Ferejohn v. Vaccari

876 A.2d 896, 379 N.J. Super. 82, 2005 N.J. Super. LEXIS 233
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 21, 2005
StatusPublished

This text of 876 A.2d 896 (Ferejohn v. Vaccari) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferejohn v. Vaccari, 876 A.2d 896, 379 N.J. Super. 82, 2005 N.J. Super. LEXIS 233 (N.J. Ct. App. 2005).

Opinion

The opinion of the court was delivered by

SKILLMAN, P.J.A.D.

This is an insurance coverage case.

On March 26, 1999, defendant Raymond Vaccari and his son, defendant Ryan Vaccari, purchased a 1967 Chevrolet Malibu. They each paid half the purchase price for the car, which was titled in the father’s name. Defendants did not register the car because it needed repairs, including the installation of seat belts, [85]*85before it could be operated on public streets. When the car was purchased, Ryan was sixteen years old and only held a learner’s permit. Raymond prohibited Ryan from operating the car on the road until he was a licensed driver but gave him the keys so he could repair the car in the driveway to the family’s home. Ryan kept those keys on his key chain. Raymond also allowed his son to operate the car in the driveway in connection with the repair work and to sit in the car with his friends and listen to music on the ear radio.

On the evening of April 9, 1999, Ryan went to a party with several of his friends and became intoxicated. After the party, he and plaintiff returned to his house, where they sat in the Malibu drinking beer and listening to music. In the early morning hours of April 10, 1999, Ryan retrieved the keys to his mother’s ear, which was blocking the Malibu, and moved it out of the way. His parents were asleep inside the house at the time, unaware of what he was doing. Ryan then drove the Malibu out of the driveway into the street at a high rate of speed with plaintiff in the front passenger’s seat. A short time later, he drove the car into a tree. Plaintiff suffered serious injuries in the accident.

Plaintiff brought this personal injury action against Ryan, Raymond and Raymond’s wife, Lydia. At the time of the accident, Raymond and Lydia had a personal automobile liability policy issued by third-party defendant New Jersey Manufacturers Insurance Company (NJM). This policy covered the two cars driven by Raymond and Lydia. Although the 1967 Chevrolet Malibu was not listed under the policy on the date of Ryan’s accident, the accident occurred within the thirty-day period allowed under the policy for adding an additional vehicle to the coverage.

When NJM disclaimed coverage, defendants filed a third-party complaint against NJM seeking a declaration that the automobile policy issued to them by NJM provided coverage for Ryan’s accident. Allstate Insurance Company, which’ provided uninsured motorist coverage under an automobile liability policy issued to [86]*86plaintiffs parents, subsequently intervened in the action in support of the third-party complaint.

The case was brought before the trial court by cross-motions for summary judgment. The court concluded in an oral opinion that the NJM policy provided liability coverage to Ryan because he was a permissive user of the Malibu. The court reasoned that Raymond had given Ryan permission to repair and otherwise use the car in the Vaccaris’ driveway, and that under Verriest v. INA Underwriters Ins. Co., 142 N.J. 401, 662 A.2d 967 (1995), this permission made Ryan a permissive user of the car who was entitled to coverage under the automobile liability policy NJM had issued to his parents.

After entry of the summary judgment disposing of the coverage question, the underlying personal injury action was settled for $225,000. The settlement is contingent upon an affirmance of the order determining that NJM provides coverage to Ryan for the accident, thus preserving NJM’s right to pursue this appeal. The consent judgment memorializing the settlement provides that if that order is reversed on appeal, plaintiffs uninsured motorist claim against Allstate will be arbitrated within sixty days.2

We conclude that, under Verriest, Ryan was a permissive user of the Malibu at the time of the accident that resulted in plaintiffs injuries, and therefore the NJM policy provides coverage to Ryan for his liability to plaintiff. Consequently, we affirm the summary judgment against NJM.

In Verriest, INA issued a business-automobile policy to a company owned by James H. that performed work on cars. 142 N.J. at 404-05, 662 A.2d 967. One of James H.’s employees was his cousin, Curley, who had recently moved to New Jersey. Id. at 404, 662 A.2d 967. James H. bought a car for Curley for $150 that Curley was supposed to repay. Ibid. After James H. bought the [87]*87ear, he immediately turned over the certificate of ownership and keys to Curley. Ibid. However, the car remained on James H.’s lot for the next two-and-a-half weeks because Curley lacked the money to repay James H. or to register the car. Ibid. During that period, Curley performed repair work on the car. Ibid. When James H. went out of state, leaving Curley in charge of his business, Curley removed two automobile dealer plates registered to a local automobile dealer from a locked drawer in James H.’s office and placed them on the car. Curley then went out in the car drinking with his friends, following which he was involved in a serious accident that resulted in the death of one person and serious injuries to another. Id. at 404-05, 662 A.2d 967. INA disclaimed coverage for Curley’s liability for the accident on the ground that even though the car was a “covered auto” under the policy issued to James H., Curley was not a “permissive user” at the time of the accident.

The Supreme Court rejected INA’s position and concluded that under the “initial permission” rule, Curley had James H.’s permission to drive the car at the time of the accident. Under this rule, “if a person is given permission to use a motor vehicle in the first instance, 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.” Id. at 411, 662 A.2d 967 (quoting Matits v. Nationwide Mut. Ins. Co., 33 N.J. 488, 496-97, 166 A.2d 345 (1960)). The Court further explained:

Under the initial permission rule only two questions must be answered to determine coverage. Was there permission to use the car initially? Did the subsequent use, while possession was retained, constitute “theft or the like?”
[Id. at 412, 662 A.2d 967 (quoting Small v. Schuncke, 42 N.J. 407, 413, 201 A.2d 56 (1964)).]

With respect to the first question, the Court stated:

“[T]he scope of the term ‘use’ is broad,” covering a wide variety of activity other than operating a vehicle on a public roadway.

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Verriest v. Ina Underwriters Insurance
662 A.2d 967 (Supreme Court of New Jersey, 1995)
French v. Hernandez
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Matits v. Nationwide Mutual Insurance
166 A.2d 345 (Supreme Court of New Jersey, 1960)
Nicholas v. Sugar Lo Co.
471 A.2d 44 (New Jersey Superior Court App Division, 1983)
Martin v. Rutgers Cas. Ins. Co.
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Jaquez v. National Continental Insurance
835 A.2d 309 (Supreme Court of New Jersey, 2003)
Rutgers Casualty Insurance Co. v. Collins
730 A.2d 833 (Supreme Court of New Jersey, 1999)

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Bluebook (online)
876 A.2d 896, 379 N.J. Super. 82, 2005 N.J. Super. LEXIS 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferejohn-v-vaccari-njsuperctappdiv-2005.