American Cas. Co. v. Lattanzio

• Decision Date: 07 February 1963
• Docket Number: No. C--1635,C--1635
• Parties: AMERICAN CASUALTY COMPANY, a corporation, Plaintiff, v. Deanna LATTANZIO, Benjamin G. Lattanzio, Ann Lattanzio, Louis Matarangolo, an infant by his guardian ad litem, Lillian Matarangolo, and Lillian Matarangolo individually, and Cornelius H. Grondin, Sr., and Cornelius H. Grondin, Jr., individually and partners, t/a Grondin Detective Agency, Defendants.
• Court: New Jersey Superior Court

Page 404

78 N.J.Super. 404

188 A.2d 637

AMERICAN CASUALTY COMPANY, a corporation, Plaintiff, v. Deanna LATTANZIO, Benjamin G. Lattanzio, Ann Lattanzio, Louis Matarangolo, an infant by his guardian ad litem, Lillian Matarangolo, and Lillian Matarangolo individually, and Cornelius H. Grondin, Sr., and Cornelius H. Grondin,

Jr., individually and partners, t/a Grondin Detective

Agency, Defendants.

No. C--1635.

Superior Court of New Jersey

Chancery Division.

Feb. 7, 1963.

Kristeller, Zucker, Lowenstein & Cohen, Newark, attorneys for plaintiff. at Wilentz, Goldman, Spitzer & Sills, Perth Amboy, attorneys for defendants Deanna Lattanzio, Benjamin C. Lattanzio and Ann Lattanzio.

Seaman & Williams, Perth Amboy, attorneys for defendant Matarangolo

Strong & Strong, New Brunswick, attorneys for defendant Grondin.

LABRECQUE, J.S.C.

In this case the plaintiff American Casualty Company seeks a declaratory judgment that a policy of insurance issued by it to Deanna Doros, now Deanna Lattanzio, does not insure Benjamin G. Lattanzio, her husband, in connection with a certain accident in which the defendant Louis Matarangolo, an infant, sustained injuries on July 25 1960. The defendants Grondin are made parties as the asserted employers of Lattanzio at the time of the happening of the accident in question. The defendant Ann Lattanzio is made a party as the owner, and defendant Benjamin G. Lattanzio as the driver, of the vehicle involved in the accident.

The policy in question, which was denominated a family automobile policy, was originally issued on July 17, 1959 and was renewed on July 17, 1960 for an additional year. On May 28, 1960 Deanna Doros, the named assured, married Benjamin G. Lattanzio. By the terms of the policy the words 'named assured' included her 'spouse if a resident of the same household.' The policy covered the operation of both owned and non-owned automobiles. A non-owned automobile was defined in the policy as: 'An automobile or trailer not owned by or furnished for the regular use of either the named assured or any relative, other than a temporary substitute automobile.' The policy specifically covered a 1951 Ford owned by Deanna Lattanzio.

On the day of the happening of the accident Benjamin G. Lattanzio, while operating a 1957 Lincoln car owned by his mother, was involved in a collision with the infant defendant Matarangolo, a pedestrian. Suit was instituted by Lillian Matarangolo, as guardian Ad litem and individually, against Lattanzio, his mother Ann Lattanzio, and his part-time employers, the Grondins. Following service upon the Lattanzios in February 1962, the plaintiff denied coverage and filed the present suit. Its denial of coverage is premised upon its assertion that the Lincoln was an automobile 'furnished for the regular use' of Benjamin by his mother Ann, citing Farm Bureau Mutual Automobile Ins. Co. v. Marr, 128 F.Supp. 67 (D.N.J.1955); Rodenkirk, for Use of Deitenbach v. State Farm Mut. Automobile Ins. Co., 325 Ill.App. 421, 60 N.E.2d 269 (App.Ct.1945); and the dissenting opinion in Travelers Indemnity Company v. Hyde, 232 Ark. 1020, 342 S.W.2d 295, 298 (Sup.Ct.1961).

