Matthews, Fritz and Botter.
[135 NJSuper Page 364] New Jersey Manufacturers Insurance Company (NJM) appeals from a judgment declaring that the insurance policy which it issued to Jennie V. Leonard affords primary coverage for an accident which occurred while Nicholas Scibetta (Nicholas) was driving Mrs. Leonard's automobile. At the time Nicholas owned an automobile which was insured by plaintiff, Motor Club Fire & Casualty Company (MCA), whose policy covered Nicholas while operating
another vehicle. The principal questions sought to be determined in the action commenced by MCA were whether the NJM policy afforded coverage for the accident and, if so, which policy afforded primary coverage. The problem was created when Nicholas, who had been invited into the car as a passenger, took over the operation of the car and drove off after Mrs. Leonard was frightened into leaving the car by Nicholas' unusual behavior.
There is no substantial dispute of fact. Mrs. Leonard testified in the nonjury trial below, and her prior deposition, as well as that of Nicholas and Mrs. Scibetta, were placed in evidence.
On August 26, 1971, Mrs. Jennie Leonard, aged 63, was a neighbor of the Scibettas, whose son Nicholas was experiencing a serious emotional disorder. Nicholas was scheduled to see a psychiatrist that night. Mrs. Leonard was going to drive him there and decided that they should look for the office in the afternoon so that she would know her way. Mrs. Leonard was driving her car, and Nicholas and his mother, who went along, were in the front seat. Mrs. Scibetta was seated between Mrs. Leonard and Nicholas.
On the trip Mrs. Leonard made a wrong turn. She stopped for directions and then returned to the correct road. Suddenly Nicholas, in an agitated state, seized the steering wheel and started to climb over his mother toward the driver's seat. According to Mrs. Leonard's testimony he said, "Get out of this car, Jennie, get out of this car." Mrs. Leonard and Mrs. Scibetta both testified that they became very frightened. Mrs. Leonard testified, "It was like a shock. I never expected it, really." She testified that she put on the emergency brake and got out of the car because she was frightened. Mrs. Scibetta testified that she and Mrs. Leonard were "stunned" and "scared" and that Mrs. Leonard said, "Oh, my God," and stopped the car. Mrs. Scibetta kept telling Nicholas to stop, but he paid no attention to her. After getting out of the car, leaving her pocketbook behind and the motor running, Mrs. Leonard just stood there; she was
"stunned." She testified that Nicholas drove off and left her standing there. It all happened very fast.
Shortly after driving off Nicholas was involved in an accident. He struck another vehicle and a building. Mrs. Scibetta was injured and commenced an action against Nicholas. Suit papers were forwarded to NJM with the request that it defend Nicholas. NJM disclaimed coverage on the ground that Nicholas was not operating the vehicle with the permission of its insured. Thereafter, this action was instituted.*fn1
The trial judge held that the NJM policy afforded coverage for the accident while the car was operated by Nicholas.*fn2 His rationale was as follows: (1) the NJM policy (as well as the MCA policy) included as "persons insured" the named insured (Mrs. Leonard), residents of her household and "any other person using" the Leonard vehicle "with the permission of the named insured, provided the actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission"; (2) by the terms of the policy NJM agreed to pay "on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * * arising out of the ownership, maintenance or use of
the * * * automobile * * *"; (3) N.J.S.A. 39:6-46(a) and N.J.S.A. 39:6-48(b) require that an insurance policy insure "any other person using * * * any such motor vehicle with the express or implied consent of the insured, against loss * * * for injury * * * growing out of the maintenance, use or operation of the motor vehicle * * *"; (4) although "his [Nicholas'] use later on was converted or extended * * * into an operation * * * his use, nevertheless, continued." Accordingly, it was held that by operation of law the NJM policy was required to cover the accident resulting from the "continued use" of the vehicle by Nicholas after he became the operator of the vehicle.
Whether Nicholas was operating the vehicle with the permission of Mrs. Leonard was dealt with by the trial judge in the following manner: Mrs. Leonard knew that Nicholas' mental condition was "something less than stable," and when she got out of the car she "knew that Nicholas Scibetta was attempting to place himself in the driver's seat behind the steering wheel." The trial judge further reasoned that the driver of a vehicle is presumed in law to be operating it as the agent of the owner; that the owner must rebut that presumption, and that Mrs. ...