[94 NJSuper Page 320] This is an action for declaratory judgment to determine whether defendant, Utica Mutual Insurance Company, is liable under a contract of insurance issued
to defendant Joseph Santoro. There are factual issues, but before they were reached the parties agreed to submit to this court the question of whether there is coverage on the face of the policy. To this end they entered into a stipulation of facts.
The genesis of this litigation was an automobile accident which occurred on August 16, 1964 when Donald Santoro, Joseph Santoro's son, was operating a vehicle which belonged to his sister Marion Santoro, with her permission. He was not, however, acting as her agent. At the time of the accident Elizabeth Jane Cox was a passenger. The car left the highway and came into contact with a tree, causing Miss Cox severe, permanent and disfiguring injuries. A law suit then ensued, Cox v. Santoro, Docket No. L-6044-65, which resulted in a jury verdict against Donald in the total amount of $116,914.09.
At the time of this accident Donald and Marion lived in the home of their parents, Mr. and Mrs. Joseph Santoro. Unquestionably all were residents of the same household.
Prior to the accident defendant Utica Mutual Insurance Company (hereafter Utica) had entered into a contract of insurance with Joseph covering a 1963 Volkswagen. This policy set a $50,000 limit of liability applicable to all claims for bodily injury to one person, with a further coverage on medical payments limited to $1,000.
Also in existence at the time of the accident was an automobile liability policy issued by Utica to Marion Santoro as named insured covering a 1962 Chevrolet automobile owned by her. This policy had a limit of liability of $25,000 for bodily injury to one person and medical payments coverage limited to $1,000.
Following the accident and prior to the institution of the negligence action, medical payments were made to Elizabeth Jane Cox by defendant through Joseph M. Cashin Associates, insurance adjusters and agents of Utica, of $2,000. Utica obviously paid the maximum medical payments coverage of $1,000 on each of the above named policies.
Utica agrees there is no question but that there is coverage under Marion's policy to the extent of $25,000, but denies it is liable under Joseph's policy for an additional $50,000 to be applied to this judgment.
The policies are identical in form. Under "PART 1 -- LIABILITY" the policies contain the following language, which is applicable to the problem here:
"Persons Insured: The following are insureds ...