                                NOT FOR PUBLICATION WITHOUT THE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-2707-17T3

JEFFREY A. WICHOT, an Adjudged
Incapacitated Person, by BARBARA
A. WICHOT and GREGORY P.
WICHOT, Court Appointed
Co-Guardians of the Person and
Property for JEFFREY A. WICHOT,

          Plaintiff-Appellant,

v.

ALLSTATE NEW JERSEY PROPERTY
& CASUALTY INSURANCE COMPANY,

          Defendant-Respondent,

v.

ALLSTATE NEW JERSEY PROPERTY
& CASUALTY INSURANCE COMPANY,

          Defendant/Third- Party Plaintiff,

v.

BRANDON T. BILLARD, THOMAS J.
RUBERTONE, JAMES RUBERTONE,
SHARON RUBERTONE, JARRED
TESCHNER, RONALD J. TESCHNER,
KELLY TESCHNER, CHEYENNE
CONA, and SHARON A. CONA,

     Third-Party Defendants.
_______________________________

            Argued March 18, 2019 – Decided April 3, 2019

            Before Judges Fasciale and Gooden Brown.

            On appeal from Superior Court of New Jersey, Law
            Division, Passaic County, Docket No. L-0578-16.

            Demetrios K. Stratis argued the cause for appellant
            (Ruta, Soulios & Stratis, LLP, attorneys; Demetrios K.
            Stratis, on the briefs).

            Frederic J. Regenye argued the cause for respondent
            (Law Office of Kenneth N. Lipstein, attorneys; Frederic
            J. Regenye, of counsel and on the brief).

PER CURIAM

      Jeffrey A. Wichot (plaintiff) appeals from a January 10, 2018 order

granting summary judgment in favor of Allstate New Jersey Property & Casualty

Insurance Company (defendant). We reverse and remand because there are

disputed issues of material fact.

      Plaintiff was insured under an automobile liability insurance policy issued

by defendant, which provided plaintiff with uninsured motorist (UM) coverage.

It stated that if the insured and insurer do not agree on the insured's



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                                         2
             right to receive damages or on the amount, then upon
             mutual consent, the disagreement will be settled by
             arbitration. . . . If the insured person and we do not
             agree to arbitrate, then the disagreement will be
             resolved in a court of competent jurisdiction. The
             arbitrators will not have the power to decide any dispute
             regarding the nature and amount of coverage provided
             by the policy or claims for damages outside the terms
             of the policy, including, but not limited to, claims for
             bad faith, fraud, misrepresentation, punitive or
             exemplary damages, attorney fees and/or interest.

      On April 9, 2012, plaintiff was involved in an incident (the incident)

wherein he sustained injuries for which he sought UM benefits from defendant.

He was allegedly kidnapped by a friend and two other individuals, who held

plaintiff at gunpoint and drove plaintiff in his own car to banks in order to

withdraw money from his accounts. In the course of the incident, the three

assailants repeatedly beat plaintiff, throwing him against the car and hitting him

with the gun.    The three assailants were not insured, so plaintiff notified

defendant of his UM claim. Defendant rejected the claim, which necessitated

the filing of this complaint. In the pleadings, the parties included a demand for

trial by jury.

      Defendant moved for summary judgment in July 2017. Although the

parties had an arbitration proceeding scheduled, the judge made credibility




                                                                          A-2707-17T3
                                        3
findings, findings of fact, and granted summary judgment in favor of defendant

on January 10, 2018.

                                        I.

      N.J.S.A. 17:28-1.1(a)(2) provides that,

            no motor vehicle liability policy or renewal . . . insuring
            against loss resulting from liability imposed by law for
            bodily injury or death, sustained by any person arising
            out of the ownership, maintenance or use of a motor
            vehicle, shall be issued in this State with respect to any
            motor vehicle registered or principally garaged in this
            State unless it includes coverage in limits for bodily
            injury or death as follows:

                  ....

            an amount or limit . . . for payment of all or part of the
            sums which the insured or his legal representative shall
            be legally entitled to recover as damages from the
            operator or owner of an uninsured motor vehicle, or hit
            and run motor vehicle . . . because of bodily injury,
            sickness or disease, including death resulting
            therefrom, sustained by the insured, caused by accident
            and arising out of the ownership, maintenance,
            operation [1] or use of such uninsured or hit and run
            motor vehicle[.]

