Mancuso v. Rothenberg

• Decision Date: 02 May 1961
• Docket Number: No. A--682,A--682
• Citation: 67 N.J.Super. 248,170 A.2d 482
• Parties: Salvatore MANCUSO and Ruby Mancuso, Plaintiffs, v. Leonard ROTHENBERG, Third-Party Plaintiff-Respondent, and Alfred Bender and Louis Bender, Defendants, v. MOTORS INSURANCE CORPORATION, Third-Party Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 248

67 N.J.Super. 248

170 A.2d 482

Salvatore MANCUSO and Ruby Mancuso, Plaintiffs, v. Leonard ROTHENBERG, Third-Party Plaintiff-Respondent, and Alfred Bender and Louis Bender, Defendants, v. MOTORS INSURANCE CORPORATION, Third-Party Defendant-Appellant.

No. A--682.

Superior Court of New Jersey Appellate Division.

Argued March 20, 1961.

Decided May 2, 1961.

Louis Chivian, Newark, for third-party defendant-appellant (Chivian & Chivian, Newark, attorneys; Louis Chivian, of counsel).

Albert S. Parsonnet, Newark, for third-party plaintiff-respondent.

Before Judges GOLDMANN, FOLEY and LEWIS.

The opinion of the court delivered by

LEWIS, J.A.D.

Plaintiffs Salvatore Mancuso and Ruby Mancuso, co-owners of a Fiat automobile, were insured against damages thereto, less $50 deductible, by Emmco Insurance Company (hereinafter referred to as Emmco).

On August 5, 1959 at 3:45 A.M., defendant Leonard Rothenberg, with the permission of the plaintiffs, was driving the Fiat, on a mission for his own benefit, when he became involved in a collision with another car owned by the defendant Alfred Bender and operated by his agent, defendant Louis Bender. The Fiat car was damaged. At the time of the accident, defendant Rothenberg owned a Plymouth automobile (not involved in the accident). He was at that time insured by Motors Insurance Corporation (hereinafter referred to as Motors) against damage from collision, less $50 deductible. This coverage extended to his Plymouth automobile and to any non-owned vehicle which he might have the occasion to operate.

The plaintiffs collected their loss (less $50) from Emmco, and instituted suit against Rothenberg for the full amount thereof, for the benefit of their carrier Emmco, as subrogee, and for themselves as to the $50 deducted. Defendant Rothenberg, pursuant to order for leave to file third-party complaint impleaded his insurance carrier, Motors, as a third-party defendant. Motors denied liability, maintaining that its policy did not afford coverage to the defendant Rothenbert relative to the matters set forth in the third-party complaint, that collision insurance covering the Fiat was issued and loss thereunder paid by Emmco (less $50), and that, under the circumstances, its coverage was excess insurance. The limits of the Emmco policy had not been exceeded.

The damages to the Fiat car were stipulated by the plaintiffs and the defendant Rothenberg to be $552.73. Motors agreed that such figure represented a fair and reasonable value of the repairs to the car. There was an additional towing charge of $25 covered by the policy of Motors. The case was tried without a jury, and the court found that there was no negligence on the part of the defendants Benders and, on their motion, without objection, judgment was entered in their favor. The court further found that the sole negligence and proximate cause of the accident rested with Rothenberg, and, accordingly, found for the plaintiffs and entered judgment against the defendant Rothenberg in the amount of $552.73. The court also found that the insurance policy of Motors 'was issued for the protection of Rothenberg, not on a Fiat,' and entered judgment for Rothenberg on the third-party complaint against Motors for $527.73, representing damages of $552.73 plus $25 towing charges less $50 which was deductible.

The contract of insurance contained a statement in bold red print: 'This Policy DOES NOT PROVIDE bodily injury and property damage liability insurance or any other coverage for which a specific permium charge is not made, and does not comply with any Financial Responsibility Law.' The declaration page of the policy indicates that premiums were paid for coverages including 'E Collision or Upset (actual cash value less $50 deductible)' and 'F Towing and Labor Costs.' Under that portion of the policy relating to 'Insuring Agreements,' there is a provision as to 'Coverage E--Collision' by which the insurance company agreed:

'To pay for loss caused by collision to the owned automobile or to a non-owned automobile but only for the amount of each such loss in excess of the deductible amount stated in the declarations as applicable hereto.'

Specific exclusions are enumerated, and item (c) is invoked. It reads: 'to loss to a non-owned automobile arising out of its use by the insured in the automobile business.' The recited conditions of the policy include, Inter alia, a paragraph captioned '13. Other Insurance,' which provides:

'If the insured has other insurance against a loss covered by this policy, the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability of this policy bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance.'

