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Chicago Insurance Co. v. Security Insurance Co.

Decided: August 3, 1970.

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



Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

Plaintiffs appeal from a declaratory judgment holding that a policy of liability insurance, issued by respondent Security Insurance Company of Hartford (Security) to Murray Brothers, Inc., did not extend coverage to an accident in which Stanley Zeidner (Zeidner) was involved on June 3, 1966.

On the day in question Zeidner was an employee of Murray Brothers, Inc. (Murray), a corporation of which his father was the principal owner. Although he drew his salary exclusively from Murray, his employment required him to render services to other corporations, including Murray Realty Ltd., controlled by his father.

Late in the afternoon of June 3, 1966 he was involved in an accident which resulted in the institution of several suits against him. At the time of the accident he was driving a rented Dodge automobile because the company-owned car, which he generally used, had recently been stolen. The rental had been made in the name of Murray, on its credit card. While en route to one of Murray Realty's properties on Mulberry Street, Newark, he came to the intersection of Edison Place and Broad Street and found his way blocked by traffic. There was a bus immediately ahead of him. Eventually, he got out of the Dodge and walked past the bus to where he found a car stopped in a position that prevented the movement of the bus, and the vehicles behind it, into and along Edison Place. The car belonged to defendant Charles Beverly, but its only occupant at the time was a young boy. Zeidner got into the Beverly car with the intention of moving it so that traffic could proceed. As he attempted to start it the car went out of control and, after striking two vehicles and two pedestrians, ended up against a wall.

Plaintiff Chicago Insurance Company (Chicago) had issued an automobile liability policy which extended coverage to Zeidner's operation of both the Dodge and the Beverly car. Security had issued a comprehensive public liability policy to "Murray Bros. Inc. Et. al.," Zeidner's employer, which covered Murray and its affiliated companies for rented as well as owned vehicles. By its policy it contracted to pay on behalf of the insured all sums which the insured should become legally obligated to pay as damages for injuries sustained by any person caused by accident, and arising out of the ownership, maintenance, or use of any automobile.

In this declaratory judgment action the two insurance companies sought an adjudication as to their obligations with reference to the damages sustained by third persons in the accident in question. The trial judge, in a written opinion, held that Security's policy, while covering the operation of the rented Dodge, did not extend coverage to Zeidner's operation of the Beverly vehicle as he attempted to move it. We affirm.

Both plaintiffs urge, in substance, that the "use" of the rented Dodge, covered by Security, extended to the efforts of Zeidner to remove the Beverly car which was obstructing traffic and preventing the movement of the Dodge down Edison Place. Thus, the core question before us is whether the use of the Dodge extended to Zeidner's activities after he left it and attempted to operate the Beverly car. If Zeidner's attempt to operate the Beverly car be found to amount to a use of the insured vehicle (the Dodge), the issue remains as to the apportionment of the liability between Chicago and Security.

The rule is well settled that if the controlling language of a policy will support two meanings, one favorable to the insured and the other favorable to the insurer, the interpretation sustaining coverage will be applied. Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur , 35 N.J. 1, 7 (1961). The courts are bound to protect the insured to the full extent that any fair interpretation will allow. Kievit v. Loyal Protect.

Life Ins. Co. , 34 N.J. 475, 482 (1961). Where the policy provision in question relates to the inclusion of persons other than the named insured within the protection afforded, a broad and liberal view is to be taken of coverage, whereas if the clause in question is one of exclusion and exception, designed to limit protection, a strict interpretation is in order. Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, supra , 35 N.J. at 8. More specifically, the language of the omnibus clause of a policy is to be construed broadly in favor of the insured and injured persons to effectuate a strong legislative policy of assuring financial protection for innocent victims of automobile accidents. Indemnity Ins. Co., etc. v. Metropolitan Cas. Ins. Co. of N.Y. , 33 N.J. 507, 512-513 (1960). However, it appears to be universally recognized that causal relationship or connection must exist between the accident or injury, and the use of a vehicle, in order to support the conclusion that the accident arose out of the "ownership, maintenance or use" thereof. This is so even though the use of the vehicle need not be the direct and efficient cause of the injury sustained. Panhandle Steel Products Co. v. Fidelity Union Casualty Co. , 23 S.W. 2d 799 (Tex. Civ. App. 1929).

By its policy, Security contracted to cover Zeidner's operation of rented automobiles such as the Dodge here involved. In holding that Zeidner's operation of the Beverly car did not amount to a use of the Dodge, the trial judge found Federal Insurance Co. v. Forristall , 401 S.W. 2d 285 (Tex. Civ. App. 1966) to be factually apposite. In that case defendant had parked his car immediately behind another car at the country club. When he came to leave, he found that someone had parked a car directly behind him so that movement of his vehicle was impossible. He thereupon elected to move the car ahead of him by releasing the gear shift and, with the help of another, attempting to push ...


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