Tooker v. Hartford Acc. & Indem. Co.

• Decision Date: 07 May 1974
• Citation: 319 A.2d 743,128 N.J.Super. 217
• Parties: Vincent TOOKER, Jr., and Allstate Insurance Company, Plaintiffs-Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant-Respondent, and Joseph Piorkowski and Elizabeth Orlando, an infant by her Guardian ad Litem, Alex Orlando, and Alex Orlando, Individually, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 217

128 N.J.Super. 217

319 A.2d 743

Vincent TOOKER, Jr., and Allstate Insurance Company Plaintiffs-Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Defendant-Respondent and Joseph Piorkowski and Elizabeth Orlando, an infant by her Guardian ad Litem, Alex Orlando, and Alex Orlando Individually, Defendants.

Superior Court of New Jersey Appellate Division.

Argued Nov. 26, 1973.

Reargued April 22, 1974.

Decided May 7, 1974.

William P. Gilroy, Asbury Park, for plaintiffs-appellants (Campbell, Mangini, Foley, Lee & Murphy, Asbury Park, attorneys; William P. Gilroy on the brief).

William G. Marriott, Rumson, for defendant-respondent (Lane & Evans, Rumson, attorneys; William G. Marriott on the brief).

Before Judges COLLESTER, LYNCH and MICHELS.

The opinion of the court was delivered by

MICHELS, J.A.D.

Plaintiffs Vincent Tooker, Jr. and Allstate Insurance Company (Allstate) instituted this action to have Tooker declared an additional insured under a family automobile liability policy issued by defendant Hartford Accident and Indemnity Company (Hartford) to defendant Joseph Piorkowski.

The suit arises as a result of Hartford's refusal to defend or indemnify Tooker, who was involved in an automobile accident while driving an automobile owned by Piorkowski with the permission of Piorkowski's son Albert. Tooker was insured under a policy issued by Allstate which paid the judgment recovered against him by the passenger in the vehicle. The trial court held, without making any specific findings of fact, that there was no coverage under the Hartford policy, and, in effect, that Tooker was not an additional insured thereunder, and entered judgment against Allstate and Tooker. They appealed, contending that Tooker was an additional assured under the terms of the Hartford policy because: (1) Albert had implied permission from his father to use the car, and therefore Albert could give permission to Tooker, a second permittee, and alternatively, (2) that since Albert was a resident of the household, and therefore an insured under the Hartford policy, he had the right to give initial permission to Tooker.

Albert, who was 18, resided with his father even though he was in military service stationed at Fort Dix, New Jersey. He frequently came home on leave on weekends and used his father's car. Whenever he asked his father for permission to use the car, permission had always been granted. On the night of the accident, however, Albert took the car without asking permission because at the time his father was asleep, and he apparently did not wish to disturb him. The keys for the car were kept on the refrigerator at all times, and consequently Albert did not have to awaken his father to get the keys. Albert apparently had been told by his father on previous occasions that he should not take the car unless he had permission. His father did not know that Albert took the car and testified that he had not given Albert permission to take the car on the day of the accident.

Albert took the car, picked up his friend Tooker and went to a party. While at the party Tooker asked Albert for the keys to the car in order to take home a girl whom he had met at the party. Albert gave Tooker the keys, and while Tooker was driving the girl home, the accident occurred, resulting in injury to her and subsequently this suit.

The Hartford Family Automobile Policy provides in part:

3. Persons Insured: The following are insureds under Section I:

(a) With respect to the owned automobile,

(1) the named insured and any resident of the same household, (2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, * * *.

Under the express language of this clause, which is generally referred to as an 'omnibus clause,' the named insured and any resident of the same household are insureds under the Hartford policy. Any other person can only become insured when using the automobile with the permission of the named insured or his spouse if a resident of the same household whether that permission be expressed or implied. ¹ Thus, Albert, who is conceded by the parties to be a resident of his father's household, was an insured under the Hartford policy. He did not need permission from his father to use the car to obtain the protection of this policy.

However, if the clause is read literally, as contended by Hartford, while Albert would be an insured under the policy when he takes his father's car with or without permission or even contrary to his father's instructions, nevertheless, he could not give permission to a second user so as to extend coverage to that person. ² Such a result seems contrary to logic and the strong policy of this State for the liberal construction of liability insurance to effectuate the broadest range of protection to users of our highways. Matits v. Nationwide Mutual Ins. Co., 33 N.J. 488, 495, 166 A.2d 345 (1960); State Farm v. Zurich Am. Ins. Co., 62 N.J. 155, 168, 299 A.2d 704 (1973).

Our law is now well settled that in spite of the precise language of an omnibus clause which generally restricts coverage to any person using the automobile with permission of the named insured, if the first user in fact has permission from the named insured, lack of permission, whether express or implied, of such named insured for use by a later permittee is irrelevant to coverage, short of theft, or the like. See Odolecki v. Hartford Acc. & Indem. Co., 55 N.J 542, 550, 264 A.2d 38 (1970); State Farm v. Zurich Am. Ins. Co., Supra. In fact, in Indemnity Ins. Co., etc. v. Metropolitan Cas. Ins. Co. of N.Y., 33 N.J. 507, 166 A.2d 355 (1960), our Supreme Court has expressly held that even though the initial permittee was specifically instructed not to let anyone else drive the car, the second permittee was covered as an additional insured notwithstanding the violation of such instructions. In reaching this result the court held that the second permittee was covered since the car was being used for the purpose permitted by the named insured, stating:

Under the omnibus clause of its insurance contract, Metropolitan agreed to cover 'any person while using the automobile * * * provided the actual use is with * * * (the named Insured's) ...