Liberty Mut. Ins. Co. v. O'Rourke

• Decision Date: 08 January 1973
• Citation: 122 N.J.Super. 68,298 A.2d 725
• Parties: LIBERTY MUTUAL INSURANCE COMPANY, a company, Plaintiff, v. Kieran O'ROURKE et al., Defendants.
• Court: New Jersey Superior Court

Page 68

122 N.J.Super. 68

298 A.2d 725

LIBERTY MUTUAL INSURANCE COMPANY, a company, Plaintiff, v. Kieran O'ROURKE et al., Defendants.

Superior Court of New Jersey Chancery Division.

Jan. 8, 1973.

Frank R. Cinquina, Newark, for plaintiff (Schwartz & Andolino, Newark, attorneys).

George H. Harbaugh, Morristown, for defendants O'Rourke and Gundlach.

W. Stephen Leary, Morristown, for defendant State Farm Ins. Co. (O'Donnell, Leary & D.Ambrosio, Morristown, attorneys).

Joseph M. Speidel, Montville, for defendant Bifulco (Robert Fogelson, Montville, attorney).

Friedman & D'Alessandro, East Orange, for defendant Allstate Ins. Co.

Morgan, Melhuish, Monaghan, McCoid & Spielvogel, Livingston, for defendant Ford Motor Co.

STAMLER, J.S.C.

This matter is before the court on cross-motions for summary judgment requiring interpretation of an insurance policy in a declaratory judgment action. There is currently pending and awaiting this decision an action in the Law Division by an injured third party. On the return day of plaintiff's summary judgment motion, all defendants made cross-motions. This court, having been informed that the Law Division action who to be in the daily call on January 2, 1973, considered defendants' motions as timely made.

In this action Liberty named as defendants Kiernan O'Rourke, Louis Gundlach, Frederick Bifulco, Frederick Bifulco's infant son, State Farm Fire and Casualty Insurance Company, State Farm Mutual Automobile Insurance Company, Allstate Insurance Company and Ford Motor Company.

The following are the undisputed facts essential to a determination in this case:

On June 11, 1969, the wife of Bifulco had been driving her children home in the family's Ford automobile. The car suddenly stalled in front of the house where Gundlach resided. After unsuccessfully attempting to restart the vehicle, Mrs. Bifulco asked Gundlach to assist her. Gundlach determined that the car was out of gas, secured some from his home and put it in the gas tank. The car still would not start. Gundlach and his son-in-law, O'Rourke, decided that the carburetor needed priming. As Gundlach sat in the driver's seat turning the engine over, O'Rourke with head and hands under the hood poured gasoline into the throat of the carburetor. An explosion occurred, igniting the gasoline container. O'Rourke threw the container away from him and into the face and body of Bifulco's nine-year-old boy, who received severe and disfiguring injuries.

At the time of the incident there was in effect a policy of automobile liability insurance issued to the boy's father by Liberty, which provided coverage on the Ford in the amount of $300,000. Bifulco gave prompt notice of this incident to the company. At this late date Liberty disclaims coverage and asserts that any insurance coverage must come from Allstate, which issued an automobile policy to O'Rourke, and from State Farm Auto and from State Farm Fire, which issued, respectively, an auto and homeowner's policy to Gundlach.

The Liberty policy contained the following pertinent provisions:

Persons Insured

Under the Liability and Medical Expense Coverages, the following are insureds:

(a) With respect to an owned automobile,

(1) the named insured,

(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission. * * *

EXCLUSIONS

This policy does not apply: Under the Liability, Medical Expense & Accidental Death Benefit Coverage,

(g) to any automobile or trailer while maintained or used by any person while such person is employed or otherwise engaged in the automobile business, but this exclusion does not apply to the maintenance or use of an owned automobile (1) by the named insured or a relative, or (2) by any other insured in an automobile business in which the named insured has an interest as proprietor or partner;

It is Liberty's contention that neither Gundlach nor O'Rourke were 'using' the car but instead were 'maintaining' or 'repairing' it. They allege this type of act is not covered by the above-quoted section. Liberty relies on a number of cases in foreign jurisdictions which it feels are dispositive of the issue raised here. Each is readily distinguishable.

