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Butler v. Buenaga

Decided: September 26, 1969.

MARGARET BUTLER AND WILLIAM BUTLER, PLAINTIFFS-RESPONDENTS,
v.
MARY BUENAGA AND BONNER & BARNEWELL, INC., A CORPORATION, DEFENDANTS. MARY BUENAGA, THIRD PARTY PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, V. PEERLESS INSURANCE COMPANY, THIRD PARTY DEFENDANT-APPELLANT AND CROSS-RESPONDENT, AND OHIO CASUALTY INSURANCE GROUP AND WEST AMERICAN INSURANCE CO., THIRD PARTY DEFENDANTS-RESPONDENTS



Goldmann, Lewis and Matthews. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

This case concerns coverage under automobile liability insurance policies. Third-party defendant Peerless Insurance Company (Peerless) appeals from an order for summary judgment in favor of Mary Buenaga on her third-party complaint and from an order dismissing a similar third-party complaint and cross-claims against third-party defendants Ohio Casualty Insurance Group and West American Insurance Co. (Ohio Casualty). Mary Buenaga cross-appeals from that portion of the summary judgment which was in favor of Ohio Casualty.

Preliminarily we note that the trial court's determinations were interlocutory and that this court has not heretofore granted leave to appeal. See R. 2:2-3, formerly R.R. 1:2-1,

2:2-1. See also Sullivan, J.A.D., "Interlocutory Appeals," 92 N.J.L.J. 161 (1969), and the authorities therein collected. The appeals are therefore subject to dismissal.

With the consent of all parties, however, we permitted argument on the merits and then, with reluctance, we decided on our own motion to grant leave to appeal nunc pro tunc. In doing so we emphasize for the benefit of the Bar that in the future we may not follow such a course. Moreover, it should be noted that, in a situation where an appeal has been improvidently filed, respondent has a responsibility to the court to file a timely motion to dismiss the appeal.

We turn now to the critical facts of the case. On May 5, 1967 Mary Buenaga was operating a 1966 Oldsmobile owned by Bonner & Barnewell, Inc. (Bonner Company), the employer of her husband, Henry Buenaga. An accident resulted in personal injuries to plaintiff Margaret Butler, a passenger in the vehicle. The latter, and her husband per quod , instituted the present negligence action against the driver and owner. The Buenagas forwarded the summons and complaint to Peerless, Bonner Company's insurance carrier, whose policy obligated it to insure "* * * any other person while using an owned automobile * * * with the permission of the named insured, provided his actual operation * * * is within the scope of such permission * * *." Peerless undertook to represent Bonner Company and disclaimed coverage on the ground that Mary Buenaga was an unauthorized operator of the insured vehicle.

The Buenagas who owned a Volkswagen then looked to Ohio Casualty, the insurers of that car, for coverage under their policy which provided for insurance to the following persons:

(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 the actual use thereof is with the permission of the owner; * * *

The policy defined "non-owned automobile" 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." (Emphasis added).

Ohio Casualty undertook the defense of Mary Buenaga. It engaged in discovery proceedings and thereafter expeditiously disclaimed coverage on the ground that the vehicle operated by her at the time of the accident was furnished to her husband for his regular use and that, under the terms of its policy, coverage was excluded.

As a result of those disclaimers, Mary Buenaga filed a third-party complaint against Peerless and Ohio Casualty seeking a judicial determination that each defend her in the original litigation, satisfy any judgment arising therefrom and indemnify her for costs and attorney's fees incident to her defense and in the prosecution of her third-party action. In its answer Peerless cross-claimed against Ohio Casualty. After a hearing on ...


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