault of any kind, to
the named insured and members of his family residing
in his household who sustain bodily injury as a result
of an accident while occupying, entering into, alighting
from or using an automobile, or as a pedestrian, caused
by an automobile or by an object propelled by or from
an automobile, and to other persons sustaining bodily
injury while occupying, entering into, alighting from or
using the automobile of the named insured, with
permission of the named insured.
Section 4 of New Jersey's Automobile Insurance Cost Reduction Act
("AICRA")1 requires insurers "to provide PIP benefits to their policyholders or
families for injuries sustained 'as a result of an accident while occupying,
entering into, alighting from or using an automobile.'" Svenson v. Nat'l
1
N.J.S.A. 39:6A–1.1 to –35.
A-1679-23
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Consumer Ins. Co., 322 N.J. Super. 410, 413 (App. Div. 1999). Our Supreme
Court has held that AICRA "afford[s] the 'broadest possible coverage'" to
"ensur[e] that persons injured in automobile accidents will receive medical care
and that the bills for that care will be promptly paid." Bardis v. First Trenton
Ins. Co., 199 N.J. 265, 278 (2009). Therefore, "courts must favor the insured
and find coverage if possible." Lindstrom by Lindstrom v. Hanover Ins. Co. ex
rel. N.J. Auto. Full Ins. Underwriting Ass'n, 138 N.J. 242, 249 (1994).
To determine whether an insured party is covered by N.J.S.A. 39:6A-4,
we must decide "whether the facts reveal a substantial nexus between [an]
accident and the use of an automobile . . . ." Ibid.
"Under PIP claims, 'whether an event constitutes an 'accident' must be
determined from the perspective of the victim.'" Ibid. (quoting Pa. Nat'l Mut.
Cas. Ins. Co. v. Estate of Miller, 185 N.J. Super. 183, 187-88 (App. Div. 1982)).
'Accidents' in the context of N.J.S.A. 39:6A-4 include negligent and intentional
acts that produce an injury. Lindstrom, 138 N.J. at 250.
When determining whether a substantial nexus between an accident and
the use of an automobile exists, we ask:
[W]hether the negligent act which caused the injury,
although not foreseen or expected, was in the
contemplation of the parties to the insurance contract a
natural and reasonable incident or consequence of the
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use of the automobile, and thus a risk against which
they might reasonably expect those insured under the
policy would be protected.
[Ibid. (quoting Westchester Fire Ins. Co. v. Cont'l Ins.
Cos., 126 N.J. Super. 29, 38 (App. Div. 1973)).]
To perform this analysis, we look to the foreseeability of the injury based
on the use of the automobile. We have included the intentional torts of third
parties in that zone of foreseeability. See Stevenson v. State Farm Indem. Co.,
311 N.J. Super. 363, 375 (App. Div. 1998); Lindstrom, 138 N.J. at 252; Smaul
v. Irvington Gen. Hosp., 108 N.J. 474, 478 (1987).2
We note, however, "[t]he substantial nexus test is not without limits."
Svenson, 322 N.J. Super. at 415. "Accidents that do not arise out of the use of
an automobile or are not of the type that are within the contemplation of the
parties do not fulfill the [substantial nexus] test's requirements." Lindstrom, 138
N.J. at 251. See Vasil v. Zullo, 238 N.J. Super. 572, 577 (App. Div. 1990);
Kordell v. Allstate Ins. Co., 230 N.J. Super. 505, 509 (App. Div. 1989);
2
The "substantial nexus" test does not require a 'causal connection' between the
use of the automobile and the accident. See Svenson, 322 N.J. Super. at 413;
Smaul, 108 N.J. at 477 (quoting Westchester Fire Ins. Co., 126 N.J. Super. at
37) ("[An] insurance policy [under N.J.S.A. 39:6A-4] does not require that the
injury be directly or proximately caused by the automobile itself or by its motion
or operation.").
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Uzcatequi-Gaymon v. New Jersey Mfrs. Ins. Co., 193 N.J. Super. 71, 75 (App.
Div. 1984); Foss v. Estate of Cignarella, 196 N.J. Super. 378 (Law Div. 1984).
We begin by noting that there is no dispute on the material facts.
Therefore, our analysis turns solely on the legal question of whether, on this
record, plaintiff is entitled to PIP benefits under N.J.S.A. 39:6A-4 and the terms
of the insurance contract she purchased from defendant. R. 4:46–2(c). That
question requires us to consider whether a substantial nexus existed between the
accident plaintiff suffered and her use of the car. Lindstrom, 138 N.J. at 250.
Plaintiff suffered injuries when the hot tea spilled and burned her as it was
passed into her car. When we apply these uncontroverted facts to the plain
language of N.J.S.A. 39:6A-4, the answer to the legal question before us reveals
itself. Plaintiff obviously occupied her vehicle, as the record shows she was
sitting in the driver's seat at the time she was injured. Plaintiff clearly used her
vehicle to acquire her hot beverage from a business that expressly offers
customers the option to pick up their food and drinks while remaining in their
cars.3 Because plaintiff's injuries were a "natural and reasonable . . .
3
Drive-throughs are commonly used in the United States. See The Quantum
Pulse, QSR Drive-Thru Sector (Apr. 2021), www.qreadvisors.com/wp-
content/uploads/2021/04/Tenant-Spotlight-QSR-Drive-Thru-2.pdf ("Americans
visit drive-thru lanes about 6 billion times each year according to some
statistics.").
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consequence" of the use of her car, it follows that a substantial nexus existed
between the burn incident and her vehicle use. Westchester Fire Ins. Co., 126
N.J. Super. at 38.
We disagree with defendant's argument that plaintiff is not entitled to PIP
benefits because her vehicle was merely the location of her injuries and not a
contributory factor. We have rejected this approach. The substantial nexus test
"does not require that the injury be directly or proximately caused by the
automobile itself or by its motion or operation." Smaul, 108 N.J. at 477 (quoting
Westchester Fire Ins. Co., 126 N.J. Super. at 37). See Svenson, 322 N.J. Super.
at 416; Ohio Cas. Grp. of Ins. Cos. v. Gray, 323 N.J. Super. 338, 341 (App. Div.
1999); Clyburn v. Liberty Mut. Ins. Co., 214 N.J. Super. 644, 648-49 (App. Div.
1987).
We conclude that plaintiff was covered under her insurance policy's PIP
terms. We reverse the orders granting defendant reconsideration and summary
judgment. We also reverse the orders denying reconsideration and summary
judgment to plaintiff. We remand to the trial court to enter judgment for plaintiff
as a matter of law on the coverage question, and for further proceedings
consistent with this opinion. R. 4:46–2(c).
Reversed.
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