N.J.S.A. 17:28-1.1(e)(2) defines an "uninsured motor vehicle" as

            (a) a motor vehicle with respect to the ownership,
            operation, maintenance, or use of which there is no

1
  The term "operator" is not defined in the UM statute, but in Title 39, the
Legislature defined operator as "a person who is in actual physical control of a
vehicle[.]" N.J.S.A. 39:1-1.
                                                                          A-2707-17T3
                                        4
            bodily injury liability insurance or bond applicable at
            the time of the accident;

            (b) a motor vehicle with respect to the ownership,
            operation, maintenance, or use of which there is bodily
            injury liability insurance in existence but the liability
            insurer denies coverage or is unable to make payment
            with respect to the legal liability of its insured because
            the insurer has become insolvent or bankrupt, or the
            Commissioner of Banking and Insurance has
            undertaken control of the insurer for the purpose of
            liquidation;

            (c) a hit and run motor vehicle . . . ; or

            (d) an automobile covered by a special automobile
            insurance policy . . . .

"[A]n insured who seeks UM benefits must satisfy a two-prong test: first, the

insured must demonstrate that his or her injuries were caused by an 'accident;'

and, second, the insured must prove that the accident arose from the ownership,

maintenance, operation or use of an uninsured vehicle." Livsey v. Mercury Ins.

Grp., 197 N.J. 522, 531 (2009) (emphasis added). 2         "[P]olicies should be



2
  Ordinarily, "the accidental nature of an occurrence is determined by analyzing
whether the alleged wrongdoer intended or expected to cause an injury."
Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 183 (1992). In making that
determination, we look to "the actor's subjective intent to cause injury." Id. at
184. Thus, "[i]t is the intent to injure, rather than the intent to commit the act
that is important." Merrimack Mut. Fire Ins. Co. v. Coppola, 299 N.J. Super.
219, 227 (App. Div. 1997). On this record, the three assailants arguably
intended to obtain money from plaintiff's bank accounts.
                                                                          A-2707-17T3
                                         5
construed liberally in [the insured's] favor to the end that coverage is aff orded

to the full extent that any fair interpretation will allow." Progressive Cas. Ins.

Co. v. Hurley, 166 N.J. 260, 273 (2001) (second alteration in original) (quoting

Kievit v. Loyal Protective Life Ins. Co., 34 N.J. 475, 482 (1961)).

      "UM coverage requires an injury 'arising out of the ownership,

maintenance, or use' of the uninsured vehicle." Cerullo v. Allstate Ins. Co., 236

N.J. Super. 372, 375 (App. Div. 1989). "Benefits are available only if the

covered party . . . establishes that he is 'legally entitled to recover damages from

the operator or owner' of the uninsured or hit and run vehicle." Ibid. UM

coverage is mandated as "a substitute for the liability insurance which should

have been covering the uninsured vehicle." Ibid. Where an individual sustains

injuries arising out of the operation of an otherwise insured vehicle, "the

operation of an insured vehicle under a factual scenario amounting to 'theft, or

the like' permits an insurer to disclaim liability coverage . . . [and] renders the

vehicle 'uninsured' within the meaning of the UM statute." Longo v. Market

Transition Facility of New Jersey, 326 N.J. Super. 316, 321 (App. Div. 1999).

      In Grabowski v. Liberty Mutual Insurance Co., 345 N.J. Super. 241, 243

(App. Div. 2001), the plaintiff was injured in the course of a carjacking when

she was forced out of a moving vehicle. We stated that "we must evaluate [the]


                                                                            A-2707-17T3
                                         6
plaintiff's carjacking from the perspective of the carjacker, and determine from

his viewpoint whether the injuries sustained by plaintiff were intentionally

caused; if so, UM coverage is not available." Id. at 246. Thus, we stated that

"because the carjacker did not intend to harm plaintiff, plaintiff's injuries

resulted from an accident." Ibid. We found this conclusion to be "consistent

with the law developed in the context of liability coverage for acts said to come

within policy exclusions for injury caused intentionally." Ibid.

      We further discussed whether the plaintiff's injuries arose out of the "use"

of an automobile, and determined that there was a "substantial nexus" between

the automobile and the injuries. Id. at 247. Therefore, we concluded

            that the carjacker's taking control of [the] plaintiff's
            vehicle rendered the vehicle uninsured for UM
            coverage purposes, that [the] plaintiff's injuries were
            sustained in an accident, and that there was a sufficient
            nexus between the automobile and the injuries; all of
            which lead to the conclusion that [the defendant]'s UM
            coverage was applicable in this case.

            [Ibid.]

