Liberty Mut. Ins. Co. v. Massey
| Decision Date | 18 January 1983 |
| Parties | LIBERTY MUTUAL INSURANCE COMPANY, Plaintiff, v. Randi K. MASSEY and Carol Massey, Defendants. |
| Court | New Jersey Superior Court |
William P. Busch, Jr., Atlantic City, for plaintiff (Cole & Cole, Jersey City, attorneys).
Abigail Sayegh, Atlantic City, for defendants (Goldenberg, Mackler & Sayegh, Atlantic City, attorneys).
This case involves a determination of coverage under the uninsured motorist provisions of an automobile liability policy. At issue is whether an insured who is injured as a result of a collision with a second vehicle may seek recovery under her own policy when the second vehicle, although insured generally, is not being operated with the knowledge, consent or permission of its owner. There is a secondary issue as to whether coverage is alternatively available based on the status of the accident as a "hit-and-run" case.
Based on the stipulated facts it appears that plaintiff's insured, Carol Massey, was operating her vehicle on June 19, 1981, at which time she was involved in a collision with a second vehicle owned by Joseph Danley. The latter vehicle was being operated without the knowledge or consent of the owner, and its driver fled the scene prior to being able to be identified. At the time of the accident the Danley vehicle was insured through a policy with Safeco Insurance Company. When Massey pursued a damage claim with Danley's carrier, however, the company acknowledged coverage generally but took the position that it had no responsibility, given the operation of the vehicle without the owner's knowledge or consent. On June 3, 1982 Massey filed for arbitration pursuant to the uninsured motorist provision of her own policy, claiming that the Danley vehicle was uninsured and/or a hit-and-run case. Her carrier denied responsibility under its policy, brought suit here and obtained a preliminary restraint of the arbitration proceeding. The matter is now before the court for final disposition.
The primary issue to be determined is whether the uninsured motorist provision of the policy in effect for the Masseys is operative under the above set of facts. More specifically, is uninsured motorist coverage available to an insured who is injured as a result of the actions of a third party operating a vehicle which, although insured, is being driven without the consent and/or permission of its owner? Alternatively, is such coverage available when the driver of the second vehicle leaves the scene of the accident and cannot be identified? Based on the stipulated facts, the appropriate statutory references and the applicable case law, it is the conclusion of this court that the answer to these questions should be yes.
The automobile liability policy issued by plaintiff and applicable to the Massey vehicle contains provisions dealing with uninsured motorists and defines an "uninsured highway vehicle" as one with no bodily injury, liability insurance policy applicable at the time of accident, or with respect to which there is a bodily injury liability policy but the company writing the same denies coverage thereunder. The definition also includes a so-called hit-and-run vehicle, which term is further defined as a highway vehicle which
... causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (a) there cannot be ascertained the identity of either the operator or the owner of such a vehicle; ....
On the basis of these provisions, plaintiff carrier argues that the Danley vehicle was not "uninsured" because there was a valid policy of insurance in effect which covered it at the time of the accident. It further contends that this was not a "hit-and-run" case because the owner of the vehicle could be and was ascertained. Although both of these positions appear to represent fair readings of the policy language, that language must be interpreted here against the backdrop of the applicable statutory mandates as well as the case law interpreting those mandates.
One such mandate is N.J.S.A. 17:28-1.1. That statute, in its basic terms, requires every automobile liability policy issued in this State to include coverage providing for payment of all or part of any sum which the insured shall be legally entitled to recover as damages from the operator or owner of an uninsured automobile or hit-and-run automobile as defined in N.J.S.A. 39:6-78. The latter statute is part of the Motor Vehicle Security-Responsibility Law and provides as follows:
When the death of, or personal injury to, any person arises out of the ownership, maintenance or use of a motor vehicle in this State on or after April 1, 1955, but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained or it is established that the motor vehicle was at the time said accident occurred, in the possession of some person other than the owner without the owner's consent and that the identity of such person cannot be ascertained, any qualified person who would have a cause of action against the operator or owner or both in respect to such death or personal injury may being an action therefor against the director [of Motor Vehicles] in any court of competent jurisdiction....
An interpretation of the policy issued by plaintiff within the framework of the legislation just mentioned requires that any provision which purports to be more restrictive be judicially modified to conform to the statutory standard. Beck v. Ohio Cas. Ins. Co., 73 N.J. 185, 373 A.2d 654 (1977); Selected Ins. Co. v. Zullo, 48 N.J. 362, 225 A.2d 570 (1966); Fernandez v. Selected Risks Ins. Co., 163 N.J.Super. 270, 394 A.2d 877, aff'd 82 N.J. 236, 412 A.2d 755 (1980); Willis v. Security Ins. Group, 104 N.J.Super. 410, 250 A.2d 158 (Ch.Div.1968), aff'd o.b. 53 N.J. 260, 250 A.2d 129 (1969). When appropriate, the courts of this State have not hesitated to strike provisions of automobile liability policies which do not conform to relevant statutory mandates, including those requiring uninsured motorist coverage. Beck v. Ohio Cas. Ins. Co., supra.
Given these standards, one may legitimately question whether the Danley vehicle is, in reality, "insured" within the framework of the coverage mandated by N.J.S.A. 17:28-1.1. In the sense that there was a valid liability policy covering the vehicle generally, the answer is yes. On the other hand, it is equally clear that under the circumstances of this accident neither the owner of the second vehicle nor the carrier would bear responsibility. McClain v. Jones, 121 N.J.Super. 38, 295 A.2d 866 (App.Div.1972). Omnibus coverage which normally provides protection to nonowner drivers applies only where the use is with the "express or implied consent of the insured...." N.J.S.A. 39:6-46(a) (repealed by L.1979, c. 16); N.J.S.A. 39:6B-1; State Farm, etc., Ins. Co. v. Simmons' Estate, 84 N.J. 28, 40, 417 A.2d 488 (1980); Keystone Ins. Co. v. Atlantic Chrysler Plymouth, 167 N.J.Super. 353, 357, 400 A.2d 872 (Law Div.1979). By stipulation it is admitted that no such consent was given here. Nor is this the type of situation where the carrier for the second vehicle denies liability simply because of a disputed question of fault.
A question similar to that being considered here was presented in the case of Travelers Indem. Co. v. Mongiovi, 135 N.J.Super. 452, 343 A.2d 750 (App.Div.1975). But for...
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