Martusus v. Tartamosa
| Decision Date | 09 July 1997 |
| Parties | Susan MARTUSUS, Administratrix ad Prosequendum, and Susan and Ernest Martusus, Co-Administrators of the Estate of David E. Martusus, Deceased, Plaintiffs-Respondents, v. Thomas J. TARTAMOSA, Defendant-Respondent, and Barbara L. Heim, Stephen P. Serale, Renee C. Liberoni, John Does I and II (fictitious names of persons more fully described herein), jointly, severally and/or in the alternative, Defendants, and General Accident Insurance Company, Defendant-Appellant. Renee C. LIBERONI, Plaintiff, v. Thomas J. TARTAMOSA, Defendant-Respondent, and Timothy Heim, Barbara L. Heim, Stephen Serale, John Doe I to V, John Doe Partnerships I to V, John Doe Corporations I to V, individually, jointly, severally and/or in the alternative, Defendants. Stephen SERALE, Plaintiff, v. Thomas J. TARTAMOSA, Defendant-Respondent, and Timothy Heim, Barbara L. Heim, John Doe I to V, John Doe Partnerships I to V, John Doe Corporations I to V, individually, jointly, severally and/or in the alternative, Defendants. |
| Court | New Jersey Supreme Court |
Joseph A. Venuti, Jr., Mount Laurel, for defendant-appellant (Swartz, Campbell & Detweiler, attorneys).
G. Wesley Manuel, Jr., Cherry Hill, for plaintiffs-respondents Susan Martusus, Administratrix ad Prosequendum, and Susan and Ernest Martusus, Co-Administrators of the Estate of David E. Martusus, Deceased (Montano, Summers, Mullen, Manuel, Owens & Gregorio, attorneys).
Elizabeth A. Dalberth, Allentown, PA, submitted a letter in lieu of a brief on behalf of defendant-respondent Thomas J. Tartamosa (Murphy and O'Connor, attorneys).
The opinion of the Court was delivered by
The focus of this appeal is on the scope of permission to use an automobile. The narrow issue is whether the initial permission rule, first enunciated in Matits v. Nationwide Mutual Insurance Co., 33 N.J. 488, 166 A.2d 345 (1960), should be applied to excess catastrophe ("umbrella") policies. The trial court held that the Matits rule should not apply. The Appellate Division granted leave to appeal and summarily reversed by order. We granted leave to appeal, 146 N.J. 562, 683 A.2d 1159 (1996), and now affirm.
-A-
General Accident Insurance Co. ("GAI") issued a $300,000 single-limit-personal-automobile-liability policy to Timothy P. Heim covering a 1989 Chevrolet Caprice and a 1989 Ford Mustang. GAI also issued to Timothy P. Heim an umbrella policy with a liability limit of $1,000,000. That policy provided coverage for damages arising from a person driving a covered vehicle "with your permission." The premium for the primary policy was $380 and the premium for the umbrella policy was $114 for the same period. The Heims's son Michael was the primary driver of the Mustang that was registered in the name of Michael's mother, Barbara Heim. Michael gave permission to defendant Thomas Tartamosa to drive the Mustang at the time of an accident that spearheaded this litigation. The umbrella policy is important as an excess policy because the two automobile policies, purchased by Tartamosa and Heim, are likely to be insufficient to cover the claims against Tartamosa.
The accident occurred on May 9, 1993, while Tartamosa was driving the Heims's Mustang southbound on State Route 42. He lost control of the car and drove across a grass median and into northbound traffic, causing a collision with another car. David Martusus, Tartamosa's sole passenger, was killed in the accident.
Three people involved in the accident filed separate complaints against Tartamosa as the driver of the Mustang and Barbara Heim as the owner. Liberty Mutual Insurance Company, the primary carrier for Tartamosa, and GAI, the Heims's primary and excess carrier, were also named as defendants. The insurance companies were joined as parties to determine coverage and priority of coverages. All of the actions were consolidated.
GAI filed a motion for summary judgment, claiming that its umbrella policy provided no coverage to Tartamosa for the accident because he had not been given permission to drive the Mustang by either Timothy or Barbara Heim, the named insured and his spouse. The trial court agreed and granted summary judgment, denying Tartamosa any coverage under GAI's umbrella policy.
-B-
A determination of whether Tartamosa was covered by the GAI umbrella policy requires us to first identify the controlling facts and the pertinent policy language. Tartamosa had been given permission to drive the vehicle by Michael, the son of Timothy and Barbara Heim. Although the vehicle was registered in Barbara's name, Michael drove and maintained it. In view of those facts, we must examine the language of the policy in light of controlling legal principles to resolve whether Michael's permission to Tartamosa to drive the Mustang was sufficient to trigger coverage.
