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Petronzio v. Brayda

Decided: December 8, 1975.

AMY PETRONZIO, AN INFANT BY HER GUARDIAN AD LITEM, FRANK PETRONZIO, AND FRANK PETRONZIO, INDIVIDUALLY, PLAINTIFFS,
v.
ITALO BRAYDA, DEFENDANT-THIRD PARTY PLAINTIFF-RESPONDENT. LOUISA NOSENZO, DEFENDANT, V. LINDA PETRONZIO, THIRD PARTY DEFENDANT, AND SUSSEX COUNTY MUTUAL INSURANCE COMPANY, THIRD-PARTY DEFENDANT-APPELLANT



Lynch, Ackerman and Larner. The opinion of the court was delivered by Larner, J.A.D.

Larner

On June 19, 1971 the infant plaintiff Amy Petronzio was on the premises of her grandmother Louisa Nosenzo. At the same time Italo Brayda (Brayda) was mowing the lawn of Mrs. Nosenzo. He operated a riding mower in reverse and it came in contact with plaintiff's foot, causing severe injuries.

The infant plaintiff and her father filed a complaint against Brayda, the operator of the mower, and Mrs. Nosenzo, its owner. Both defendants filed answers and cross-claims against each other for contribution and indemnification.

Pursuant to appropriate order defendant Brayda filed a third-party complaint seeking a declaratory judgment to construe the homeowners insurance policy issued by Sussex County Mutual Insurance Company (Sussex) to Nosenzo as the named insured so as to encompass coverage for Brayda as an additional assured. The main action was bifurcated

and stayed and the third-party action was tried before the court without a jury.

The clause in the Sussex homeowners policy upon which Brayda relied for coverage provides under the category of Definitions:

(a) Insured means * * *

3(b) With respect to any vehicle to which this insurance applies, any employee of an insured while engaged in the employment of the insured.

After a hearing which explored the facts underlying the relationship between Brayda and Nosenzo and the use of the mower, the judge held that the policy provision in question was ambiguous and that it should therefore be construed to afford rather than deny coverage. He relied on Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur , 35 N.J. 1 (1961), and other similar precedents.

Both parties concede on this appeal that the motorized mower involved in the accident was a vehicle covered by the policy. Their sole controversy centers upon the issue whether Brayda was an employee of Nosenzo within the meaning and intent of the foregoing policy provision.

In considering the propriety of the trial judge's ruling it is necessary to summarize the operative facts pertaining to the use of the mower by Brayda.

Brayda was the son-in-law of the assured, Nosenzo, and resided with his family next to the assured's premises. The assured had been a widow for a number of years. Out of a feeling of affection for his mother-in-law and in fulfillment of a promise he had made to his father-in-law before his death, Brayda regularly aided Mrs. Nosenzo with some of the household chores. Included in his activities was the regular care of the grounds involving mowing the lawn and trimming the shrubbery.

Mrs. Nosenzo owned the riding mower which was used by Brayda in mowing her lawn as well as his own. However, Brayda maintained this ...


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