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Liberty Mutual Insurance Co. v. O''Rourke

Decided: January 8, 1973.

LIBERTY MUTUAL INSURANCE COMPANY, A COMPANY, PLAINTIFF,
v.
KIERAN O'ROURKE, LOUIS GUNDLACH, FREDERICK BIFULCO, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF FREDERICK VINCENT BIFULCO, FREDERICK VINCENT BIFULCO, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A CORPORATION, STATE FARM FIRE AND CASUALTY COMPANY, A CORPORATION, ALL STATE INSURANCE COMPANY, A CORPORATION, AND FORD MOTOR COMPANY, A CORPORATION, DEFENDANTS



Stamler, J.s.c.

Stamler

[122 NJSuper Page 70] This matter is before the court on cross-motions for summary judgment requiring interpretation of an insurance policy in a declaratory judgment action. There is currently pending and awaiting this decision an action in the Law Division by an injured third party. On the return day of plaintiff's summary judgment motion, all defendants made cross-motions. This court, having been informed that the Law Division action was to be in the daily call on January 2, 1973, considered defendants' motions as timely made.

In this action Liberty named as defendants Kiernan O'Rourke, Louis Gundlach, Frederick Bifulco, Frederick Bifulco's infant son, State Farm Fire and Casualty Insurance Company, State Farm Mutual Automobile Insurance Company, Allstate Insurance Company and Ford Motor Company.

The following are the undisputed facts essential to a determination in this case:

On June 11, 1969, the wife of Bifulco had been driving her children home in the family's Ford automobile. The car suddenly stalled in front of the house where Gundlach resided. After unsuccessfully attempting to restart the vehicle, Mrs. Bifulco asked Gundlach to assist her. Gundlach determined that the car was out of gas, secured some from his home and put it in the gas tank. The car still would not start. Gundlach and his son-in-law, O'Rourke, decided that the carburetor needed priming. As Gundlach sat in the driver's seat turning the engine over, O'Rourke with head and hands under the hood poured gasoline into the throat of the carburetor. An explosion occurred, igniting the gasoline container. O'Rourke threw the container away from him and into the face and body of Bifulco's nine-year-old boy, who received severe and disfiguring injuries.

At the time of the incident there was in effect a policy of automobile liability insurance issued to the boy's father by Liberty, which provided coverage on the Ford in the amount of $300,000. Bifulco gave prompt notice of this incident to the company. At this late date Liberty disclaims coverage and asserts that any insurance coverage must come from Allstate, which issued an automobile policy to O'Rourke, and from State Farm Auto and from State Farm Fire, which issued, respectively, an auto and homeowner's policy to Gundlach.

The Liberty policy contained the following pertinent provisions:

Persons Insured

Under the Liability and Medical Expense Coverages, the following are insureds:

(a) With respect to an owned automobile,

(1) the named insured,

(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission. * * *

EXCLUSIONS

This policy does not apply: Under the Liability, Medical Expense & Accidental ...


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