In Gullickson v. Western Casualty & Surety Co., 17 Wis.2d 220, 116 N.W.2d 121 (Sup.Ct.1962), the car was in a service station and the employee had the owner assist him by pouring gas into the carburetor while the service station mechanic turned the ignition. There it was held that it was not a 'use' of the car by the owner of the service station or his employee. The court ruled that the service station liability policy for 'maintenance' covered the accident.

However, this decision was based on facts judicially noted, that activities at a service station are different from occurrences elsewhere. The court stated:

It is common knowledge, and we take judicial notice of it, that the attendants at such stations are employed to render a variety of services to the traveling public to enable the patron of the service station to proceed on the journey which he has in mind. Among those services commonly rendered are to put gasoline in the tank of the car, check the oil, water and tire pressure and restore the proper levels in those respects if deficiencies are discovered, diagnose the causes of an unsatisfactory behavior by the automobile which the attendant is servicing and make minor repairs and adjustments to improve its performance. We do not think the servicing of the motorist's automobile is a 'use' of the car By the proprietor of the service station or his employee. Any motorist would be astonished to hear that his car is being 'used' by the station attendant who is wiping the windshield, or filling the tank, or changing a spark plug, or adjusting a carburetor or attempting to start the motor. In our view such servicing is not a use of the automobile By the personnel of the station. (116 N.W.2d at 124; emphasis supplied.)

In Graf v. Bloechl, 36 Wis.2d 635, 154 N.W.2d 340 (Sup.Ct.1967), the court held that what occurred was an act of maintenance and not an act of use or operation. There had been an attempt to start a previously inoperable car, which had been towed to the service station for timing and testing of a rebuilt engine not yet completely assembled. The Supreme Court of Wisconsin said that 'Under usual circumstances the starting of a motor vehicle would be considered an act reasonably related to the use of the vehicle.' 154 N.W. at 342. However, the court went on to note that the usual facts were not present. The car was inoperable, starting the engine would not permit its use, further repairs were necessary, and the engine was not completely assembled. The court found that it could not have been Bloechl's intent to drive the auto after it was started. The primary intent and purpose in starting the auto was to finish the repairs.

Chase v. Dunbar, 185 So.2d 563 (La.Ct.App.1966), is a case that is slightly closer to the facts at bar. In Chase a bystander was struck by a can of flaming gasoline tossed aside by an unidentified party attempting to start an automobile in the same manner as was tried by O'Rourke. The insurance policy had a clause exactly like the one in the Liberty policy. However, the court held that it was 'maintenance' rather than 'use':

The actions of the mechanics herein were in essence a test to determine whether the engine could be made to run or whether adjustments or repairs were necessary to make it functional. We hold, therefore, that the attempt to start the vehicle under the circumstances shown constitutes 'maintenance' rather than 'use' and such activity was not insured against since the policy in question afforded no coverage to an individual engaged in maintaining the insured vehicle. (at 570; emphasis supplied.)

The court in Chase held that each case had to be considered in light of its own particular facts and circumstances and that the intent, purpose and objective of the actor were important considerations. In the case at bar Gundlach and O'Rourke were not starting the car to test it for possible needed repairs. They were restarting Mrs. Bifulco's automobile so that she could continue on her way home.

The New Jersey courts have taken a different approach to this problem. In Unsatisfied Claim and Judgment Fund Bd. v. Clifton, 117 N.J.Super. 5, 283 A.2d 350 (App.Div.1971), the owner of an automobile left the vehicle at a service station for repair. While an employee of the service station was raising the car on a lift, the auto slipped and injured a helper of the employee (a non-employee). The court held that when a customer's policy covered any person using his auto, with his permission and within the scope thereof, a clause excluding coverage, if the automobile were used by a person engaged in the automobile business, was invalid.

The court reasoned:

(The repairman), as a permitted user under the terms of the omnibus provision, was entitled to protection...