In is uncontroverted that Rothenberg did not have any other collision insurance and that he was operating a non-owner's vehicle when the accident occurred. The court found as a matter of fact, supported by ample evidence, that he was engaged in a pleasure trip at the time of the accident, and that the loss sustained did not arise under circumstances that could be construed within the policy exclusion 'use by the insured in the automobile business.' Accordingly, the primary liability of Motors under the quoted provision of 'Coverage E-Collision' is beyond question.

On the other hand, quoted condition 13 presents disputed language for construction. Motors maintains: (1) this provision is not limited to insurance by and for the insured; (2) the words 'other insurance' as therein used should be liberally interpreted; and (3) the clause 'provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance' is a lawful limitation which should be construed to mean 'irrespective of whether other such insurance was procured by persons other than the named insured.' In support of its contentions, reliance is placed upon Woodrich Construction Co. v. Indemnity Ins. Co., 252 Minn. 86, 89 N.W.2d 412 (Sup.Ct.1958). That case, however, is distinguishable in that it dealt with comprehensive liability and not collision insurance. Moreover, four employers' comprehensive general liability policies were before the court for analysis, comparison and construction, and each of the four policies contained an 'other insurance' clause.

The theory of Motors' defense at the trial level was that exclusion 'C' of its policy relieved it of liability, and that, in any event, under condition 13 Motors could only be liable for excess insurance as the Fiat car was covered by an Emmco policy allegedly valid and collectible.

The court below found against Motors, and determined that the 'Fiat was not at the time of the accident being used in the automobile business of Rothenberg.' Accordingly, exclusion 'C' of the Motors' policy was not applicable. With respect to condition 13 of the policy, the court held 'If motors intended this clause to apply to the present situation, it would have been very easy to have added after the words 'over any other valid and collectible insurance,' the words 'on a non-owned automobile.'

'To interpret the clause in the manner described by Motors is to my mind to add something to it which it presently does not contain.

'If there be ambiguity in the clause or paragraph, that ambiguity must be resolved under established principles against Motors who prepared and issued the policy.

'This policy was issued for the protection of Rothenberg, not on a Fiat. He was entitled on reading it to believe he possessed coverage not only on his owned Plymouth but on non-owned automobiles.

'To leave him without such coverage and with a judgment against him for the damage done to the Fiat, is in my view to leave him without protection which he has properly paid.

'There is no double recovery here as the defendant argued.

'The Mancusos I have found are entitled to recover against Rothenberg. And it is accidental that in that recovery Emco, their carrier, shares.

'I conclude that Paragraph 13 neither prevents recovery by Rothenberg against Motors nor limits such recovery.'

Condition 13 should be read in its entirety. It is a single paragraph commencing: 'If the insured has other insurance * * *.' There is no language present that would indicate an intent to include insurance other than what The insured has. The judicial authorities have consistently held that ambiguous or doubtful language in an insurance contract must be construed 'most advantageous to the assured.' Gross v. Commercial Casualty Ins. Co. of Newark, N.J., 90 N.J.L. 594, 599, 101 A. 169, 171 (E. & A. 1917); Zurich General Accident & Liability Ins. Co. Ltd., v. American Mutual Liability Ins. Co. of Boston, 118 N.J.L. 317, 321, 192 A. 387 (Sup.Ct.1937); Fleming v. Connecticut General Ins. Co., 116 N.J.L. 6, 15, 181 A. 185 (E. & A. 1935). 'The court will not write better or more favorable contracts for parties than they have themselves seen fit to make.' Marone v. Hartford Fire Ins. Co., 114 N.J.L. 295, 297, 176 A. 320, 321 (E. & A. 1934); Kupfersmith v. Delaware Insurance Co., 84 N.J.L. 271, 86 A. 399, 45 L.R.A.,N.S., 847 (E. & A. 1912).

In Boswell v. Travelers Indemnity Co., 38 N.J.Super. 599, 120 A.2d 250 (App.Div.1956), this court observed that the rules of construction applicable to contracts of insurance are fairly uniform and it made reference to several case decisions and other authorities respecting such rules, citing the case of Schneider v. New Amsterdam Cas. Co., 22 N.J.Super. 238, at pages 242--243, 92 A.2d 66, at page 68 (App.Div.1952), wherein it was said:

'It is, of course, the almost universal rule that insurance contracts must wherever...