Matits v. Nationwide Mut. Ins. Co.

• Decision Date: 02 February 1960
• Docket Number: No. A--701,A--701
• Citation: 59 N.J.Super. 373,157 A.2d 853
• Parties: John MATITS, Plaintiff-Respondent, v. NATIONWIDE MUTUAL INSURANCE CO., etc., Defendant-Appellant. Elizabeth SLODZINSKI and Anthony Slodzinski, Plaintiffs-Respondents, v. NATIONWIDE MUTUAL INSURANCE CO., etc., Defendant-Appellant, and Allstate Insurance Company, etc., Defendant. ALLSTATE INSURANCE COMPANY, Plaintiff-Respondent, v. NATIONWIDE MUTUAL INSURANCE CO., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 373

59 N.J.Super. 373

157 A.2d 853

John MATITS, Plaintiff-Respondent, v. NATIONWIDE MUTUAL INSURANCE CO., etc., Defendant-Appellant.

Elizabeth SLODZINSKI and Anthony Slodzinski, Plaintiffs-Respondents, v. NATIONWIDE MUTUAL INSURANCE CO., etc., Defendant-Appellant, and Allstate Insurance Company, etc., Defendant.

ALLSTATE INSURANCE COMPANY, Plaintiff-Respondent, v. NATIONWIDE MUTUAL INSURANCE CO., Defendant-Appellant.

No. A--701.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 1, 1959.

Decided Feb. 2, 1960.

Henry H. Rubenson, Newark, argued the cause for defendant-appellant (Oppenheim & Oppenheim, Newark, attorneys).

Leon A. Consales, Paterson, argued the cause for plaintiffs-respondents (Gelman & Gelman, Paterson, attorneys for John Matits; Leon A. Consales, Paterson, attorney for Elizabeth and Anthony Slodzinski).

Kent A. Losche, Hackensack, argued the cause for Allstate Ins. Co. (Charles C. Shenier, Hackensack, attorney).

Before Judges GAULKIN, SULLIVAN and FOLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

Defendant Nationwide Mutual Insurance Co. (hereinafter referred to as Nationwide) appeals from judgments entered against it in favor of all plaintiffs. The case was tried in the Law Division without a jury.

On October 26, 1956 one Betty Mae Hoerner was the driver of an automobile which was in collision with an automobile owned by Elizabeth Slodzinski and operated by Anthony Slodzinski in which John Matits was a passenger. The automobile driven by Mrs. Hoerner was owned by Mrs. Hilda Velasco and was insured by the defendant, Nationwide, under a standard form automobile liability policy containing the omnibus coverage required by N.J.S.A. 39:6--46(a). Mrs. Hoerner was an 'additional assured' under a similar policy issued on another automobile by Allstate Insurance Company (hereinafter referred to as Allstate), the provisions of which granted her coverage for the occasional operation of a vehicle other than the one insured.

Individual suits were instituted by Matits and the Slodzinskis against Mrs. Hoerner and Hilda Velasco and were consolidated for trial. Prior thereto, by stipulation, the actions against Mrs. Velasco were dismissed, it being agreed that Mrs. Hoerner was not her agent at the time of the accident. Trial of the consolidated cases resulted in judgments against Mrs. Hoerner in favor of Matits in the sum of $25,000 and in favor of Elizabeth and Anthony Slodzinski in the sums of $855 and $500 respectively. Thereafter Allstate paid $10,000, its full coverage, on account of the Matits' judgment. Matits then instituted this suit against Nationwide on the omnibus coverage for the balance. The Slodzinskis brought an action against Nationwide on the same coverage. Allstate sued Nationwide for the cost of the legal fees it had incurred in defending Mrs. Hoerner. All actions were consolidated for trial. It is conceded that in this situation Nationwide was the primary insuror, the coverage provided by Allstate being regarded as excess. See American Sur. Co. of New York v. American Indem. Co., 8 N.J.Super. 343, 72 A.2d 798 (App.Div.1950). Judgments were entered against Nationwide in favor of all other parties.

