Johnson v. New Jersey Mfrs. Indem. Ins. Co.
| Decision Date | 29 September 1961 |
| Docket Number | No. A--253,A--253 |
| Citation | 174 A.2d 4,69 N.J.Super. 184 |
| Parties | Alda T. JOHNSON, Plaintiff-Respondent, v. NEW JERSEY MANUFACTURERS INDEMNITY INSURANCE COMPANY, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Richard J. S. Barlow, Jr., Trenton, for appellant. (Lenox, Giordano & Lenox, Trenton, attorneys).
Sol Phillips Perlman, Trenton, for respondent. (Perlman & Lerner, Trenton, attorneys).
Before Judges GOLDMANN, FOLEY and LEWIS.
The opinion of the court was delivered by
FOLEY, J.A.D.
This is an appeal from a judgment entered by the Mercer County District Court on November 17, 1960 granting plaintiff's motion for a summary judgment. Plaintiff alleged in her complaint that on May 4, 1958 her infant daughter Carol sustained bodily injury while riding as a passenger in the automobile of one John Pouria. Consequently, plaintiff incurred medical expenses on behalf of her daughter in the amount of $966.75 during the first year from the date of the accident. The Pouria automobile was insured by a company other than defendant. The policy covering the Pouria automobile provided for medical payments coverage with a limit of liability for each person in the sum of $2,000. There was also in force a family automobile policy issued by defendant company to the plaintiff covering her automobile, which provided for medical payments, with a limit of $500 per person. Plaintiff claimed that under the provisions of the policy issued by defendant she was entitled to $193.35, or one-fifth of the medical expenses incurred during the first year following the accident. Defendant entered an appearance but did not file an answer. Cross-motions for summary judgment were then made, plaintiff's motion being supported by an affidavit which verified the allegations of the complaint. Defendant's motion was denied; that of plaintiff granted.
The crucial issue for determination is whether defendant's insurance policy was excess insurance as defendant contends, hence, not available to plaintiff unless the policy on the Pouria automobile was insufficient to defray her losses; or whether, as plaintiff urges and the trial court held, defendant's policy was concurrent insurance, and thus defendant was liable for its Pro rata share of plaintiff's losses based on the proportion which its policy limits bore to the total coverage extended by both policies.
We are informed by counsel that their research has failed to disclose apposite judicial precedent in this relatively new field of insurance coverage, and we have found none.
The liability of the insurer for medical payments depends, of course, upon the construction of the particular language of the policy. See Annotation, 42 A.L.R.2d 983. The medical payments coverage provided by defendant's policy is expressed as follows:
'Part II--Expenses For Medical Services
To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:
Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' caused by accident, while occupying or through being struck by an automobile.
Division 2. To or for any other person who sustains bodily injury, caused by accident, while occupying
(a) the owned automobile, while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured; or
(b) a non-owned automobile, if the bodily injury results from (1) its operation or occupancy by the named insured or its operation on his behalf by his private chauffeur or domestic servant or (2) its operation or occupancy by a relative, provided it is a private passenger automobile or trailer.'
Certain definitions contained in Part I of the insurance policy have bearing on the question presented. They follow "relative' means a relative of the named insured who is a resident of the same household;
'owned automobile' means a private passenger, farm or utility automobile or trailer owned by the named insured, and includes a temporary substitute automobile;
'temporary substitute automobile' means any automobile or trailer, not owned by the named insured, while temporarily used as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;
'non-owned automobile' means 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; * * *.'
It is evident that the design of Part II was to grant broader, and thus more favorable, coverage to the assured or his relative under Division 1, than to 'any other person' under Division 2. Division 1 is extremely broad. There the company binds itself to the payment of expenses incurred by the assured or a relative as the result of injuries sustained while occupying or when struck by An automobile. In this section no distinction is made between the occupancy of the assured's automobile by the assured or a relative, and such occupancy of a Non-owned automobile. In either case the right to benefits by the assured, or the relative, is unqualified. Plainly, then, An automobile for the purposes of Division 1 means Any automobile.
On the other hand, in Division 2 the policy distinguishes between the coverage extended to any person other than the assured or a relative while occupying the assured's automobile, and that extended when such other person is an occupant of a non-owned automobile, in each case limiting the company's responsibility to pay, to certain stated circumstances.
Thus analyzed, it is apparent that the benefits deriving from Division 1 and those provided by Division 2 deal with two different classes of persons and are mutually exclusive.
The precise point in dispute is the effect of this distinction upon...
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