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Ibberson v. Clark

Decided: January 8, 1982.

JANE A. IBBERSON, PLAINTIFF-RESPONDENT,
v.
ROBERT A. CLARK, DEFENDANT-RESPONDENT, AND ALBERT MOSER, JR., STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION (DIVISION OF MARINE SERVICES) AND INSURANCE COMPANY OF NORTH AMERICA, DEFENDANTS, AND AETNA CASUALTY & SURETY COMPANY, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Milmed, Joelson and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Plaintiff Jane A. Ibberson brought this action to recover damages for personal injuries sustained as a passenger in a motor boat owned by defendant Albert Moser, Jr. and operated by defendant Robert A. Clark which collided with a marker in Great Egg Harbor Bay on October 4, 1976. Plaintiff joined defendant Aetna Casualty & Surety Company (Aetna) seeking a declaratory judgment that Clark was insured under the liability provisions of a homeowner's policy issued by Aetna to Moser; Clark cross-claimed for the same relief. The coverage question was tried to a jury, but at the completion of the proofs the trial judge determined as a matter of law that coverage existed. This appeal was then filed, before any liability or damage questions were determined.

Although no objection has been raised by Clark or Moser, the notice of appeal is improper and ineffective, since the declaratory judgment did not dispose of all issues as to all parties. See Delbridge v. Jann Holding Co. , 164 N.J. Super. 506, 509

(App.Div.1978). Application should have been made for leave to appeal (R. 2:5-6; R. 2:2-3(b); R. 2:2-4), but the nature of the issues and the fact that they have been fully presented in briefs and argument justify our grant of leave to appeal nunc pro tunc , and we do so.

The declaratory judgment was entered upon the trial judge's determination as a matter of law that at the time of the accident Clark was operating the Moser motor boat with the permission of the owner and was therefore an insured under the following provision of the Aetna policy:

a. "Insured" means

(3) under coverage E -- Personal Liability and Coverage F -- Medical Payments to Others:

(a) with respect to animals or watercraft to which this insurance applies, owned by any Insured, any person or organization legally responsible therefor, except a person or organization using or having custody or possession of any such animal or watercraft in the course of his business or without the permission of the owner. . . .

Aetna argues here, as it did in the trial court, that the testimony presented a jury question as to whether Clark was or was not operating the boat with the requisite "permission." We agree with the trial court that the record established permission as a matter of law.

It was undisputed at trial that in 1971 or 1972 Moser and Clark established an arrangement by which Clark, a boat mechanic, performed the necessary maintenance and repair of the boat owned by Moser. In return for those services Clark was authorized by Moser to use the boat for test runs and occasional fishing. That arrangement was suspended in 1974 but revived in 1975, at which time Moser had purchased a new boat. Again Clark did the necessary maintenance on the boat without charge ...


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