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Bartels v. Romano

Decided: October 26, 1979.

KATHRYN BARTELS, AN INFANT BY HER GUARDIAN AD LITEM DONALD J. BARTELS, MICHAEL BARTELS, AN INFANT BY HIS GUARDIAN AD LITEM DONALD J. BARTELS, DONALD J. BARTELS AND MAUREEN BARTELS, INDIVIDUALLY, PLAINTIFFS,
v.
CHARLES ROMANO AND SUE ANN ROMANO, DEFENDANTS AND THIRD-PARTY PLAINTIFFS-RESPONDENTS, V. NEW JERSEY MANUFACTURERS INSURANCE COMPANY, THIRD-PARTY DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Monmouth County.

Seidman, Michels and Devine. The opinion of the court was delivered by Devine, J.A.D.

Devine

By leave granted, third-party defendant, New Jersey Manufacturers Insurance Company (NJM) appeals from a summary judgment of the trial court ruling that it provide coverage, under a homeowner's policy, to defendants Charles and Sue Ann Romano in a pending negligence action.

It appears that the vehicle was parked in defendants' driveway and the Romano children were occupying it while awaiting their mother. In some manner the car was caused to roll backward. It struck the infant plaintiffs Kathryn and Michael Bartels, who were playing in the driveway, causing personal injuries.

At the time of the accident the Romanos were insured by Travelers Insurance Company (Travelers) under an automobile

liability policy with limits of $100,000, and by NJM under a homeowner's policy with limits of $25,000.

The injured minors and their parents filed suit against the Romanos. The complaint, as amended, was couched in five counts. The first and second counts charged defendants with negligent maintenance, operation and control of their motor vehicle; the third and fifth counts charged that defendants "so carelessly and negligently supervised or failed to supervise their infant children and other children under their care, custody and control so as to permit such children to occupy and operate the motor vehicle which occupation of said motor vehicle caused said vehicle to collide with infant plaintiff. . .." (Emphasis supplied.)

Through counsel assigned to the defense of the suit by Travelers, defendants filed a third-party complaint against NJM seeking an adjudication that the allegations of the amended complaint fell within the coverage provided by the homeowner's policy. On cross-motions for summary judgment the trial judge held that NJM was to provide exclusive coverage for the allegations set forth in the third and fifth counts; Travelers was to provide exclusive coverage for the allegations of the first and second counts, and coverage of the fourth count, seeking a per quod recovery only, was to abide the trial. We disagree with that portion of the judgment referable to the third and fifth counts and reverse.

The automobile policy obligated Travelers to pay damages for injury "arising out of the ownership, maintenance or use of the owned automobile."

The allegations of the third and fifth counts clearly implicate the "ownership, maintenance or use" provisions of Travelers policy. The NJM policy contains an exclusion:

This policy does not apply:

a. to bodily injury or property damage arising out of the ownership, maintenance, operation, ...


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