Selected Risks Insurance v. Zullo

225 A.2d 570, 48 N.J. 362, 1966 N.J. LEXIS 175
Supreme Court of New Jersey·Decided December 23, 1966·Published·Cited by 2 cases

Opinions

The opinion of the court was delivered by

Proctor, J.

This case concerns coverage under the omnibus clause of two automobile liability insurance policies issued by plaintiff, Selected Risks Insurance Company.

At the trial in the Law Division of plaintiff’s suit for declaratory judgment, counsel for the plaintiff made an opening statement to the jury asserting that defendant Richard Keeter, the driver of an automobile involved in an accident, was not a person insured under the omnibus clause in policies issued by plaintiff to George A. Blumberg, the owner of the automobile, and defendant Marvin Keeter, Richard’s father. [365]*365Other defendants in this suit are the representatives of passengers injured in the accident and the Unsatisfied Claim and Judgment Fund.1 On motions of defendants at the conclusion of this opening, the trial court held that Richard fleeter was an insured under both policies and entered judgment for defendants. The Appellate Division affirmed. We granted certification. 47 N. J. 85 (1966).

The facts before the Court show that on April 2, 1963 Richard fleeter, a minor, while driving an automobile owned by Blumberg on the Englishtown-Jamesburg Road, Monmouth County, had an accident. As a result Richard Yuhas, John Palladino, and Benjamin Zullo, passengers in the ear, were injured, Zullo fatally. Actions have been brought against Blumberg, as owner, and Richard fleeter, as driver, for injuries suffered by Yuhas and for the death of Zullo. In addition, claims have been made on behalf of Palladino, and for property damage allegedly sustained by Charles Godbolt and the New Jersey Bell Telephone Company.

The two policies issued by plaintiff and in force on the day of the accident contained the omnibus clause which follows:

“Persons insured:
* * * * * * * *
(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,
(b) with respect to a non-owned automobile,
(1) the named insured.
(2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission,
* * (Emphasis added)

[366]*366Under these provisions Richard Keeter is an insured under Blumberg’s policy if he is deemed to be operating the owned automobile “within the scope of such [Blumberg’s] permission,” and is an insured under his father’s policy if his operation of the non-owned automobile is deemed “within the scope of such [Blumberg’s] permission.”

On the day before the accident Richard Keeter and Blumberg agreed that Richard would pick up Blumberg’s ear at the Englishtown Post Office where Blumberg and Marvin Keeter were employed, drive it to the Keeter home, wash it, and drive it back to the post office. This car-wash arrangement had occurred previously. Richard picked up the car keys from Blumberg around 1:30 p. m. the next day, April 2, drove the car to his home and washed it. After the ear was washed, Richard and some friends who had been with him while the car was being washed, Palladino, Yuhas, and Zullo, all minors, started to return the car. However, on the way to the post office the boys decided to go for a soda. Richard drove out of town in a direction at right angles to the road to the post office, and the accident occurred about one mile out of town. It was the position of the plaintiff that this trip for a soda exceeded the authority given to Richard Keeter by Blumberg to operate the automobile, and therefore Richard was not a person insured under either policy because his use of the automobile was beyond the scope of permission given him by the owner, Blumberg.

The trial judge ruled on the authority of Matits v. Nationwide Mutual Ins. Co., 33 N. J. 488 (1960), that Richard Keeter was insured under the omnibus clause of both policies.

In Matits the omnibus clause involved was the standard form which is in wide use throughout the country and includes as persons insured: “* * * any person or organization legally responsible for the use of the described automobile provided the actual use was with the permission of the policyholder or such spouse.” The Court there determined that valid and substantial policy considerations dictated a reading [367]*367of this clause to extend coverage to any permittee of the owner who had “initial permission” to use the automobile:

“It is our view that these latter rules [conversion and minor deviation] making coverage turn on the scope of permission given in the first instance render coverage uncertain in many cases, foster litigation as to the existence or extent of any alleged deviations, and ultimately inhibit achievement of the legislative goal. We think that the ‘initial permission’ rule best effectuates the legislative policy of providing certain and maximum coverage, and is consistent with the language of the standard omnibus clause in automobile liability insurance policies.
Accordingly, we hold that 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.” Matits, supra, 33 N. J., at pp. 496-497.

The policy considerations and result of Matits were again considered with the same conclusions in Small v. Schuncke, 42 N. J. 407 (1964).

The plaintiff informs us that the omnibus clause here involved was changed in order to avoid the result of Matits. Indeed, examination of the Blumberg policy shows that the main part of the policy still contains an omnibus clause with the identical phrasing as that in Matits, and the different language here involved comes from an amendatory endorsement to the main part of the policy.

The plaintiff concedes that if the Matits rule applies, Richard Keeter is a person insured under the policies because Richard had initial permission to use the automobile. Plaintiff contends, however, that the changed language restricts the omnibus coverage to only those persons operating an automobile within the “scope of such permission” given by the owner and does not necessarily cover persons who have initial permission. Plaintiff argues that a jury question is presented whether Richard Keeter at the time of the accident was beyond the scope of Blumberg’s permission to use the automobile. In support of this contention plaintiff urges that the extended omnibus coverage dictated by the Matits rule is [368]*368not required in all policies by the statutes relating to the financial responsibility of motorists.

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Selected Risks Insurance v. Zullo, 225 A.2d 570, 48 N.J. 362, 1966 N.J. LEXIS 175 (N.J. 1966).

225 A.2d 570 (Selected Risks Insurance v. Zullo) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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