Cox v. Santoro

• Decision Date: 29 December 1967
• Docket Number: No. A--1029,A--1029
• Citation: 98 N.J.Super. 360,237 A.2d 491
• Parties: Elizabeth Jane COX, an infant, etc., and Charles Cox, individually, Plaintiffs-Appellants, v. Marion SANTORO, Donald Santoro, Joseph Santoro, Defendants. UTICA MUTUAL INSURANCE COMPANY, Defendant-Respondent and Third-Party Plaintiff-Appellant, v. U.S. MUTUALS AGENCY, Third-Party Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 360

98 N.J.Super. 360

237 A.2d 491

Elizabeth Jane COX, an infant, etc., and Charles Cox, individually, Plaintiffs-Appellants, v. Marion SANTORO, Donald Santoro, Joseph Santoro, Defendants.

UTICA MUTUAL INSURANCE COMPANY, Defendant-Respondent and Third-Party Plaintiff-Appellant, v. U.S. MUTUALS AGENCY, Third-Party Defendant-Respondent.

No. A--1029.

Superior Court of New Jersey Appellate Division.

Argued Nov. 13, 1967.

Decided Dec. 29, 1967.

Thomas T. Warshaw, Red Bank, for appellants (Seymour R. Kleinberg, Keansburg, attorney).

H. Curtis Meanor, Jersey City, for defendant-respondent and third-party plaintiff-appellant Utica Mut. Ins. Co. (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys).

Before Judges CONFORD, COLLESTER and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

Plaintiffs appeal from judgments which held that defendant Utica Mutual Insurance Company (Utica) was not liable on a policy of automobile insurance issued to defendant Joseph Santoro through the third-party defendant U.S. Mutuals Agency (U.S. Mutuals), for damages arising from injuries sustained by the infant plaintiff Elizabeth Jane Cox by reason of the negligent operation of an automobile by defendant Donald Santoro.

The facts herein are not disputed--those concerning the issue of coverage were stipulated. On August 16, 1964 Donald Santoro was operating a Chevrolet automobile belonging to his sister Marion Santoro, with her permission. The car left the highway and struck a tree resulting in serious injury to his friend, Elizabeth Jane Cox, who was a passenger. Elizabeth and her father thereafter instituted suit which resulted in verdicts against Donald totalling $116,914.09.

Marion Santoro's automobile was covered at the time of the accident by a policy issued to her by defendant Utica through U.S. Mutuals where she was employed. Defendant Utica concedes that it is liable to plaintiffs under that policy to the extent of $25,000, its upper limit for bodily injury to one person. By the present suit for declaratory judgment plaintiffs seek to recover from Utica under a second policy issued by it to Joseph Santoro, the father of Donald and Marion, which provides for coverage up to $50,000 for one person.

The policy issued to Joseph covered a 1963 Volkswagen and contained the usual clauses affording coverage for damages arising from the operation of that vehicle. In addition, it contained the following clause referable to the operation of 'nonowned' automobiles:

'Persons Insured: The following are insureds under Part 1:

(b) with respect to a non-owned automobile,

(1) the named insured,

(2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, * * * of the owner and is within the scope of such permission, * * *.'

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 insured or any relative, other than a temporary substitute automobile,' and a relative was defined as 'a relative of the named insured who was a resident of the same household.' It is not contended that the automobile being driven by Donald at the time of the accident was a temporary substitute automobile.

At the time of the accident Joseph Santoro and his wife, together with Donald and Marion, both single, were living together in the same household. Donald did not own a car but was using Marion's Chevrolet for his own purposes, e.g., as a means of transportation for himself and his companion.

Judge Fisher, in an opinion reported in 94 N.J.Super. 319, 228 A.2d 101, held that Joseph's policy did not afford coverage for Donald's negligent operation of Marion's car on the ground that it was excluded from coverage by the policy terms as an automobile owned by a relative. He reasoned that the policy was so written to avoid 'overloading' it with the hazards flowing from the operation of multiple cars out of a single household in cases where the premium paid was based upon the operation of but one named vehicle. At the subsequent trial of the remaining issues he granted motions for judgment in favor of defendants, holding as a matter of law that U.S. Mutuals had not been negligent in writing the policy and had not acted as the agent of Utica in doing so.

The judgment of the Law Division as to the coverage of the policy is affirmed, substantially for the reasons set forth in the opinion of the trial court as supplemented herein.

Plaintiffs urge that the words 'non-owned automobile' refer to Any automobile not owned by the insured, and since the definition contained in the policy is in the nature of an exclusionary clause, it should be strictly construed against the company to afford coverage. Mazzilli v. Accident & Cas. Ins. Co. of Winterthur, 35 N.J. 1, 8, 170 A.2d 800 (1961). Not so. The policy definition of a non-owned automobile is clear and unambiguous. Carr v. Home Indemnity Company, 404 Pa. 27, 170 A.2d 588, 83 A.L.R.2d 922 (Sup.Ct.1961); cf. Fidelity and Casualty Company of New York v. Jackson 297 F.2d 230, 232 (4 Cir.1961)...