      "[T]he [UM] statute was designed to provide maximum remedial

protection to the innocent victims of financially irresponsible motorists and to

reduce the drain on the financially-troubled Unsatisfied Claim and Judgment

Fund." Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 503-04 (1987).


                                                                          A-2707-17T3
                                        7
"N.J.S.A. 17:28-1.1 must be construed liberally to foster the protection UM

affords automobile accident victims." Rider Ins. Co. v. First Trenton Cos., 354

N.J. Super. 491, 497-98 (App. Div. 2002). "In construing a statute, the goal of

the court is to ascertain the intent of the Legislature with reasonable certainty."

Longo, 326 N.J. Super. at 323.

      We discussed the role of UM coverage in a case in which the plaintiff was

fatally stabbed by the occupants of an unknown vehicle, and stated,

            [i]f the perpetrators of the assault had been
            apprehended and the operation of the [unknown
            vehicle] was covered by insurance, the standard policy
            exclusion for "intentional acts" would have precluded
            [the] plaintiff from obtaining recovery from the insurer
            of the [unknown vehicle]. Since UM coverage is
            designed essentially as a substitute for the insurance
            coverage which the owner of an uninsured or hit and
            run vehicle would have been required to maintain, UM
            coverage does not extend to the homicide committed by
            one of the occupants of the [unknown vehicle].

            [Vasil v. Zullo, 238 N.J. Super. 572, 579 (App. Div.
            1990).]

In Longo, we stated that,

            [a]lmost weekly, our newspapers relate an event similar
            to the following: a woman entering her vehicle in a
            darkened parking lot is accosted by a stranger intent on
            stealing the vehicle. The thief pushes the woman into
            the vehicle and drives off with the victim as a
            passenger. The thief then crashes the vehicle into an
            object and runs from the scene, leaving the victim

                                                                           A-2707-17T3
                                        8
            seriously injured. Could the Legislature possibly have
            intended the insured victim in such circumstances to be
            left without recourse? We think not.

            [326 N.J. Super. at 322-23.]

      In Shaw v. City of Jersey City, 174 N.J. 567, 578 (2002), our Supreme

Court held that UM "coverage extends to injuries caused by the intentional acts

of a tortfeasor[.]" In that case, the plaintiff was struck by the driver of a stolen

vehicle. Id. at 570. The vehicle was insured, but the insurer declined coverage

because the vehicle was stolen and the insured was not the driver when the

incident occurred. Ibid. The plaintiff had UM coverage under his personal

policy with his insurer. Ibid. The plaintiff's policy required that his insurer pay

damages for "[b]odily injury sustained by an insured and caused by an

accident[.]" Id. at 571. The Court concluded "that when [the] plaintiff was

struck by the stolen [vehicle] an 'accident' occurred within the meaning of his

[UM] policy." Id. at 578.

      Here, in the judge's order granting summary judgment, he wrote that,

            it was the gun which was the instrumentality of the
            kidnapping and robbery, and it was the gun, coupled
            with the threats against [p]laintiff's life and his concern
            for the safety of his family that caused any post-
            traumatic stress. There was no substantial nexus
            between the post-traumatic stress injury (the only
            injury alleged and claimed) and the vehicle to warrant
            [UM] benefit.

                                                                            A-2707-17T3
                                         9
But extending coverage to insureds who sustain injuries during the course of an

attack where there are injuries caused by an accident and the accident "arose

from the ownership, maintenance, operation or use of an uninsured vehicle ,"

Livsey, 197 N.J. at 531, would not violate the UM statute's legislative purpose

or previous case law.

      Giving plaintiff the benefit of all reasonable inferences, as we must at this

stage, plaintiff was kidnapped by being placed in the vehicle and locked inside.

The assailants then drove erratically and treacherously with plaintiff inside the

vehicle. After removing plaintiff from the vehicle, the attackers threw plaintiff

against the car. Finally, at the conclusion of the attack, the assailant who was

driving crashed the car into a wall and it started to smoke. At that point, plaintiff

was able to escape from the car and seek assistance. Without the automobile,

this incident arguably never could have happened, and the three assailants could

not have held plaintiff prisoner in the same fashion that they did.

                                         II.

      When reviewing an order granting summary judgment, we apply "the

same standard governing the trial court." Oyola v. Xing Lan Liu, 431 N.J. Super.

