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Meissner v. Aetna Casualty and Surety Co.

April 19, 1984

RACHEL J. MEISSNER, PLAINTIFF,
v.
THE AETNA CASUALTY AND SURETY COMPANY, DEFENDANT



Gascoyne, J.s.c.

Gascoyne

[195 NJSuper Page 463] The parties agree that there is no dispute as to the facts and that the matter is ripe for disposition as a matter of law by way of cross-motions for summary judgment. On October 6, 1979 the Aetna Casualty and Insurance Company (Aetna) issued a standard family automobile policy covering a 1971 Mercedes

Benz owned by plaintiff. On July 26, 1980, during the period of coverage, plaintiff's 15-year old son took the Mercedes without her permission while she was asleep. The boy did not intend to permanently deprive his mother of her car. During a pursuit by the Town of Dover police, the boy crashed the vehicle into the pursuing police car resulting in damage to both vehicles. There was no collision coverage under plaintiff's policy.

Plaintiff now seeks to recover damages to her automobile under the comprehensive coverage provisions of the policy, captioned part II -- physical damage, which in part provides:

(1) To pay for loss other than by collision to the owned automobile or to a non-owned automobile. For the purpose of this coverage breakage of glass and loss caused by . . . theft or larceny . . . shall not be deemed to be a loss caused by collision.

The sole issue for resolution by the court is whether the action by plaintiff's son constitutes a "theft or larceny" within the meaning of the comprehensive coverage. There are no reported cases in New Jersey deciding this issue and in those jurisdictions where the question has been resolved, courts have reached different results.

Aetna contends that although this plaintiff sustained a loss, the loss does not fall within the terms of the policy since under the stipulated facts the taking by her son did not constitute a "theft or larceny." In order to determine what constitutes a theft or larceny under New Jersey law, it is appropriate to look to the criminal statutes for aid in interpretation.

N.J.S.A. 2C:20-3(a) provides:

A person is guilty of a theft if he unlawfully takes, or exercises control over, movable property of another with purpose to deprive him thereof. [Emphasis supplied]

N.J.S.A. 2C:20-1(a)(1) defines deprive as:

to withhold or cause to be withheld property of another permanently or for so extended a period as to appropriate a substantial portion of its economic value or with purpose to restore only upon payment of reward or other compensation.

The foregoing represents the elements of common-law larceny; i.e., a felonious taking by trespass and carrying away of personal property without ...


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