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Tooker v. Hartford Accident and Indemnity Co.

Decided: May 7, 1974.

VINCENT TOOKER, JR., AND ALLSTATE INSURANCE COMPANY, PLAINTIFFS-APPELLANTS,
v.
HARTFORD ACCIDENT AND INDEMNITY COMPANY, DEFENDANT-RESPONDENT, AND JOSEPH PIORKOWSKI AND ELIZABETH ORLANDO, AN INFANT BY HER GUARDIAN AD LITEM, ALEX ORLANDO, AND ALEX ORLANDO, INDIVIDUALLY, DEFENDANTS



Collester, Lynch and Michels. The opinion of the court was delivered by Michels, J.A.D.

Michels

Plaintiffs Vincent Tooker, Jr. and Allstate Insurance Company (Allstate) instituted this action to have Tooker declared an additional insured under a family automobile liability policy issued by defendant Hartford Accident and Indemnity Company (Hartford) to defendant Joseph Piorkowski.

The suit arises as a result of Hartford's refusal to defend or indemnify Tooker, who was involved in an automobile accident while driving an automobile owned by Piorkowski with the permission of Piorkowski's son Albert. Tooker was insured under a policy issued by Allstate which paid the judgment recovered against him by the passenger in the vehicle. The trial court held, without making any specific

findings of fact, that there was no coverage under the Hartford policy, and, in effect, that Tooker was not an additional insured thereunder, and entered judgment against Allstate and Tooker. They appealed, contending that Tooker was an additional assured under the terms of the Hartford policy because: (1) Albert had implied permission from his father to use the car, and therefore Albert could give permission to Tooker, a second permittee, and alternatively, (2) that since Albert was a resident of the household, and therefore an insured under the Hartford policy, he had the right to give initial permission to Tooker.

Albert, who was 18, resided with his father even though he was in military service stationed at Fort Dix, New Jersey. He frequently came home on leave on weekends and used his father's car. Whenever he asked his father for permission to use the car, permission had always been granted. On the night of the accident, however, Albert took the car without asking permission because at the time his father was asleep, and he apparently did not wish to disturb him. The keys for the car were kept on the refrigerator at all times, and consequently Albert did not have to awaken his father to get the keys. Albert apparently had been told by his father on previous occasions that he should not take the car unless he had permission. His father did not know that Albert took the car and testified that he had not given Albert permission to take the car on the day of the accident.

Albert took the car, picked up his friend Tooker and went to a party. While at the party Tooker asked Albert for the keys to the car in order to take home a girl whom he had met at the party. Albert gave Tooker the keys, and while Tooker was driving the girl home, the accident occurred, resulting in injury to her and subsequently this suit.

The Hartford Family Automobile Policy provides in part:

3. Persons Insured : The following are insureds under Section I:

(a) With respect to the owned automobile,

(1) the named insured and any resident of the same household,

(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 ...


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