Cox v. Russell

• Citation: 842 A.2d 243,367 N.J. Super. 121
• Parties: Daniel COX, Plaintiff, v. Joseph P. RUSSELL and Daniel Garcia, Defendants. New Jersey Manufacturers Insurance Company, Plaintiff-Respondent, v. Joseph P. Russell, Daniel Garcia, Defendants, and Daniel Cox, Defendant-Appellant.
• Decision Date: 23 February 2004
• Court: New Jersey Superior Court

842 A.2d 243

367 N.J. Super. 121

Daniel COX, Plaintiff, v. Joseph P. RUSSELL and Daniel Garcia, Defendants.

New Jersey Manufacturers Insurance Company, Plaintiff-Respondent, v. Joseph P. Russell, Daniel Garcia, Defendants, and Daniel Cox, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued January 30, 2004.

Decided February 23, 2004.

John L. Antonas argued the cause for appellant (Jorgenson & Barnes, attorneys; Mr. Antonas, on the brief).

Michael T. Kearns argued the cause for respondent (Hoagland, Longo, Moran, Dunst & Doukas, New Brunswick, attorneys; James B. Moran, of counsel and on the brief).

Before Judges KING, LINTNER and REISNER.

The opinion of the court was delivered by LINTNER, J.A.D.

Daniel Cox appeals from two Law Division orders for summary judgment. The first, entered on May 29, 2002, dismissed Cox's personal injury complaint against his grandfather Daniel Garcia, the owner of the vehicle that struck Cox. The second, entered on April 14, 2003, in favor of New Jersey Manufacturers Insurance Company (NJM), found that Garcia's vehicle was not an uninsured motor vehicle under the terms of NJM's policy. We affirm the order of May 29, 2002, dismissing Cox's complaint against Garcia, however, we reverse the order of April 14, 2003, denying uninsured motorist (UM) coverage for Cox's alleged injuries.

On June 9, 1999, Cox, who resided in the same household with Garcia, borrowed Garcia's car and drove to the home of defendant Joseph Russell. Garcia's vehicle was insured by NJM with a policy providing $100,000 in liability and UM limits. Cox visited Russell for a short time and then decided to leave. Russell did not want Cox to leave. When Cox attempted to leave, Russell blocked Cox's path by standing in front of the vehicle. Cox exited the vehicle. As he walked toward the front of the car to talk to Russell, Russell ran around Cox, entered the car, and drove it forward, striking Cox.

Cox filed a personal injury complaint against both Garcia and Russell, alleging that Russell was operating the vehicle as Garcia's agent. Garcia answered and moved for summary judgment, claiming that there was no agency relationship between him and Russell, and that Russell did not have permission to operate the vehicle.

On May 16, 2002, Cox advised NJM that he was going to file a petition for arbitration pursuant to the UM coverage provisions of the policy. Following entry of the May 29 summary judgment, Cox amended his complaint, seeking UM coverage from NJM. Russell never answered, could not be found, and default was eventually entered against him. Meanwhile, NJM filed a declaratory judgment complaint seeking an order denying both liability and UM coverage. Both complaints were consolidated. The April 14, 2003, order granting summary judgment in favor of NJM declared that Garcia's vehicle "was not an `underinsured motor vehicle' or `uninsured motor vehicle' under the terms of the NJM insurance policy issued to Daniel Garcia."

On appeal, Cox asserts that he is entitled under the facts to UM coverage. Alternatively, Cox contends that if he is not entitled to UM coverage then the initial summary judgment order was entered in error because there was a genuine issue of material fact as to whether Russell had permission to operate Garcia's vehicle. Cox concedes that Russell must be a permissive driver in order for liability coverage to attach. The underlying principle is well settled. Once a person is given permission to use a vehicle, "any subsequent use short of theft or the like while it remains in [the initial permissive user's] possession, though not within the contemplation of the parties, is a permissive use within the terms of a standard omnibus clause in an automobile liability insurance policy." Matits v. Nationwide Mut. Ins. Co., 33 N.J. 488, 496-97, 166 A.2d 345 (1960).

Relying on St. Paul Insurance Co. v. Rutgers Casualty Insurance Co., 232 N.J.Super. 582, 588, 557 A.2d 1052 (App. Div.1989), Cox argues that coverage under the liability portion of the NJM policy is dependent upon whether Russell had a reasonable belief that he was entitled to operate Garcia's vehicle and that he is entitled to a plenary hearing on that issue. We disagree. The facts in St. Paul are distinguishable. There, the issue was whether a seventeen-year-old unlicensed driver who had a driver's permit had his mother's permission to operate the vehicle for which she had purchased insurance. In St. Paul, we dealt with an initial permissive user, the insured's son, and indicated that "if [the mother], on occasion, had allowed [her son] to drive the car on public roads without supervision, it could be argued that on the date of the accident [the son] reasonably believed he had his mother's permission...." Id. at 589, 557 A.2d 1052.

Here, unlike the facts in St. Paul, Russell was not the initial permissive user. Russell has never been found and has not provided a different version from that supplied by Cox. The only evidence is that Russell unexpectedly entered the vehicle after Cox got out, and drove it into Cox. There are no facts to support the notion that Russell reasonably believed he had permission from Cox to use the vehicle. The order finding that Russell did not have permission to use the vehicle was properly entered. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). Accordingly, Cox is not entitled to coverage under the liability provisions of the NJM policy.

We come to a different conclusion on Cox's eligibility for UM coverage. NJM contends that there was insufficient evidence to establish that Russell "intended to steal" Garcia's vehicle and that, absent a finding of carjacking, UM coverage is not triggered. We reject NJM's contentions. As we have previously pointed out, any subsequent use "short of theft or the like" while a vehicle remains in the initial permissive user's possession, though not within the...