From the testimony and exhibits before the court it appears, and the court finds, that prior to his marriage in May 1960 Benjamin G. Lattanzio resided with his mother in Woodbridge Township and was employed by the Post Office Department. He was also employed on a part-time basis by the Grondin Detective Agency. His brother Daniel resided in the same household and also was a part-time employed of Grondin.

The Lincoln automobile which Benjamin was driving at the time of the accident had been purchased by his mother, Ann Lattanzio, prior to the time that he began work for the detective agency. There were two other vehicles in the household, a Ford owned by Daniel and a truck owned by Mr. Lattanzio, the husband of Ann. The Lincoln had been used on occasion by Benjamin before he secured part-time employment with the agency. This use was generally granted upon a request made of the mother, who retained possession of the keys.

After having been accepted as a trainee by the detective agency, Benjamin continued to be allowed the occasional use of the car. While still a trainee he purchased a two-way radio with the probable intention of using it in connection with some phase of the detective business. With the mother's permission it was installed in her Lincoln.

After the marriage Benjamin and his wife moved to their own apartment. Thereafter, when he had occasion to use an automobile, he used her 1951 Ford, which was insured by the policy in question. The coverage of the policy was extended to him as husband of the named assured, Deanna.

On the evening of the accident he had an opportunity to put in several hours ast his part-time job. By the time he received the call, his wife had already taken the Ford. He thereupon called his mother and was given permission to take the Lincoln. It was while returning home several hours later that he met with the accident which gave rise to the present suit.

In Farm Bureau Mutual Automobile Ins. Co. v. Marr, supra, cited by the plaintiff, an insurer was granted a declaratory judgment of nonliability on a policy which it insured to the defendant. The policy extended coverage to a station wagon owned by the insured and also furnished additional coverage to the insured when driving other automobiles. As in the present case, the policy contained an exclusionary clause which provided that the additional coverage did not apply 'to any automobile * * * furnished for regular use to the Named Insured * * *.' The court found that the named insured, a federal agent, had several cars at his disposal in connection with his employment from which he was permitted to select any one for his use. On the occasion in question the insured was driving one of these cars to his home in order to enable him to respond to any night calls which he might receive. En route, an accident occurred. The case is clearly distinguishable on its facts and the result reached is in no wise controlling in the instant case. See also Farm Bureau Mut. Automobile Ins. Co. v. Boecher, 48 N.E.2d 895 (Ohio Ct.App.1942).

Rodenkirk, for Use of Deitenbach v. State Farm Mut. Automobile Ins. Co., supra, upon which plaintiff also relies, was a case of first impression in Illinois. There a similar exclusionary clause was before the court. The car which the insured had been driving at the time of the accident belonged to a soldier who, prior to his entrance into the service, had entrusted it to his financee, the insured's daughter. Specifically, the court found that he had told her and the insured to use it 'as they saw fit.' (60 N.E.2d, at p. 274). The court, in holding that the insured's use of the car was outside the limits of his insurance coverage, cited Farm Bureau Mut. Automobile Ins. Co. v. Boecher, supra, and noted that its decision was not controlled by the number of times the defendant had used the car but rather depended upon whether the car was furnished for his regular use.

It is a well settled general rule that if an insurance contract is so drawn as to be ambiguous or to require interpretation, any fair doubt as to the meaning of the terms should be resolved against the company which prepared the policy. If the language used is fairly susceptible of two different constructions, one favorable to the insurer, and the other favorable to the insured, 'the interpretation sustaining coverage must be applied.' Mazzilli v. Accident & Casualty Ins. Co. of Winterthur, 35 N.J. 1, 7, 170 A.2d 800, 803, 804, (1961). In considering the construction of inclusory and exclusionary clauses in that case, the Supreme Court stated:

'* * * where the policy provision under examination relates to the inclusion of persons other than the named insured within the protection afforded, a broad and liberal view is taken of the coverage extended. But, if the clause in question is one of exclusion or exception, designed to limit the protection, a strict interpretation is applied.' (at p. 8, 170 A.2d at p. 804)

See also, Hunt v. Hospital Service Plan of New Jersey, 33 N.J. 98, 102, 162 A.2d...