Part 2, Paragraph 9 of the policy defines an insured as:
a. You or a relative.
b. Any person using, with your permission, an auto, pleasure vehicle or boat you own, rent or borrow. (Insured does not mean the owner of an auto, pleasure vehicle, or boat you rent or borrow).
Part 2, Paragraph 1 of the umbrella policy provides that "you" and "your" refer to "the Named Insured in Declarations item 1 of the Declarations and spouse who lives in the same home." The named insured on the umbrella policy is Timothy P. Heim. Part 3, Paragraph A of that policy provides that when an accident is "covered by both a primary insurance policy and this policy ... [and] an insured is responsible for that harm or damage, we will pay the insured for the part of the loss that exceeds the primary limit."
GAI argues that its umbrella policy does not cover Tartamosa because its language clearly excludes him. GAI refers to the policy's definition of "insured": (1) "you" or a relative; or (2) any person using, with "your" permission, an auto that "you" own, rent, or borrow. GAI emphasizes that "your" refers only to Timothy and Barbara in the present case. GAI argues that because Tartamosa was not using the vehicle with the permission of either Timothy or Barbara, he is not covered by the policy. GAI also contends that the Appellate Division misapplied Matits, supra, 33 N.J. 488, 166 A.2d 345, and that case's broad definition of "permissive user" because that interpretation applies to primary coverage and not to umbrella policies.
Plaintiffs and Tartamosa argue that the Appellate Division properly applied the broad definition of "permissive user" followed in Matits, supra, 33 N.J. 488, 166 A.2d 345, and its progeny because this Court has consistently deemed drivers "permissive users" even when the person giving permission to the driver was not a "named insured" as required by the insurance policy.
-C-
The Matits Court held that once a person is given permission to use a vehicle, "any subsequent use short of theft or the like while it remains in his possession, though not within the contemplation of the parties, is a permissive use within the terms of a standard omnibus clause in an automobile liability insurance policy." Matits, supra, 33 N.J. at 496-97, 166 A.2d 345.
In Matits, the husband of a named insured allowed his neighbor to borrow his wife's vehicle to visit her mother. Id. at 490-91, 166 A.2d 345. The insurance policy covered any person using the vehicle with the "permission" of either the named insured or her husband. Id. at 492, 166 A.2d 345. After briefly visiting her mother, the neighbor drove out of her way to a restaurant in Paterson. Id. at 491, 166 A.2d 345. After consuming a few highballs, she took several trips between that restaurant and a bar in Paterson. Ibid. On her way home, she was involved in an auto accident. Ibid. The trial court deemed the neighbor "an additional insured" under the policy. Id. at 492, 166 A.2d 345. The Appellate Division and this Court affirmed. Id. at 492, 497, 166 A.2d 345.
In adopting the initial permission rule, this Court reasoned that once a person obtains permission to drive a vehicle, the driver is an additional insured under a typical omnibus clause for the duration of the driver's use of the car. Id. at 496-97, 166 A.2d 345. That rule applies to any deviation from the initial scope of permitted use, so long as the subsequent use does not constitute theft or a similar offense. Ibid. The Matits holding promoted the public policy of " 'collectibility of damages wrongfully inflicted in the operation of motor vehicles.' " Id. at 495, 166 A.2d 345 (quoting Rikowski v. Fidelity & Cas. Co., 117 N.J.L. 407, 410, 189 A. 102 (E. & A.1937)); see also Motor Club of Am. Ins. Co. v. Phillips, 66 N.J. 277, 292, 330 A.2d 360 (1974) (). The Matits Court also concluded that because liability insurance policies are drafted by insurers, they should be construed liberally in favor of insureds. Matits, supra, 33 N.J. at 495, 166 A.2d 345.
In Small v. Schuncke, 42 N.J. 407, 201 A.2d 56 (1964), this Court dealt more directly with an insured who had not given express permission to the person who was involved in the accident. In that case, the insured was hospitalized. Id. at 410, 201 A.2d 56. He asked his nephew to use the insured's car to run errands for the insured. Ibid. They did not discuss any other use of the car by the nephew. Ibid.
The nephew drove to New York with a friend. Ibid. While the friend was driving with the nephew's permission, he was involved in an accident. Ibid. The Court held that the policy covered the accident, even though (1) the nephew did not have explicit permission to use the car for personal errands; and (2) the nephew's friend did not have the owner's express permission to drive the car. Id. at 415, 201 A.2d 56.
Odolecki v. Hartford Accident & Indemnity Co., 55 N.J. 542, 264 A.2d 38 (1970), like Small, involved a person who received permission to drive a car...
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