Meyer v. USAA Casualty Insurance

81 A.D.2d 609, 437 N.Y.S.2d 710, 1981 N.Y. App. Div. LEXIS 11100

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 1981
• Status: Published

Opinion

— In an action for a declaratory judgment, defendant USAA Casualty Insurance Company appeals from a “resettled judgment nunc pro tunc” of the Supreme Court, Nassau County, entered September 24, 1980, which, inter alia, determined that a policy of automobile insurance issued by defendant USAA to defendant Carol L. Ward, insured defendant Gregg M. Ward with respect to an accident that occurred on July 2, 1978, in which the plaintiff’s intestate, Michelle C. Meyer, was killed in an automobile owned by defendant Eugene L. Ward and being operated by defendant Gregg M. Ward. Resettled judgment reversed, on the law, with costs payable by plaintiff, and it is declared that Gregg M. Ward is not insured pursuant to the policy issued by USAA Casualty Insurance Company to Carol L. Ward, with respect to the accident of July 2, 1978, and that USAA Casualty Insurance Company is not liable for any portion of any judgment which may be recovered by plaintiff against Gregg and Eugene Ward for the said accident. On July 2, 1978 Gregg M. Ward, while operating a 1975 Volkswagen owned by his brother Eugene Ward and insured with the Hartford Insurance Co., was involved in an accident in which plaintiff’s intestate, Michelle C. Meyer, a passenger in the Volkswagen, was killed. Gregg had been driving the Volkswagen with his brother’s permission. Plaintiff instituted suit against Gregg and Eugene Ward. Hartford offered plaintiff its full coverage of $10,000 under its policy issued on the Volkswagen. Plaintiff, contending that defendant USAA Casualty Insurance Co. (USAA) is secondarily liable under its policy issued to Carol L. Ward, the mother of Eugene and Gregg, who were residents of her household, for any potential liability in excess of $10,000, sued for a judgment declaring its rights under the USAA policy. Special Term rendered judgment, inter alia, declaring that Gregg Ward, who was an insured under the USAA policy, was operating a “non-owned automobile” within the terms of the USAA policy and therefore the USAA policy insured Gregg with respect to the July 2, 1978 accident. On appeal, USAA contends that it was error to hold that Eugene’s automobile was covered as a “non-owned automobile” within the terms of the policy. We agree. The USAA policy provides coverage for liability arising out of the “use of the owned automobile and any non-owned automobile”. In reference to nonowned automobiles, the following persons are insured: “the named insured” and “any relative, but only with respect to a private passenger automobile *** provided his actual operation *** is with the permission *** of the owner and is within the scope of such permission.” A “non-owned automobile” is defined as “an automobile *** not owned by or furnished for the regular use of either the named insured or any relative.” A “relative” is defined as “a relative of the named insured who is a resident of the same household.” Therefore, the policy clearly provides that a vehicle owned by a relative is not covered (see Liggett v Fahey, 34 AD2d 886, affd 30 NY2d 680; Green v Dawson, 165 NJ Super 52; Cox v Santoro, 98 NJ Super 360, 363-364). Since Eugene Ward was a “relative”, the Volkswagen owned by him was not a nonowned automobile covered by the policy. In view of our holding, we do net have to determine whether the Volkswagen was regularly furnished for Gregg’s use. Damiani, J. P., Gibbons, Hargett and O’Connor, JJ., concur.