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Lendway v. Muse

Decided: April 15, 1964.

ADELE LENDWAY AND ERNEST LENDWAY, PLAINTIFFS,
v.
GWENDOLYN M. MUSE AND H. ROGERS MUSE, DEFENDANTS AND THIRD-PARTY PLAINTIFFS-RESPONDENTS, V. HOME INDEMNITY COMPANY, THIRD-PARTY DEFENDANT-APPELLANT



Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d. Sullivan, J.A.D., concurs in the result.

Conford

On cross-motions for summary judgment the Law Division held third-party defendant Home Indemnity Company ("Home Indemnity" hereinafter) liable to indemnify defendants Muse, who are also third-party plaintiffs, on a claim for damages by plaintiffs in respect of an automobile collision near the Muses' home. Liability was based on a comprehensive homeowners' personal liability insurance policy issued by Home Indemnity to the Muses. The prime point at issue is whether the location of the accident falls within the coverage of the policy. The trial judge held that it did, and Home Indemnity appeals.

It further appears from a stipulation of facts agreed upon by the parties that defendants Muse were covered for this accident by an automobile liability insurance policy issued by Aetna Insurance Company. The real party in interest on this appeal is therefore the latter company, which seeks through defendants to compel the sharing by Home Indemnity of the burden of any liability which may be imposed against it as a result of any recovery awarded plaintiffs against defendants.

Defendants own and reside at premises situate at 62 Pinelyn Road in Glen Rock. The Home Indemnity policy was issued in respect of that property. The premises occupy the northwest corner of the intersection of Pinelyn Road and Hillman Avenue. The dwelling fronts on Pinelyn Road, an east-west thoroughfare, but the attached garage faces Hillman Avenue, a north-south street, ingress and egress to and from the garage being along an east-west driveway leading to Hillman Avenue. On the occasion involved, Mr. Muse backed his wife's car out of the driveway and then onto Hillman Avenue, still backing in a northerly direction on that street for a short distance. He then drove forward, southerly, along Hillman Avenue, intending to drive directly through the intersection thereof with Pinelyn Road, when he collided in about the center of the intersection (about 75 feet from the point of forward movement of the vehicle) with the automobile of plaintiffs which was being driven in an easterly direction on Pinelyn Road.

The homeowners' policy implicated here provides for an exclusion of liability in relation "To the ownership, maintenance, operation, use, loading or unloading of (1) automobiles while away from the premises or the ways immediately adjoining, * * *." The precise question presented, thus, is whether at the time of the accident the Muse car was away from the premises or the ways immediately adjoining the premises.

There is no fair doubt that both Hillman Avenue and Pinelyn Road are public streets which, at least at some points, are ways immediately adjoining the premises insured. Cristal v. American Casualty Co. , 107 N.J.L. 394 (Sup. Ct. 1931); Aetna Casualty & Surety Co. v. Fireman Fund Ins. Co. , 40 Misc. 2 d 813, 244 N.Y.S. 2 d 159 (Sup. Ct. 1963); Public Service Mutual Insurance Co. v. Jacobs , 161 N.Y.S. 2 d 791 (Sup. Ct. 1952), affirmed 282 App. Div. 1041, 126 N.Y.S. 2 d 903 (App. Div. 1953), leave to appeal denied 283 App. Div. 696, 128 N.Y.S. 2 d 532 (Ct. App. 1954). Contra: Roach v. Soles , 120 F. Supp. 400 (N.D. Cal. 1954) (seems

wrongly decided). But we find no reported case dealing with liability for an intersection accident in relation to a corner premises and exclusory policy language like that in this contract of insurance (which language seems to be in common use in such policies).

The New Jersey case closest in point is Cristal v. American Casualty Co., supra. This involved a policy insuring a garage owner for liability for injuries received by anyone "within the garage or on public ways immediately adjoining the same," with an endorsement in relation to a non-employee injured "within the building walls of the premises * * * or on the ways immediately adjoining such premises." The injured party there was struck while passing on foot along the opposite side of the street by an automobile which ran unattended from the garage into, upon and across the street. In the opinion sustaining a judgment for plaintiff the court said:

"The contract indemnifies against accidents happening on a public way immediately adjoining the property. Belmont avenue is a single public way from one exterior line thereof to the other, and, where the accident happens upon any part of the street immediately in front of the property described in the policy, it is an accident which happens upon a public way immediately adjoining that property." (107 N.J.L. , at p. 397)

What the court in Cristal had in mind by its phrase, "immediately in front of the property described in the policy," was more specifically, and we think in substantial accord with the same construction of "ways immediately adjoining the premises," articulated by the New York court in General Accident Fire & Life Assur. Corp. v. Woeffel , 7 Misc. 2 d 952, 161 N.Y.S. 2 d 794 (Sup. Ct. 1957). The court stated with approval the construction of the policy there contended for by the company as follows:

"[T]hat area and only that area contained within the geometrical figure formed by the intersections of the building line of any premises in question, the extensions (from each end of that building line) of the lot lines of such premises and either the curb line or the building line across the ...


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