Defendant-crossclaimant Earl H. Massey, Jr. (Massey) moves for summary judgment as to his second crossclaim against co-defendant Firestone Tire & Rubber Company (Firestone). This crossclaim seeks judgment requiring Firestone to pay any judgment which may be rendered against Massey, together with costs of defense.
The instant litigation arises out of a motor vehicle accident, which occurred on November 29, 1968 at approximately 2:30 A.M. Plaintiff was a passenger in a vehicle operated by Massey and owned by Firestone, which was in a collision with another vehicle.
Massey was employed by Firestone as a commercial salesman at the time of the accident. He was given a Firestone automobile for his business use and had permission to take this automobile home in the evening. Massey was told not to use the car for his personal use. Firestone had knowledge that Massey had used the company automobile on two occasions for personal use and Massey was warned against such use. Firestone employee rules and regulations and Firestone operating policy also provided that company cars were not to be used for personal use under any circumstances. It is conceded that the accident involved in the instant litigation took place when Massey was driving the Firestone car on his own personal use. Firestone qualified and obtained a certificate of self-insurance under the provisions of N.J.S.A. 39:6-52 (Motor Vehicle Security-Responsibility Law).
The basis of Massey's motion is that Firestone as a self-insurer has the same liability and obligation as does any insurance carrier insuring motor vehicles. Massey's argument continues that as part of the insurance coverage provided by Firestone there must be the broad form omnibus coverage
set forth in N.J.S.A. 39:6-46, which provides in pertinent part:
A motor vehicle liability policy furnished as proof of financial responsibility as provided herein shall be a policy of liability insurance issued by an insurance carrier authorized to transact business in this State or, in the case of a person not eligible for insurance under the automobile Assigned Risk Plan, by an eligible surplus lines insurer to the person therein named as insured, or in the case of a nonresident, by an insurance carrier authorized to transact business in any of the States or provinces hereinafter stated. The policy shall:
(a) Designate, by explicit description or appropriate reference, all motor vehicles with respect to which coverage is intended to be granted thereby, and insure the insured named therein and any other person using or responsible for the use of any such motor vehicle with the express or implied consent of the insured, against loss from the liability imposed upon the insured or other person by law, for injury to or the death of a person, other than a person who is covered, as respects the injury or death, by any workmen's compensation law, or damage to property, except property of others in charge of the insured or the insured's employees, growing out of the maintenance, use or operation of the motor vehicles in the United States of America; [Emphasis added]
Firestone counters that as a self-insurer under the New Jersey Motor Vehicle Security-Responsibility Law it is not required by N.J.S.A. 39:6-46 to provide broad form omnibus coverage.
When Firestone applied for and received its certificate of self-insurance it must be considered that it did so with full knowledge and acceptance of all the provisions of applicable law. Such certificate merely allowed Firestone to carry its own risks instead of providing insurance in a private company. Cf. Annotation , 136 A.L.R. 900 (1942).
N.J.S.A. 39:6-46 requires that a liability policy include the broad form omnibus coverage cited supra. Our Supreme Court in Selected Risks Insurance Co. v. Zullo , 48 N.J. 362 (1966), held that an insurance policy offered as proof of financial responsibility must have the broad form omnibus coverage set forth in N.J.S.A. 39:6-46, and a policy which purports to have a more ...