493, 497 (App. Div. 2013). A court should grant summary judgment when the

record reveals "no genuine issue as to any material fact" and "the moving party


                                                                             A-2707-17T3
                                        10
is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We owe no

special deference to the motion judge's conclusions on issues of law. Manalapan

Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      We consider the facts in a light most favorable to the non-moving party.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "[U]nder Rule

4:46-2, when deciding summary judgment motions trial courts are required to

engage in the same type of evaluation, analysis or sifting of evidential materials

as required by Rule 4:37-2(b) in light of the burden of persuasion that applies if

the matter goes to trial." Id. at 539-40.

            The judge's function is not himself . . . to weigh the
            evidence and determine the truth of the matter but to
            determine whether there is a genuine issue for trial.
            Credibility determinations will continue to be made by
            a jury and not the judge. If there exists a single,
            unavoidable resolution of the alleged disputed issue of
            fact, that issue should be considered insufficient to
            constitute a genuine issue of material fact for purposes
            of Rule 4:46-2.

            [Id. at 540 (emphasis added) (internal citations and
            quotation marks omitted).]

      Generally, questions of proximate and intervening cause are left to the

jury for its factual determination. L.E. v. Plainfield Pub. Sch. Dist., 456 N.J.

Super. 336, 350 (App. Div. 2018). "[I]f the fact finder can reasonably draw or

reject an inference or if conflicting inferences may be drawn from a given set of

                                                                          A-2707-17T3
                                       11
facts, the issue is one of fact, and summary judgment is inappropriate." Norman

v. Selective Ins. Co., 249 N.J. Super. 104, 109 (App. Div. 1991).

      Both the UM statute, and the cases interpreting it, hold that there must be

"a substantial nexus – that is, a substantial connection or link – between the

injury and the use of the vehicle in order for there to arise the o bligation to

provide coverage." Livsey, 197 N.J. at 533.

                  We consider that the phrase "arising out of" must
            be interpreted in a broad and comprehensive sense to
            mean "originating from" or "growing out of" the use of
            the automobile. So interpreted, there need be shown
            only a substantial nexus between the injury and the use
            of the vehicle in order for the obligation to provide
            coverage to arise. The inquiry should be whether 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 use of the
            automobile, and thus a risk against which they might
            reasonably expect those insured under the policy would
            be protected.

            [Westchester Fire Ins. Co. v. Continental Ins. Cos., 126
            N.J. Super. 29, 38 (App. Div. 1973) (emphasis added).]

      In addressing the role of the automobile in the attack, the judge stated that:

            The record clearly demonstrates that [p]laintiff was the
            unfortunate victim of a crime. The incident complained
            of was one of kidnapping, threats and assault. While it
            involved an automobile within which [p]laintiff was
            held during the attempted robbery, the vehicle itself
            was not the instrumentality of any documented injury.

                                                                            A-2707-17T3
                                       12
            The only effect that the crash of the vehicle had was to
            bring the criminal episode to an end. A review of case
            law interpreting the [UM] statute where criminal acts
            are involved will establish that this mater may not give
            rise to an [UM] claim as outside of the contemplation
            of the [UM] coverage.

      The question of whether there was a substantial nexus between the vehicle

and the injuries, however, is a disputed question of fact that cannot be resolved

summarily. Plaintiff was treated at the scene for "pain in his knee, neck and

back from the crash," and he contends that he suffered "severe personal injuries

after the vehicle he was traveling in slammed into a rock wall, causing him to

be violently thrown forward into the vehicle[']s back seat." He also said that he

"sustained bruising and severe pain from being repeatedly punched and pistol

whipped" and that he also suffered "emotional and psychological injuries."

Plaintiff was diagnosed with post-traumatic stress disorder (PTSD) as a result

of the incident. Plaintiff "has flashbacks . . . [that] come on whenever [plaintiff]

sees a white Jetta, the kind of car he had when the assault occurred," and he

"becomes psychologically distressed when he recalls or speaks about the assault

or sees something that reminds him of it, such as a white Jetta."

                                        III.

      Plaintiff introduced evidence from a treating psychiatrist, Dr. Burton

Weiss, addressing the purported substantial nexus between the vehicle and

                                                                            A-2707-17T3
                                        13
injuries. Dr. Weiss submitted a 2015 narrative report (the report), and a 2017

certification (the certification). In the report, Dr. Weiss stated that he evaluated

plaintiff about the events surrounding "his assault of April 9, 2012," and that

plaintiff was "the victim of a violent crime involving a pistol and motor vehicle."

He diagnosed plaintiff with PTSD "as the direct result of the assault of April 9,

2012."

