Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
[69 NJSuper Page 186] This is an appeal from a judgment entered by the Mercer County District Court on November 17, 1960 granting plaintiff's motion for a summary judgment. Plaintiff alleged in her complaint that on May 4, 1958 her infant daughter Carol sustained bodily injury while riding as a passenger in the automobile of one John Pouria. Consequently, plaintiff incurred medical expenses on behalf of her daughter in the amount of $966.75 during the first year from the date of the accident. The Pouria automobile was insured by a company other than defendant. The policy covering the Pouria automobile provided for medical payments coverage with a limit of liability for each person in the sum of $2,000. There was also in force a family automobile policy issued by defendant company to the plaintiff covering her automobile, which provided for medical payments, with a limit of $500 per person. Plaintiff claimed that under the provisions of the policy issued by defendant she was entitled to $193.35, or one-fifth of the medical expenses incurred during the first year following the accident. Defendant entered an appearance but did not file an answer. Cross-motions for summary judgment were then made, plaintiff's motion being supported by an affidavit which verified the allegations of the complaint. Defendant's motion was denied; that of plaintiff granted.
The crucial issue for determination is whether defendant's insurance policy was excess insurance as defendant contends, hence, not available to plaintiff unless the policy on the Pouria automobile was insufficient to defray her losses; or whether, as plaintiff urges and the trial court held, defendant's policy was concurrent insurance, and thus defendant was liable for its pro rata share of plaintiff's losses based on the proportion which its policy limits bore to the total coverage extended by both policies.
We are informed by counsel that their research has failed to disclose apposite judicial precedent in this relatively new field of insurance coverage, and we have found none.
The liability of the insurer for medical payments depends, of course, upon the construction of the particular language of the policy. See Annotation, 42 A.L.R. 2 d 983. The medical payments coverage provided by defendant's policy is expressed as follows:
"PART II -- EXPENSES FOR MEDICAL SERVICES COVERAGE C -- MEDICAL PAYMENTS
To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:
Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury,' caused by accident, while occupying or through being struck by an automobile.
Division 2. To or for any other person who sustains bodily injury, caused by accident, while occupying
(a) the owned automobile, while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured; or
(b) a non-owned automobile, if the bodily injury results from (1) its operation or occupancy by the named insured or its operation on his behalf by his private chauffeur or domestic servant or (2) its operation or occupancy by a relative, provided it is a private passenger automobile or trailer."
Certain definitions contained in Part I of the insurance policy have bearing on the question ...