Standard Acc. Ins. Co. v. Allstate Ins. Co.
| Decision Date | 01 March 1962 |
| Docket Number | No. A--722,A--722 |
| Citation | 178 A.2d 358,72 N.J.Super. 402 |
| Parties | STANDARD ACCIDENT INSURANCE COMPANY, a Corporation of the State of Michigan, authorized to engage in the business of insurance in New Jersey, Plaintiff-Respondent, v. ALLSTATE INSURANCE COMPANY, a corporation of the State of Illinois, authorized to engage in the business of insurance in New Jersey, Defendant-Appellant. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
John J. Gaffey, Newark, for appellant (Gaffey & Webb, Newark, attorneys).
H. Curtis Meanor, Jersey City, for respondent (Lamb, Langan & Blake, Jersey City, attorneys; H. Curtis Meanor, Jersey City, of counsel).
Before Judges GOLDMANN, FREUND and FOLEY.
The opinion of the court was delivered by
FREUND, J.A.D.
Defendant Allstate Insurance Company (Allstate) appeals from a declaratory judgment entered in the Superior Court, Chancery Division, in favor of plaintiff Standard Accident Insurance Company (Standard), finding that a second permittee was an additional insured under a policy issued by Allstate protecting the owner of the vehicle involved in the accident. Both companies had written automobile liability policies; Allstate's policy insured Einar Aslaksen; Standard's insured Fred H. Baker, Jr., and contained a clause providing for excess insurance only if there was other 'valid and collectible insurance.' Baker was involved in an automobile accident while driving Aslaksen's car with the permission of Aslaksen's son. The issue presented is whether Baker was an additional insured within the meaning of the omnibus clause of Aslaksen's policy, thus making Allstate liable for his defense, or whether Baker had to look to Standard, his own insurer.
The testimony indicates that Einar Richard Aslaksen is the son of Allstate's named insured. He and Baker were neighbors and school acquaintances for four or five years before September 1957, when they entered the Marine Corps. In March 1958, after their release from active duty, they continued to be good friends. On August 10, 1958, the day of the accident, both were 19 years of age. The Aslaksen family group consisted of young Aslaksen, his father and mother. The latter, however, did not drive.
In April 1956 when young Aslaksen obtained his driver's license the father owned a 1949 Pontiac automobile. He was given permission by his father rather infrequently to use the car principally for week-end social functions and for traveling to and from meetings of the Marine Corps Reserve in Dover, N.J. Each time he wanted to use the car he was required to ask for permission from his father. While stationed as a marine at Parris Island, South Carolina, he did not have the use of his father's car and did not return home until he had completed his six-month tour of duty. He was not sure if his father knew of his friendship with Baker before they entered military service.
In September 1957 Aslaksen (father) purchased a 1957 Oldsmobile. When young Aslaksen returned from Parris Island in March 1958, his father gave him the keys to the family's 1949 Pontiac. The son testified that at that time he received no instructions as to the use of the Pontiac.
There was a period of approximately five months between the day the car keys were handed over to the son and the day Baker had the accident. During that time the registration certificate was left in the Pontiac glove compartment and the father paid for its renewal. The son, however, bought all the gas and oil, attended to the general upkeep of the car and made necessary minor repairs. He drove the Pontiac to work every day and also used it for social purposes. He no longer asked his father's permission every time he wished to use the car since he now had what he described as a 'blanket permission.' In depositions before trial young Aslaksen, in answer to a question about instructions given him by his father after his return from service, said
'When I started to work my father told me that I was to use the car to go to work and for anything that I might have needed the car for in order so that I wouldn't get my hands on his new car.'
However, he stated that on one occasion his father had seen him driving a friend's car and had said, 'Well, just because you drive his car, that does not mean that you should loan my car to anybody else.' The son said of his father, 'I'll tell you for sure he did not say I could loan the car to anybody,' and 'He certainly did not relinquish the use of the car for me to let anybody else use it.'
