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Mazzilli v. Accident & Casualty Insurance Co.

Decided: May 8, 1961.

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



For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.

Francis

[35 NJ Page 2] The issue presented here requires a construction of the clause of a liability insurance policy which extends coverage to a spouse of the named assured if she

is a resident member of the household. At a trial in the Superior Court, Law Division, a jury determined on the facts that she qualified as such resident. The insurer, Accident & Casualty Insurance Company, appealed and we certified the matter before it was heard in the Appellate Division.

The saga of the case in the courts is a long one. It may be traced in Mazzilli v. Selger, 23 N.J. Super. 496 (App. Div. 1952); 11 N.J. 593 (1953); 13 N.J. 296 (1953); Mazzilli v. Accident & Cas. Co., etc., 45 N.J. Super. 137 (App. Div. 1957); 25 N.J. 54 (1957); 26 N.J. 307 (1958).

Recital of the facts relevant to this proceeding is necessary in order to bring the problem into understandable focus. Adam and Frances Selger were married on October 3, 1937. A son, Kenneth, was born of the marriage in 1939. In 1944 Selger acquired a 2.46-acre tract of land on Cedar Avenue in Secaucus, New Jersey. Title was taken in the name of a corporation, but this was later held to be a device to avoid his wife's dower right. The property was shown on the tax map as Lot 2A, Block 50, on Cedar Avenue. It was not identified there by a specific street number. A four-room bungalow located on the tract became the Selgers' home in November 1944. Selger gave this house the number 836 Cedar Avenue for mail purposes because the next house on the street was 834. The family consisted of Adam, Frances, their son Kenneth, and one Jack Phillips, a son of Mrs. Selger by a former marriage.

Either before they moved into the bungalow (for which Adam Selger provided the furniture) or soon thereafter, they made plans to build another house for themselves on the property. In December 1945, however, before it was finished, Selger separated from his wife and son. Upon completion sometime in 1947, he moved into the new house which was 150 feet away from the bungalow. No separate lot was established for the new building; no lot lines were ever marked out on the tax map or otherwise; no fence or other physical boundaries were created. The 2.46-acre

tract remained as a unit which contained the two houses. According to Mrs. Selger, about a year after Adam began occupancy of the new building, he arbitrarily took the street number 836 Cedar Avenue which had been used for their home since 1944 and bestowed it on the house he was occupying. At the same time he redesignated the bungalow as 880 Cedar Avenue. Selger's recollection as to when this transfer took place was not clear. He remembered moving into the new house in 1947 and that both houses had the same street number for a time; whether for six months, he could not recall.

Selger did not live in the bungalow with his wife after December 1945. She remained there with their son who apparently had the freedom of both places. Selger testified that he took care of Kenneth on many occasions; that he was "in and out," and that this was "all one place where the entire family was living." He provided and maintained the bungalow where Mrs. Selger continued to live and he supported her and Kenneth there until long after the incident which produced this litigation.

In the latter part of 1947 Mrs. Selger instituted an action for separate maintenance for herself and for support for Kenneth, and to have her dower interest declared in the premises on which they were both living, as well as in some other properties of her husband, title to which had been taken in corporate names. Pendente lite monetary relief was granted and in addition Selger was directed to continue providing the bungalow and the fuel for heating it for his wife and son. No specific order was made granting custody of Kenneth to his mother. He is referred to in the support order as "in her custody." It seems obvious that no need existed to deal expressly with the matter of visitation rights by the father. The boy was with his mother, just 150 feet away in the bungalow, and Selger had ready access to him at all times. The companionship of the boy and his father was not a source of controversy. It is reasonable to say from the record that Selger was content to have his son

cared for by the mother and to maintain them both on the premises in close proximity where he could observe that care, and exercise a measure of supervision and influence over him.

Some time prior to April 21, 1949, plaintiff Louis Mazzilli was engaged by Selger to rebuild a fence for his horse corral at "836 Cedar Avenue." It is perfectly clear that this address was considered by Selger as descriptive of the entire tract and was not limited to his house and the area immediately surrounding it. Although the full dimensions and location of the fence are not disclosed by the record before us, it does appear that at the time of the incident resulting in Mazzilli's injury he was working on a portion of the fence close to the rear of the bungalow occupied by Mrs. Selger and Kenneth.

On April 21, 1949 Kenneth, who was then not quite ten years of age, obtained a shotgun belonging to his half-brother and fired it at Mazzilli out the bedroom window, seriously wounding him. As a consequence, Mazzilli later obtained a $10,000 verdict against Mrs. Selger because of her negligence in leaving the gun where it was accessible to a child of such immature years.

On May 20, 1947 Adam Selger had obtained from defendant Accident & Casualty Insurance Company a contract of liability insurance, described therein as a "Comprehensive Single Limit Personal Liability" policy. The period of coverage was three years -- until May 20, 1950 -- and during that period the insurer agreed to pay "on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law * * * for damages * * * because of bodily injury * * * sustained by any person * * *." The policy contains a number of specific exclusions from coverage listed under the title "Exclusions." But it also contains under the caption "Insuring Agreements" a broad inclusory clause extending the protection to persons other than the named insured. Under that provision the coverage is extended to

include the named assured's "spouse and relatives and wards of either" if "residents of the household." Such persons are insured against the consequences of their negligent acts or omissions "anywhere in the world."

The policy is curiously hybrid in nature. Although it covers the named and additional insureds anywhere in the world, it seems to provide specific protection also against damages imposed by law arising from negligence in the operation or maintenance of certain premises. The declarations contain the "description of premises where any Insured maintains a residence" as "836 Cedar Ave., Secaucus, New Jersey." (Emphasis added) They say also that the number of residence employees of all Insureds hereunder is not over two, and that "No Insured maintains a residence * * * at any other premises." Residence employee means "an employee whose duties are incidental to the ownership, maintenance or use of the premises, including the maintenance or use of automobiles or teams, or who performs duties of a similar nature not in connection with the Insured's business." Premises are defined as "all premises where the Named Insured or his spouse maintains a residence and includes garages and stables incidental thereto and individual or family cemetery plots or burial vaults * * *." The impression gained from a reading of the entire contract is that the insurer undertook to blend into one instrument a general public liability premises policy and a comprehensive personal liability policy.

The premises where any insured maintained a residence are described as 836 Cedar Avenue. The record is anything but clear as to whether on May 20, 1947 that address related to both the new house and the bungalow or had been taken over by Selger for the new house and 880 Cedar Avenue assigned arbitrarily by him to the bungalow. In any event, he owned the entire tract or premises as a unit, and we have no doubt (as in fact counsel for the carrier concedes) that an accident happening anywhere thereon as the result of negligence chargeable to Selger would be within the ambit

of the policy. As has been noted above, when Mazzilli was injured he was working in close proximity to the bungalow. No one suggests that he was ...


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