The crux of the questions presented to the trial court was whether the plaintiffs had established by a preponderance of the evidence that Mrs. Hoerner at the time of the accident had such permission to drive the Velasco car as to entitle her to the benefits of the omnibus coverage embraced by the Nationwide policy. The clause provides:

'Insuring Agreements

'C. To pay all sums which those entitled to protection become legally obligated to pay as damages arising out of the ownership, maintenance or use, including loading and unloading, of the described automobile because of:

'(1) destruction or damage of property including loss of use thereof;

'(2) bodily injury, sickness, disease or death of any person except for liability under any workmen's compensation law. Those entitled to protection under these Coverages C(1) and C(2) are the Policyholder, his spouse if a resident of his household, and any person or organization legally responsible for the use of the described automobile, provided the actual use was with the permission of the Policyholder or such spouse.'

The undisputed facts bearing upon this question were these: Mrs. Hoerner and Mr. and Mrs. Velasco were friends and neighbors living in Ramsey, N.J. On the evening of October 25, 1956 Velasco loaned the automobile to Mrs. Hoerner at her request so that she might visit her sick mother in Hawthorne, N.J. Mrs. Hoerner drove to Hawthorne arriving at about $8:00 P.M. She stayed for a short time and then drove to the Crane House, a tavern and restaurant at First and Madison Streets, Paterson, N.J., in search of her sister. At Hawthorne, Paterson is in the opposite direction from Ramsey. Mrs. Hoerner had at least two or three Scotch highballs there and then drove to the Flamingo bar in Paterson. After a brief stay she returned to the Crane House. Shortly thereafter she paid a second visit to the Flamingo; then a third call to the Crane House. Just before midnight she made her final departure from the latter establishment and within a short time was involved in the collision with the Slodzinski car at 10th and Madison Streets, Paterson.

Matters other than these were in controversy. Velasco testified that when he gave permission to use the car he directed Mrs. Hoerner to return it within one hour as he was on 'standby'; contrarily Mrs. Hoerner said that no strings were attached to the permission. Again she testified that at about 11:00 P.M. she telephoned Velasco that she was 'going to be a little late' and asked 'if he would mind' if she 'kept the car a little longer'; to which he replied: 'Certainly as long as (she) returned the car before three o'clock in the morning.' But his version of the conversation was that it occurred between 9:00 P.M. and 9:30 P.M. and he said that, upon being informed by Mrs. Hoerner that she contemplated stopping for a drink on the way home, that he told her that she 'better get right home' because he needed the car and her husband would be home soon and if he knew that she was drinking she would 'get it.' The trial judge in his oral deliverance deemed it unnecessary to resolve these issues, apparently because regardless of how they were resolved his determination would not have been affected.

The rationale of the trial court's decision was that, in light of the undisputed facts above noted, Mrs. Hoerner's use of the car did not so exceed the owner's permission as to deprive her of coverage. The court relied principally upon Rikowski v. Fidelity & Casualty Co., 117 N.J.L. 407, 189 A. 102 (E. & A.1937).

In the Rikowski case a chauffeur delivered his employer to a temporary destination where there was no parking space and was instructed by her to 'find a place to park the car and return in an hour.' He drove several blocks, met friends and proceeded to drive the group to their home; while thus engaged and when the hour was about half spent he met with a collision wherein the plaintiffs were injured. Plaintiffs sued the chauffeur, obtained a judgment which was unsatisfied, and then brought action against the insurance company under the omnibus coverage provided by the employer's policy. In affirming the resulting judgment against the defendant the court held:

'It is conceded, and the trial court recognized, that the driver had permission, in the first instance, to take and to use the car. He started out on the public streets of the city with both the possession and the operation of the car entrusted to him by the owner. The instructions clothed him with discretion--where he should go, the way by which he should go, the way by which he should return. The owner placed the wheel in his hands and sent him out on the highway, and before his hands had left the wheel and before the car was off the highway the accident had happened. * * * We are of the opinion that under the facts of the case and within the meaning of the policy such deviation from instructions as...