Aslaksen (son) admitted he had been a passenger in Baker's Ford and had himself driven it when Baker was present. He could not remember whether he had driven it without being accompanied by Baker. The son acknowledged his father had met Baker after their release from service but could not remember whether the elder Aslaksen had seen the two young men together in the Pontiac. The father had never given any instructions that Baker was not to be a passenger in the car. The son stated he had loaned the Pontiac to Baker on only one occasion previous to the accident.
On Friday night, August 7, 1958, Aslaksen (son) was preparing to go to the shore for the weekend with a girl friend and her family. The Baker automobile at this time was in disrepair. By prearrangement, he drove the Pontiac to his girl's house, left it there and placed the keys in the milk box where Baker could find them. He had agreed with Baker that he could have the car the following night for a date. He could not remember whether Baker had asked for the use of the car or whether he had offered it to him, but he nevertheless gave him permission to use it. Baker was supposed to return the car to the girl's house on Saturday night. On August 10, while Baker was driving, he was involved in a collision with an automobile owned and operated by Elias H. Pinsker. When Aslaksen returned from the shore, he found the car 'a total wreck' in a Montclair garage. He was able to get the car released from the garage only by signing the certificate of ownership himself, even though the registration was in his father's name.
Baker's testimony essentially corroborated Aslaksen's, except that he stated young Aslaksen had asked him if he would like to borrow the car for the night. Baker said Aslaksen agreed to 'take the responsibility.' He stated at one point that he was not sure who was the registered owner of the Pontiac but later testified 'I was under the understanding that it was his (the son's) and it was not in his father's name.'
The elder Aslaksen testified to the same effect as his son regarding the limited permission given the son to use the only car in the family before he left for Parris Island. Aslaksen stated that upon his son's return
At one time (he was unable to recall the date) he told his son 'that I did not want him to loan it to anybody else, because I was not going to be involved, I did not want to be involved in any occurrence like what we have now.'
The father recalled that Baker had occasionally visited the Aslaksen's home and that the two young men would go out together. He was definite about the fact that Baker had not requested his permission to use the car on the weekend of the accident, nor had his son asked permission to loan it to Baker.
Subsequent to the accident the son purchased a 1938 Chevrolet with his own funds, placing the title to the car in his father's name. The Chevrolet was added to the father's current Allstate policy in place of the Pontiac.
Pinsker instituted an action against Baker and Aslaksen (father) to recover damages for personal injuries. When Standard made a demand on Allstate to defend and indemnify Baker as an additional assured, it refused. Whereupon Standard instituted the present declaratory judgment suit in the Superior Court, Chancery Division, seeking to have Baker declared an additional insured under the omnibus clause of the Allstate policy. The Pinsker suit was reached and tried prior to the determination of the present action, and resulted in a judgment of $4,085.19 against Baker.
The Chancery Division judge held that this case was controlled by the decision in Costanzo v. Pennsylvania Threshermen, etc., Ins. Co., 30 N.J. 262, 152 A.2d 589 (1959), whose facts he found to be very similar to those of this appeal and concluded that Baker was an additional insured under the omnibus clause of the Allstate policy.
Allstate argues that there was no evidence to establish permission by the father to Baker, the second permittee, to use the Pontiac and that the determination of the trial judge was contrary to the weight of the evidence. It also urges that a 'More Automobiles Than Operators' (MATO) endorsement to Aslaksen's policy relieved it from any responsibility for the payment of the judgment recovered by Pinsker against Baker.
Allstate's omnibus clause insured, among others, 'any other person with respect to the owned automobile, provided the actual use thereof is with the permission of the named insured.' Our Supreme Court has recently had occasion to extensively construe similar clauses contained in standard automobile liability insurance policies. Indemnity Ins. Co. v. Metropolitan Casualty Ins. Co., 33 N.J. 507, 166 A.2d 355 (1960); Matits v. Nationwide Mutual Ins. Co., 33 N.J. 488, 166 A.2d 345 (1960); Baesler v. Globe Indemnity Co., 33 N.J. 148, 162 A.2d 854 (1960); Costanzo v. Pennsylvania Threshermen, etc., Ins. Co., supra (30 N.J. 262, 152 A.2d...
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