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Chicago Insurance Co. v. Security Insurance Co.

Decided: May 23, 1969.

CHICAGO INSURANCE COMPANY, A CORPORATION AND STANLEY ZEIDNER, PLAINTIFFS,
v.
SECURITY INSURANCE COMPANY OF HARTFORD, A CORPORATION, MURRAY BROTHERS, INC., HELEN WEST, SOPHIE FILIPSKI, JOHN A. HARRIS AND CHARLES BEVERLY, DEFENDANTS



Herbert, J.s.c.

Herbert

Plaintiffs sue for a judgment declaring what insurance coverage applies to the liabilities of Stanley Zeidner for damages resulting from an automobile accident in which he was involved on June 3, 1966. By counterclaim defendant Security Insurance Company of Hartford demands similar relief.

On June 3, 1966 Stanley Zeidner's father was the principal owner of defendant Murray Brothers, Inc. Stanley was an employee. The senior Zeidner was also principal owner of Murray Realty Co., Inc. and certain other companies. It was part of Stanley Zeidner's duties to collect rent and do other chores on occasion for Murray Realty Co., Inc., although he drew his salary from the more active company, Murray Brothers, Inc. Late in the afternoon of June 3 he was going on business to a building of the real estate company located on Mulberry Street in Newark. He was driving a rented Dodge automobile because the company-owned car which was treated as his, more or less exclusively, had been recently stolen. The rented car had been procured from a commercial company and had been rented in the name of Murray Brothers, Inc. on a credit card issued to that company.

At or near the point in Newark where Edison Place intersects the easterly side line of Broad Street, Stanley Zeidner had to bring the rented car to a stop because he found that vehicles ahead of him were not moving. Immediately in front of him was a bus which was at standstill. He got out of the rented car and went around to the front of the bus to investigate. There he found an automobile so parked as to prevent vehicles from moving easterly along Edison Place, the path which Stanley planned to take in order to get to the

Mulberry Street address. This parked car was owned by defendant Beverly. There was no driver in it, but it was occupied by a young boy. In the absence of the driver of the Beverly car Stanley Zeidner got into it, took the wheel and undertook to move it to a position which would permit traffic to flow along Edison Place. When he put the Beverly car in motion an accident followed which resulted in personal injuries to defendants West and Filipski and damages to the automobiles of defendants Harris and Beverly.

If Stanley Zeidner had been at the wheel of the rented Dodge automobile and had so operated it -- rather than Beverly's car -- as to cause the accident, then insurance coverage for Stanley would be furnished by the policy of defendant Security Insurance Company. That policy was issued to Murray Brothers, Inc. and affiliated companies including Murray Realty Co., Inc. The policy broadly states the undertaking of the insurance company as an obligation "to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * *." However, following the quoted language there is a definition of "insured" and insofar as pertinent here it reads:

"Any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * *"

There has been no argument made that Stanley Zeidner lacked permission to operate the rented car when he went on his rent-collecting assignment, but for plaintiffs, and particularly the Chicago company, it is argued that Stanley's unfortunate experience as driver of the Beverly car was such an extension of his use of the rented car that it should be covered by insurance as though the rented car, with Stanley at the wheel, had been the instrumentality which inflicted the damage. This argument is, of course, based upon the conception that clearing the planned route for the rented Dodge was so closely and necessarily related to the actual

use of that car as to be, in the eyes of the law, a part of that use.

I am not persuaded by plaintiffs' arguments. Stanley Zeidner might have waited for the driver of the Beverly car to appear and move it, as the driver of the bus immediately in front of the rented car was apparently doing. He might have maneuvered the rented Dodge out of its temporary cul-desac and taken another route to his destination on Mulberry Street. In short, the Beverly car was not a blockade on the only available road and one which Stanley Zeidner had to clear away himself if the road was to be opened to his rented car within any reasonable time.

A case close to the point is Federal Ins. Co. v. Forristall, 401 S.W. 2 d 285 (Tex. Sup. Ct. 1966). There one Vallee had parked his Pontiac automobile at the Beaumont Country Club. Defendant George Z. Forristall, at or about the same time, was driving a car owned by his father, with his father's consent and permission. He parked that car immediately behind Vallee's vehicle. Later, when defendant desired to leave the country club he found that he was unable to do so because the car he had driven to the club was parked between the Vallee Pontiac and another car, and in order to get space in which to move his car he entered the Vallee Pontiac and released the gearshift from park position. Then he and another pushed the Vallee vehicle, but did so with such ineptitude that it rolled down an embankment, crashed into a boathouse and went into the river. Vallee instituted suit against the Forristalls, and the Forristalls sought a defense from Gulf Insurance Company. Gulf's policy provided liability coverage for injury to or destruction of property, etc., "arising out of the ownership, maintenance or use of the owned automobile * * *." The Forristalls maintained that Gulf ...


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