McDonald v. Home Ins. Co.
| Decision Date | 10 November 1967 |
| Docket Number | No. A--1223,A--1223 |
| Citation | 97 N.J.Super. 501,235 A.2d 480 |
| Parties | Robert E. McDONALD and Sarah S. McDonald, Plaintiffs-Appellants, v. The HOME INSURANCE COMPANY, a New York corporation, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Sheldon B. Brand, Somerville, for appellants (Wharton, Stewart & Davis, Somerville, attorneys, Richard H. Thiele, Jr., Somerville, on the brief).
Richard J. Badolato, Newark, for respondent (Schneider & Morgan, Newark, attorneys).
Before Judges GAULKIN, LEWIS and KOLOVSKY.
The opinion of the court was delivered by
GAULKIN, S.J.A.D.
The McDonalds sued the Home Insurance Company (Home) upon a 'Homeowner's Policy' alleging that thereunder Home was obliged to defend them against an action by Walter Edward Dorman, Sr., individually and as general administrator and administrator Ad prosequendum of the estate of Walter Edward Dorman, Jr., deceased (Dorman) for damages for the death of his son. Home's motion for summary judgment was granted and the McDonalds appeal.
Dorman's action against the McDonalds alleged that they were the parents of an unemancipated infant son, Mickey, who resided with them; that they 'did exercise control over the said Mickey * * *' whom they knew 'to be a careless and reckless and incompetent driver' and 'to operate motor vehicles with wilful, wanton and reckless disregard for the safety of others' and 'to consume alcoholic beverages in excess and to operate motor vehicles while under (their) influence * * *' and 'to be irresponsible towards the property of his own and others, and to disregard the law and the rights and safety of others'; that the McDonalds 'had the ability to control * * * Mickey * * * and knew * * * of the necessity for exercising said control * * * and * * * had the opportunity * * *' to do so; that 'they failed to exercise reasonable care * * * to control * * * Mickey * * * in that they caused and permitted the purchase of an automobile for the said Mickey,' registered in his name, knowing that his use of the automobile 'was likely to result in the injury to another as a natural and probable consequence'; that the McDonalds were negligent in that 'they took no reasonable or timely steps to protect the said * * * Dorman, Jr. * * * from the negligence of * * * Mickey * * * or from his known propensities and bad driving habits * * *,' and as a result Mickey, with Dorman, Jr. as a passenger, drove into a tree, killing the latter.
The policy provided that Home would 'defend any suit against the insured * * * even if such suit is groundless, false or fraudulent * * *.' The McDonalds called upon Home to defend them against the Dorman suit, but Home refused on the ground that the policy provided it did not apply 'to the ownership, maintenance, operation, use, loading or unloading of automobiles while away from the premises * * *.'
The McDonalds then retained counsel to defend them against the Dorman action. In due course that action was settled for...
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