[88 NJSuper Page 537] Plaintiff Vito Capece, a service station operator, obtained a final judgment against Bartholemew Giordano arising out of an accident which occurred on October 25, 1960, in which he was struck by an automobile which had
been entrusted to him for servicing by Linda Magnano, the owner, as it was being driven onto a service lift by Giordano. The facts concerning the accident are fully set forth in a prior opinion, Capece v. Allstate Ins. Co. v. State Farm, etc., Ins. Co., 86 N.J. Super. 462 (Law Div. 1965).
Judgment was entered against Giordano and in favor of Capece for $9,359 damages. The present suit was thereupon instituted against Allstate Insurance Company (Allstate), Giordano's carrier, and resulted in a summary judgment against Allstate. Allstate now seeks indemnification or contribution from State Farm Mutual Automobile Insurance Company (State Farm) which covered the Magnano car.
The present opinion deals with the interpretation to be accorded an exclusionary provision in State Farm's policy which provides that:
"This insurance does not apply under: * * * (g) coverage A(1) * * * or (2) to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured." (Emphasis added)
State Farm urges that, since Capece was responsible for the operation of the Magnano vehicle from the time it was entrusted to him for servicing, he thereby became a person responsible for the use thereof who came within the definition of an "insured" under the insuring portion of the policy (the proofs indicate that Capece had been standing in front of the lift guiding Giordano as he drove the car onto the lift so that it could be worked upon), and hence was an "insured" excluded from coverage by the clause in question.
Briefly put, the question here presented is whether the exclusionary clause precludes State Farm's liability on behalf of a negligent insured (Giordano) to a second insured (Capece) who has sustained injuries by reason of such negligence. There appears to be no New Jersey case bearing directly upon the point. However, Allstate contends that it is controlled by Maryland Cas. Co. v. N.J. Mfrs., etc., Ins. Co., 48 N.J. Super. 314 (App. Div. 1958), affirmed 28 N.J. 17
(1958). It urges that the exclusionary clause applies only to one who qualifies as an insured and is seeking the protection of the policy; hence, since Giordano is the only insured seeking the protection of the policy, Capece, even though qualifying as an additional insured, was entitled to recover on the policy for injuries sustained by reason of Giordano's negligence.
In the cited case Kelly, the injured person, had driven his employer's truck to the marine terminal of the South Jersey Port Commission (Commission) to pick up a load. One Cherry, an employee of the Commission, was one of a group of men assigned to unloading cargo from a barge onto the truck. Through Cherry's negligence, Kelly was injured during the unloading process. Maryland Casualty Company (Maryland) had in force a comprehensive general liability policy insuring the Commission. The trucking company which employed Kelly was covered by a liability policy issued by New Jersey Manufacturers Casualty Insurance Co. (Manufacturers). Kelly sued Cherry and the Commission. They, in turn, demanded that Manufacturers assume the defense of the case since the accident had occurred during "loading and unloading," a situation covered by Manufacturers' policy. Upon Manufacturers' refusal to defend, Maryland did so and eventually settled Kelly's claim.
Maryland thereupon sued Manufacturers for indemnification or contribution. Manufacturers countered that, under an exclusionary clause of its policy, it was not liable for injuries to any employee of an insured who was covered by workmen's compensation. Since Manufacturers insured the trucking company and since Kelly was the latter's employee, and hence covered for workmen's compensation, it was contended that it was not liable. A judgment of the Law Division sustaining this defense was reversed on appeal, the Appellate Division holding:
"* * * The clear intent of the exclusionary language of the policy was to relieve Manufacturers of responsibility under the policy where an employee of an insured ...