      In the certification, Dr. Weiss explained his use of the term "assault" in

the report. He stated that,

            My use of that word was not intended to be limited to
            the physical touching by the assailants[,] but was
            intended to be all encompassing and intended to include
            all of the actions and events that happened to [plaintiff]
            that day[,] including and significantly, the use of the
            motor vehicle in the assailant's conduct.

He continued and explained that, "[t]he use of the motor vehicle was

instrumental in the actions of the assailants and the injury sustained by

[plaintiff]." He concluded that plaintiff has PTSD "as the direct result of the

assault of April 9, 2012. Assault was meant to include the operation of the motor

vehicle as used against [plaintiff] on that day."

      The judge stated that Dr. Weiss's certification "ha[d] no validity in the

eyes of the [c]ourt." The judge concluded that Dr. Weiss's "broadened opinion

[was] nothing more than an unfounded net opinion." The net opinion rule

                                                                            A-2707-17T3
                                        14
"forbids the admission into evidence of an expert's conclusions that are not

supported by factual evidence or other data." State v. Townsend, 186 N.J. 473,

494 (2006). The rule mandates that an expert provide "the why and wherefore

that supports the opinion, rather than a mere conclusion." Borough of Saddle

River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013) (internal quotation

marks omitted).

      Here, though, the certification was a "clarification" of the opinion he

previously expressed in his report. "The failure of an expert to give weight to a

factor thought important by an adverse party does not reduce his testimony to

an inadmissible net opinion if he otherwise offers sufficient reasons which

logically support his opinion." Rosenberg v. Tavorath, 352 N.J. Super. 385, 402

(App. Div. 2002). "[A]n expert witness is always subject to searching cross-

examination as to the basis of his opinion[.]" Glenpointe Assocs. v. Twp. of

Teaneck, 241 N.J. Super. 37, 54 (App. Div. 1990).          Dr. Weiss provided

"sufficient reasons which logically support his opinion" as to plaintiff's PTSD

diagnosis. Rosenberg, 352 N.J. Super. at 402. He sought to clarify why he

believed plaintiff suffered from a particular ailment and what caused this

condition. Moreover, Dr. Weiss would be subject to cross-examination as to the

basis of his diagnosis. See Glenpointe Assocs., 241 N.J. Super. at 54.


                                                                         A-2707-17T3
                                      15
                                       IV.

      As to plaintiff's certification, the judge stated that it "would have to be

considered nothing more than a sham affidavit."          He stated that "[w]hile

[p]laintiff argues in this sham affidavit that he was 'imprisoned and helpless[,]'

that situation did not arise from the use of a motor vehicle but rather from the

use or threatened use of a gun."

      The sham affidavit doctrine "refers to the trial court practice of

disregarding an offsetting affidavit that is submitted in opposition to a motion

for summary judgment when the affidavit contradicts the affiant's prior

deposition testimony." Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002). It

"calls for rejection of the affidavit where the contradiction is unexplained and

unqualified by the affiant. In such circumstances, the alleged factual issue in

dispute can be perceived as a sham, and as such it is not an impediment to a

grant of summary judgment." Ibid. "Sham facts should not subject a defendant

to the burden of a trial." Id. at 201. The rule "does not intrude on the function

of the jury because it does not require the trial [judge] to determine credibility,

or to determine the relative weight of conflicting evidence." Ibid.

      Here, plaintiff was never deposed so there is no prior testimony in the

same action. Additionally, there is no contradiction. "Courts should not reject


                                                                           A-2707-17T3
                                       16
alleged sham affidavits . . . where an affidavit does not contradict patently and

sharply the earlier deposition testimony[.]" Ibid. There was no "patent[] and

sharp[]" contradiction between plaintiff's certification and his earlier answers to

police investigators. Thus, it was improper for the judge to find that the affidavit

was one that set forth "[s]ham facts [that] should not subject a defendant to the

burden of a trial." Ibid. The sham affidavit doctrine "does not intrude on the

function of the jury because it does not require the trial court to determine

credibility, or to determine the relative weight of conflicting evidence." Ibid.

But yet, this is precisely what the judge did in determining that "[w]hile

[p]laintiff argues in this sham affidavit that he was 'imprisoned and helpless[,]'

that situation did not arise from the use of a motor vehicle but rather from the

use or threatened use of a gun."

      Reversed and remanded for further proceedings consistent with this

opinion. In fairness to the judge, since he had made credibility determinations

on the summary judgment motion, we direct that another judge handle the

remand proceedings. We do not retain jurisdiction.




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                                        17
