This is a declaratory judgment action brought by plaintiff for judgment declaring that an automobile which was involved in an accident was covered by an automobile liability policy issued by defendant. The parties have agreed that the issue involved be resolved upon the basis of the oral depositions of plaintiff and the oral depositions and testimony of Richard E. Lukins.
On September 2, 1966 plaintiff was involved in an automobile accident in Winslow Township, Camden County, New Jersey. As a result two suits have been instituted in the Law Division: Thomas Schiavone v. Gerald Davis and Edward Wojciechowski, Docket L -4613-66, and Gerald Davis and Nellie Davis v. Thomas Schiavone and Edward Wojciechowski, Docket L -26672-66. These two cases were consolidated by order of the court dated July 13, 1967.
After considering the depositions and the oral testimony I find that the following facts have been amply established by competent evidence.
In 1962 or 1963 plaintiff purchased a new 1963 half-ton Datsun pickup truck. Defendant Hardware Mutual Casualty Co. issued its policy No. 29-15708-01 to plaintiff insuring the pickup truck. The policy was renewed on its anniversary date May 1, 1966, for a one-year period to expire May 13, 1967. On June 23, 1966 plaintiff acquired a 1964 Chevrolet Monza, which was the automobile involved in the accident of September 2, 1966.
The Datsun broke down in September 1965; it has not been operational since that time and plaintiff has made no use of it. Plaintiff did not renew the registration of the
Datsun when it expired on March 31, 1966, but did on May 13, 1966 renew the insurance policy covering that car.
Plaintiff did not purchase another motor vehicle sooner than June 23, 1966 because of the lack of funds. The Chevrolet Monza was financed, and collision insurance thereon was secured by the dealer from an insurance company other than defendant.
On or about October 12, 1966 Richard E. Lukins, a representative of defendant, visited plaintiff at his home. Lukins obtained a statement from plaintiff which did not pertain to the manner in which the accident is alleged to have occurred or whether the Datsun was operational from the date of the purchase of the Chevrolet to the date of the accident. During the visit he merely made a cursory observation of the Datsun located on the premises. No inspection of the Datsun or inquiry was made to determine whether it was operable. It is an uncontroverted fact that from before the purchase of the Chevrolet to November 14, 1968 (date of depositions) the Datsun was not operable because the radiator had been removed, the distributor cap was cracked and the brakes were defective. License plates were still on the Datsun on the date of Lukins' visit and they were not removed until two months later. Plaintiff failed to transfer the registration from the Datsun to the Chevrolet because the Datsun was registered as a commercial vehicle. Title to the Datsun remained at all times in plaintiff's name.
It is admitted that plaintiff failed to notify defendant of the purchase of the Chevrolet, and that he did not at any time notify defendant that the Datsun had become inoperable.
Plaintiff's contention is that although the vehicle was a newly acquired automobile, it was a replacement for the automobile described in the policy and therefore, under the terms of the policy, no notice was necessary. Defendant contends that the Chevrolet is a newly acquired automobile to which the policy does ...