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Cox v. Santoro

Decided: December 29, 1967.

ELIZABETH JANE COX, AN INFANT, ETC., AND CHARLES COX, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
MARION SANTORO, DONALD SANTORO, JOSEPH SANTORO, DEFENDANTS, AND UTICA MUTUAL INSURANCE COMPANY, DEFENDANT-RESPONDENT AND THIRD-PARTY PLAINTIFF-APPELLANT, AND U.S. MUTUALS AGENCY, THIRD-PARTY DEFENDANT-RESPONDENT



Conford, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

[98 NJSuper Page 362] Plaintiffs appeal from judgments which held that defendant Utica Mutual Insurance Company (Utica) was not liable on a policy of automobile insurance issued to defendant Joseph Santoro through the third-party defendant U.S. Mutuals Agency (U.S. Mutuals), for damages arising from injuries sustained by the infant plaintiff

Elizabeth Jane Cox by reason of the negligent operation of an automobile by defendant Donald Santoro.

The facts herein are not disputed -- those concerning the issue of coverage were stipulated. On August 16, 1964 Donald Santoro was operating a Chevrolet automobile belonging to his sister Marion Santoro, with her permission. The car left the highway and struck a tree resulting in serious injury to his friend, Elizabeth Jane Cox, who was a passenger. Elizabeth and her father thereafter instituted suit which resulted in verdicts against Donald totaling $116,914.09.

Marion Santoro's automobile was covered at the time of the accident by a policy issued to her by defendant Utica through U.S. Mutuals where she was employed. Defendant Utica concedes that it is liable to plaintiffs under that policy to the extent of $25,000, its upper limit for bodily injury to one person. By the present suit for declaratory judgment plaintiffs seek to recover from Utica under a second policy issued by it to Joseph Santoro, the father of Donald and Marion, which provides for coverage up to $50,000 for one person.

The policy issued to Joseph covered a 1963 Volkswagen and contained the usual clauses affording coverage for damages arising from the operation of that vehicle. In addition, it contained the following clause referable to the operation of "non-owned" automobiles:

"Persons Insured: The following are insureds under Part 1:

(b) with respect to a non-owned automobile,

(1) the named insured,

(2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, * * * of the owner and is within the scope of such permission, * * *."

A non-owned automobile was defined in the policy as "an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other

than a temporary substitute automobile," and a relative was defined as "a relative of the named insured who was a resident of the same household." It is not contended that the automobile being driven by Donald at the ...


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