Falling Down Is Not a Motor Vehicle Accident

Nexus With Vehicle and Injury Required

Uninsured motorist (UM) coverage and Personal Insurance Protection (PIP) coverage is designed to protect an insured person against the risk of injury by an uninsured person. If an uninsured operator of an automobile causes injury to a person who has UM or PIP coverage the person with UM or PIP coverage can treat his insurer as if it was the insurer of the uninsured motorist. The coverage, of course, is limited to an accident that has a direct nexus to a vehicle.

In Gino Sulpizi v. LM General Insurance Company, Docket NO. A-4255-16T4, Superior Court Of New Jersey Appellate Division (April 4, 2018) Plaintiff Gino Sulpizi appealed after his insurer obtained a summary judgment of no coverage.


Plaintiff, a Pennsylvania resident, primarily resides in Philadelphia. He owns a vehicle that has a Pennsylvania automobile insurance policy provided by LM Insurance. Plaintiff also owns a vacation home in Brigantine, New Jersey.

On June 30, 2015, plaintiff was at his vacation home in New Jersey when he decided to mail a letter. He drove his car from his home and parked across the street from a mailbox. Plaintiff exited his vehicle and began to walk across the street towards the mailbox. When he was halfway across the opposite lane, he saw a pickup truck approaching him and he “scurried over” to the side of the road. Plaintiff then tripped on the curb and fell near the mailbox. He alleges he suffered personal injuries as a result of the fall.

His Pennsylvania automobile policy issued by LM Insurance provided $5000 in PIP medical benefit coverage. Plaintiff submitted a PIP claim to LM Insurance for benefits exceeding $5000, contending he was entitled to additional coverage under the Deemer statute that makes an out of state policy a New Jersey policy if incident occurs in New Jersey. LM Insurance denied the claim because plaintiff was injured as a pedestrian and not while using his vehicle.

Thereafter, plaintiff filed a declaratory judgment action seeking $250,000 in New Jersey standard PIP benefits under the Deemer statute. On cross-motions for summary judgment, the trial court granted summary judgment to LM Insurance and denied plaintiff’s request for summary judgment.


The Deemer statute generally requires an insurer, authorized to do business in New Jersey, to provide PIP coverage for policies sold outside of New Jersey when the insured motor vehicle is “used or operated” in New Jersey.

The Deemer statute provides that out-of-state policies within its ambit are automatically construed as New Jersey policies when the covered vehicle is involved in a New Jersey accident. Specifically, the question is whether the Deemer statute requires coverage for a claim involving a pedestrian injured after parking his or her car and while walking across the street.

After reviewing the plain language of the statute and the case law discussing the terms “use” and “operation[,]” the court noted that the Deemer statute demanded a “‘substantial nexus’ between that out-of-state vehicle and the accident for which benefits are sought.

The appellate court affirmed the order granting summary judgment in favor of LM Insurance. Plaintiff never came into contact with the truck. Instead, he was injured when he moved out of the way, tripped, and fell. Thus, there was no nexus between plaintiff’s use or operation of his vehicle and his injuries.


When a person is injured it is natural to seek payment from whoever is responsible for the injury. Mr. Sulpizi attempted to put the blame on the person driving the truck he scurried away from while crossing the street. He never came in contact with the vehicle and tripped over the curb. Being clumsy after leaving a car is not an auto insurance loss.


© 2018 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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