Seidman, J.c.c. (temporarily assigned).
This is a declaratory judgment action wherein plaintiff Harry G. Carr seeks a determination of coverage under a policy of automobile liability insurance issued by defendant insurer. By agreement of counsel the matters in controversy have been submitted to the court for decision on the basis of the pleadings, the deposition on file, the insurance policy and the memoranda of law.
The main issue presented is whether, under an automobile liability policy which covers a replacement automobile if the insured notifies the insurer thereof within 30 days following the delivery date, the insurer is obligated to defend the insured and pay any judgment that might be obtained in an action brought by a person injured in an accident involving the replacement automobile occurring beyond the 30-day period, the insured having notified the insurer of the acquisition of the automobile after the accident. The precise point involved does not appear to have been decided in any reported case in this State.
A secondary issue is whether notice of the accident was given to the insurer or its agent as soon as practicable.
The parties have stipulated that a policy of automobile liability insurance issued to plaintiff was in effect on August
5, 1967, when an accident occurred in which Julia Solan was injured. That the vehicle in question was not specifically described in the policy is also stipulated.
Although Julia Solan is joined as a party defendant, she has not participated actively in these proceedings.
In his complaint plaintiff alleges that he became the owner of a Chevrolet Corvair on or about July 14, 1967 (actually, the purchase was in April), and that on or about August 5 of that year, while operating the automobile, he was involved in an accident resulting in bodily injury to his passenger, Julia Solan. A negligence suit against plaintiff was instituted by the passenger and is now pending in the Law Division of this court. The complaint further alleges the issuance of the policy and the refusal of defendant insurer to defend the lawsuit and to pay any adverse judgment that might result.
State Farm disclaims any obligation to plaintiff, contending that while it had issued a policy of insurance to him, it was for another automobile, and plaintiff never made application for coverage on the Corvair. The insurer also alleges plaintiff's failure to give timely notice of the occurrence, in accordance with the terms of the policy.
It is not in dispute that for some years prior to the accident in question plaintiff had owned a standard policy of automobile liability insurance issued by State Farm. The one submitted to the court is for a six-month period commencing October 24, 1963, and renewable for like periods thereafter upon the payment of the premium. The described automobile is a 1963 Ford.
From plaintiff's deposition it appears that he occasionally bought used automobiles, worked on them to make them operable, and then either sold the automobile or kept it in replacement of or in addition to one he already owned. He bought the Corvair for $25 in April 1967, and in July, when it was operable, he took it for inspection. On the way back a head gasket blew and ...