Bartels v. Romano

• Decision Date: 26 October 1979
• Citation: 171 N.J.Super. 23,407 A.2d 1248
• Parties: Kathryn BARTELS, an infant by her Guardian ad Litem Donald J. Bartels, Michael Bartels, an infant by his Guardian ad Litem Donald J. Bartels, Donald J. Bartels and Maureen Bartels, Individually, Plaintiffs, v. Charles ROMANO and Sue Ann Romano, Defendants and Third-Party Plaintiffs-Respondents, v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Third-Party Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 23

171 N.J.Super. 23

407 A.2d 1248

Kathryn BARTELS, an infant by her Guardian ad Litem Donald

J. Bartels, Michael Bartels, an infant by his Guardian ad

Litem Donald J. Bartels, Donald J. Bartels and Maureen

Bartels, Individually, Plaintiffs, v. Charles ROMANO and Sue Ann Romano, Defendants and Third-Party Plaintiffs-Respondents, v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY, Third-Party

Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 2, 1979.

Decided Oct. 26, 1979.

George W. Connell, Newark, for third-party-defendant-appellant (Connell, Foley & Geiser, Newark, attorneys; Richard D. Catenacci, Newark, of counsel and on the brief).

Robert A. Sachs, Holmdel, for defendants and third-party-plaintiffs-respondents (Sachs & Sachs, Holmdel, attorneys).

Before Judges SEIDMAN, MICHELS and DEVINE.

The opinion of the court was delivered by

DEVINE, J. A. D.

By leave granted, third-party defendant, New Jersey Manufacturers Insurance Company (NJM) appeals from a summary judgment of the trial court ruling that it provide coverage, under a homeowner's policy, to defendants Charles and Sue Ann Romano in a pending negligence action.

It appears that the vehicle was parked in defendants' driveway and the Romano children were occupying it while awaiting their mother. In some manner the car was caused to roll backward. It struck the infant plaintiffs Kathryn and Michael Bartels, who were playing in the driveway, causing personal injuries.

At the time of the accident the Romanos were insured by Travelers Insurance Company (Travelers) under an automobile liability policy with limits of $100,000, and by NJM under a homeowner's policy with limits of $25,000.

The injured minors and their parents filed suit against the Romanos. The complaint, as amended, was couched in five counts. The first and second counts charged defendants with negligent maintenance, operation and control of their motor vehicle; the third and fifth counts charged that defendants "so carelessly and negligently supervised or failed to supervise their infant children and other children under their care, custody and control so as to permit Such children to occupy and operate the motor vehicle which occupation of said motor vehicle caused said vehicle to collide with infant plaintiff . . . ." (Emphasis supplied.)

Through counsel assigned to the defense of the suit by Travelers, defendants filed a third-party complaint against NJM seeking an adjudication that the allegations of the amended complaint fell within the coverage provided by the homeowner's policy. On cross-motions for summary judgment the trial judge held that NJM was to provide exclusive coverage for the allegations set forth in the third and fifth counts; Travelers was to provide exclusive coverage for the allegations of the first and second counts, and coverage of the fourth count, seeking a Per quod recovery only, was to abide the trial. We disagree with that portion of the judgment referable to the third and fifth counts and reverse.

The automobile policy obligated Travelers to pay damages for injury " arising out of the ownership, maintenance or use of the owned automobile."

The allegations of the third and fifth counts clearly implicate the "ownership, maintenance or use" provisions of Travelers policy. The NJM policy contains an exclusion:

This policy does not apply:

a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:

(2) any motor vehicle owned or operated by . . . any insured . . . .

In our opinion the case is controlled by the rationale of Westchester Fire Ins. Co. v. Continental Ins. Co., 126 N.J.Super. 29, 312 A.2d 664 (App.Div.1973), aff'd o. b. 65 N.J. 152, 319 A.2d 732. In that case an injury occurred when a passenger threw a stick out of the back window of the car. As in this case, the court was confronted with a coverage conflict involving automobile and homeowner's policies. Initially, the court posed the inquiry whether the injury sustained arose out of the use of the automobile, and responded:

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. See 7 Am.Jur.2d, § 82 at 387 (1963). Whether the requisite connection or degree of relationship exists depends upon the circumstances of the...