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Mazzilli v. Accident and Casualty Insurance Co.

Decided: May 3, 1957.

LOUIS MAZZILLI, PLAINTIFF-RESPONDENT,
v.
ACCIDENT AND CASUALTY INSURANCE COMPANY OF WINTERTHUR, SWITZERLAND, DEFENDANT-APPELLANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.

Freund

The defendant appeals, by leave of this court, from an interlocutory order denying its motion for summary judgment against the plaintiff. The action was brought on a personal liability insurance policy for damages for injuries arising out of the use of certain premises in Secaucus, New Jersey. The single issue here in controversy is whether Frances Selger is an additional insured under the provisions of the policy which was issued by the defendant to her husband, Adam.

Only brief reference need be made to the facts which are undisputed: Adam Selger was the owner of a three-acre tract of land on which were two houses, about 200 feet apart; he lived in one, and Frances, his wife, from whom he was legally separated, and their infant son, Kenneth, resided in the other. On April 21, 1949 Kenneth, then nine years of age, found a shotgun in his mother's house, pointed it out of the window at the plaintiff who was working on the premises, and after some "horseplay" fired the gun, injuring the plaintiff.

The plaintiff filed an action against Kenneth, Frances and Adam, which, on motion, was dismissed by the trial court as to Frances and Adam, but the jury returned a verdict against Kenneth for compensatory and punitive damages. On appeal from the dismissal, the Appellate Division affirmed, Mazzilli v. Selger , 23 N.J. Super. 496 (1952); the Supreme Court affirmed as to the father, Adam, but reversed as to Frances, and ordered a new trial as to her liability, 13 N.J. 296 (1953).

Before the new trial was had, the plaintiff, unable to satisfy his judgment against Kenneth, instituted an action

against the present defendant insurance company on the personal liability insurance policy it had issued to Adam covering him and "residents of the household." On defendant's motion summary judgment was granted. The trial court considered two clauses of the policy, the first of which reads as follows:

"The unqualified word 'Insured' includes the Named Insured and, if residents of the household, his spouse and relatives and wards of either * * *."

The policy limits coverage to accidental injuries and provides:

"Assault and battery shall be deemed an accident unless committed by or at the direction of the Insured."

The trial court found (1) that "the son Kenneth Selger was not a resident of the household of the assured, his father," within the intendment of the quoted clause because he was in the custody of his mother living in a house other than that in which his father resided, and hence was not an "Insured" within the terms of the policy; and (2) assuming that he were an "Insured," the injury was not covered because it was willfully and maliciously inflicted, the shooting was not accidental, but deliberate and intentional. No appeal from that judgment was taken.

The new trial against Frances ordered by the Supreme Court, 13 N.J. 296, having resulted in a judgment of $10,000 in plaintiff's favor, he seeks by the present action to recover the amount from the defendant insurance company on the ground that Frances was covered under the liability policy issued to Adam. From a denial of defendant's motion for summary judgment, it appeals on the alternative grounds that (1) the findings in the previous suit under the policy as to Kenneth's liability are res judicata here and require a judgment in its favor, and (2) whether or not these findings are res judicata , it is ...


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