Zacarias v. Allstate Ins. Co.

749 A.2d 394, 330 N.J. Super. 231
CourtNew Jersey Superior Court Appellate Division
DecidedApril 20, 2000
StatusPublished
Cited by9 cases

This text of 749 A.2d 394 (Zacarias v. Allstate Ins. Co.) 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
Zacarias v. Allstate Ins. Co., 749 A.2d 394, 330 N.J. Super. 231 (N.J. Ct. App. 2000).

Opinion

749 A.2d 394 (2000)
330 N.J. Super. 231

Joao ZACARIAS, Plaintiff-Appellant,
v.
ALLSTATE INSURANCE COMPANY and George Sincox, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued March 7, 2000.
Decided April 20, 2000.

Gary Alan Blaustein, Union, for plaintiff-appellant.

William H. Mergner, Jr., Cedar Knolls, for defendants-respondents (Leary, Bride, Tinker & Moran, attorneys; John G. Tinker, Jr., on the brief).

Before Judges PRESSLER, KIMMELMAN and CIANCIA.

The opinion of the court was delivered by KIMMELMAN, J.A.D.

Plaintiff Joao Zacarias appeals from the entry on May 15, 1998, of a summary judgment in favor of defendant dismissing plaintiff's complaint in which he sought a declaratory judgment that defendant was obligated to indemnify him with respect to *395 a negligence action brought against him by his wife for injuries sustained in an accident while riding in a twenty-foot outboard recreational boat owned by plaintiff.

At the time of the purchase of the boat in 1989, plaintiff obtained from defendant through its agent, co-defendant George Sincox, an "Allstate Boatowners Policy." The policy was renewed annually thereafter.

On November 27, 1995, Mrs. Zacarias filed an action against her husband, plaintiff, for damages for injuries she allegedly sustained because of his negligent operation of the boat. Defendant disclaimed coverage but agreed to provide a defense for plaintiff under a reservation of rights agreement. Plaintiff then filed a declaratory action against defendant to adjudicate coverage. The two suits were consolidated for discovery and trial.

Defendant moved for summary judgment asserting that, as an insured person under its policy, Mrs. Zacarias was precluded from coverage. Plaintiff countered that (1) the preclusion of his spouse from coverage was against public policy and that (2) defendant should be held responsible on the theory of respondeat superior because its agent had not brought the exclusionary clause to his attention.

While the record does not incorporate the declarations page of the policy, it does appear that the policy provides for "Watercraft Liability." However, under the heading labeled "Losses We Do Not Cover," the policy provides:

We do not cover bodily injury to an insured person or property damage to property owned by an insured person.

An "insured person" under the policy means "the person named on the declaration page as the insured and that person's resident spouse." Thus, under defendant's policy, Mrs. Zacarias, as a resident spouse, was an insured person for whom bodily injury was excluded from coverage.

Although not raised as a direct issue on appeal by plaintiff, it is suggested that insurance contracts are subject to special rules of interpretation since they are contracts of adhesion between parties of unequal bargaining power. Consequently, the policy in question should be construed to comport with plaintiff's reasonable expectation of coverage. Gibson v. Callaghan, 158 N.J. 662, 669-71, 730 A.2d 1278 (1999); Doto v. Russo, 140 N.J. 544, 555-57, 659 A.2d 1371 (1995).

However, we find the language of defendant's policy to be free from ambiguity. The words of the policy are to be given their plain and ordinary meaning. Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537, 582 A.2d 1257 (1990). As a resident spouse of the named insured, Mrs. Zacarias is an insured person. The clear language of the policy will not support any expectation of coverage for Mrs. Zacarias' accident. Therefore, the personal injury loss sustained by her is not covered.

Unless the abolition of interspousal immunity, Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978), has rendered the exclusion of Mrs. Zacarias from coverage contrary to the State's legislatively established public policy, we are bound by the pertinent ruling of the Supreme Court in Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 161 A.2d 717 (1960), where the Court said:

When the terms of an insurance contract are clear, it is the function of the court to enforce it as written and not to make a better contract for either of the parties.

[Id. at 43, 161 A.2d 717.]

See also State v. Signo Trading Int'l, Inc., 130 N.J. 51, 66, 612 A.2d 932 (1992) and Summit Assocs., Inc. v. Liberty Mut. Fire Ins. Co., 229 N.J.Super. 56, 63, 550 A.2d 1235 (App.Div.1988).

Following the Merenoff case, this court held that the exclusion from coverage of intra-family torts in a homeowner's policy was not void as against public policy. Foley v. Foley, 173 N.J.Super. 256, 414 A.2d *396 34 (App.Div.1980). We reasoned that there is no public policy that requires a homeowner to obtain an insurance policy protecting him/her against actions that might be brought against him/her by anybody. Id. at 259, 414 A.2d 34. See also Horesh v. State Farm Fire & Cas. Co., 265 N.J.Super. 32, 36-37, 625 A.2d 541 (App. Div.1993) (following Foley, supra, and validating a similar exclusionary clause applying to resident relatives of the insured).

We may not analogize this matter to the pattern of liability insurance coverage for automobiles. In the case of automobiles principally garaged in this state, the Legislature has mandated compulsory automobile liability insurance coverage. N.J.S.A. 39:6A-3. Because of this mandate, claims brought by members of the named insured's household may not be excluded from coverage. N.J.S.A. 39:6A-4. In Weitz v. Allstate Ins. Co., 273 N.J.Super. 548, 551-52, 642 A.2d 1040 (App.Div.1994), this court noted that the scope of coverage of a primary automobile insurance policy was controlled by law. However, we concluded that other insurance policies "unencumbered" by statutory requirements were governed by the plain language of the policy. Ibid.

In the absence of a legislative mandate requiring liability insurance coverage for boat owners, we may not establish a corresponding public policy in this case. Thus, because she was an "insured," the claim of Mrs. Zacarias was not covered. It is clear that the defendant's insurance policy, as written, does not run afoul of the expressed public policy of this State.

Plaintiff's alternative claim for negligence against the agent of defendant who sold the policy of insurance is likewise without merit.

For the foregoing reasons, the summary judgment rendered May 15, 1998, is affirmed.

PRESSLER, P.J.A.D., dissenting.

I respectfully dissent.

Once again we have before us a nonautomobile general comprehensive and liability policy of insurance containing an intra-family exclusion. Since automobile insurance is mandatory and intended to protect all motorists, we have had no difficulty in concluding that, as a matter of public policy, the insurance contract may not exclude coverage for the named insured's liability to members of his own family who sustain injury as a result of his negligence. Kish v. Motor Club of Am. Ins. Co., 108 N.J.Super. 405, 261 A.2d 662 (App.Div.), certif. denied, 55 N.J. 595, 264 A.2d 68 (1970). See also Horesh v. State Farm Fire & Cas. Co., 265 N.J.Super. 32, 37, 625 A.2d 541 (App.Div. 1993).

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