On appeal from Salem County Court, Law Division.
Conford, Pressler and King.
Defendant Selected Risks Insurance Company ("Selected Risks") issued an automobile liability policy to Norwood and Virginia Dawson ("Mr. and Mrs. Dawson"). Their son, Norwood J. Dawson ("Norney"), a member of their household, was driving a car owned by his brother Mark, also a member of the household, and insured with GEICO, when an accident occurred in which plaintiff Reba Green was injured.
GEICO agreed that it was liable for the full $15,000 of its coverage and paid that amount into court. Plaintiffs, contending that Selected Risks was secondarily liable, moved for entry of a judgment and stipulation which would have provided that Norney had no personal liability for excess coverage and that plaintiffs could pursue their claim against Selected Risks. Selected Risks intervened, seeking a declaratory judgment that the auto involved in the accident was not covered by its policy. Such a declaratory judgment was granted defendant Selected Risks, and plaintiffs' motion for a judgment and stipulation was denied. Plaintiffs appeal and Selected Risks cross-appeals.
Plaintiffs contend: (1) it was error to find that Mark's auto was not the kind of "non-owned automobile" covered by Selected Risks' policy; (2) the statute governing liability insurance required coverage for this non-owned automobile; (3) it was error to find that Mark's auto was not covered as a "temporary substitute automobile" within the terms of the policy, and (4) it was error to deny plaintiffs' motion for a judgment and stipulation.
Selected Risks claims: (1) the judge erred when he found that Mark's car was owned by him rather than by his parents; (2) the judge refused to use certain expert testimony substantively
to prove that Mark did not own the car, and (3) it was error to hold that the car was used by defendant Norney with the permission of its owner.
We affirm. The auto was not the kind of non-owned automobile covered by the policy nor was it a temporary substitute automobile. The trial judge properly ruled that it was not insured by Selected Risks and correctly declined to enter the judgment and stipulation sought by plaintiffs.
The policy provides coverage for liability for injury arising out of "the ownership, maintenance or use of the owned automobile or any non-owned automobile." A non-owned automobile is defined as "an automobile * * * not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile." A temporary substitute automobile is considered to be an owned automobile and is defined as an automobile "not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile when withdrawn from normal use because of its breakdown, servicing, loss or destruction."
Contrary to defendant's contention on appeal, the judge properly ruled that the car involved in the accident was owned by Mark Dawson. There is sufficient credible evidence in the record to uphold that finding. State v. Johnson , 42 N.J. 146, 162 (1964). It is also clear that Mark Dawson was a "relative" as defined by the policy because he was not only related to the named insureds but was a resident of their household.
Because the car was owned by a relative it was excluded from the category of non-owned automobiles covered by the policy. In Cox v. Santoro , 98 N.J. Super. 360, 363-364 (App. Div. 1967), Donald Santoro was driving a car owned by his sister Marion. The injured plaintiff sought recovery under a policy owned by Marion's and Donald's father. This court concluded that the father's policy did not cover Marion's ...