On appeal from the Superior Court, Appellate Division, whose opinion is reported at 193 N.J. Super. 522 (1984).
For affirmance in part, reversal in part and remandment -- Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi, Stein, Clifford and Pollock. Opposed -- None. Clifford, J., concurring. Justice Pollock joins in this concurrence.
Plaintiff, Robert L. Mondelli, sustained personal injuries when struck by a hit-and-run vehicle while he was leaning against his girlfriend's car. He seeks recovery under the uninsured-motorist (UM) provisions of two policies, each furnishing UM coverage in the amount of $15,000. One policy was issued to plaintiff's father by defendant State Farm Mutual Automobile Insurance Company (State Farm), and the other, issued by defendant Nationwide Mutual Insurance Company (Nationwide), covered an automobile owned by Jay M. Chandler, father of Mondelli's girlfriend.
As called for by the provisions of each policy, plaintiff's claim for the UM coverage of both policies went to arbitration. The arbitrator awarded plaintiff $19,000 damages but specifically declined to determine which policy was primary and which was secondary. Thereafter plaintiff filed this suit in which he sought a judgment against both carriers for the $19,000. The trial court made a specific finding -- a critical one, as will hereafter appear -- that plaintiff was in fact "leaning on" the girlfriend's vehicle "when an unknown hit-and-run motorist came along and struck him." Although it concluded that plaintiff's contact with the Chandler vehicle in that fashion was insufficient to qualify plaintiff as an occupant as that term is defined in the Nationwide policy, the trial court nevertheless held, without extended discussion or analysis, that Nationwide's UM coverage was secondary to State Farm's and that therefore State Farm was liable for $15,000 (the extent of its UM coverage) of plaintiff's damages and that Nationwide should pay the remaining $4,000.
On Nationwide's appeal and State Farm's cross-appeal the Appellate Division, by a split vote, affirmed the $15,000 award against State Farm but vacated the $4,000 judgment against Nationwide. Mondelli v. State Farm Mut. Auto. Ins. Co., 193 N.J. Super. 522 (1984). Judge Petrella concurred in part and dissented in part. Id. at 527-33. He would have found both
carriers liable and assessed against each of them one-half of the arbitration award. Id. at 533.
Only plaintiff seeks relief in this Court. He inadvertently filed a petition for certification, notwithstanding his right to appeal under Rule 2:2-1(a) by virtue of the dissent in the Appellate Division. We therefore treat plaintiff's appeal as one of right. Mondelli v. State Farm Mut. Auto. Ins. Co., 99 N.J. 154 (1984) (mem.) (Order setting forth the foregoing). Neither insurance carrier filed a notice of appeal or cross-appeal to attack the Appellate Division judgment. Our review is therefore confined to the sole issue raised on plaintiff's appeal, namely, whether plaintiff is entitled to the UM coverage afforded under the Nationwide policy as well as that furnished by State Farm. Substantially for the reasons set forth in Judge Petrella's minority opinion below, we affirm so much of the judgment of the Appellate Division as holds State Farm's UM coverage available to plaintiff and reverse so much of that judgment as holds Nationwide's UM coverage unavailable.
The facts giving rise to plaintiff's claim are recited in the majority opinion below as follows:
The accident occurred about 11:00 p.m. as [plaintiff] was standing in the roadway talking to his girlfriend [Barbara Chandler] who was in the driver's seat of her car, which was parked at the curb. His arm was resting on the roof of the car. Just as she turned the ignition key, another vehicle struck him and drove away without stopping.
Earlier that day plaintiff and his girlfriend had switched cars so that he could tune her car's engine at a garage where he worked as an automobile mechanic. About an hour before the accident plaintiff drove that car to a home where his girlfriend was babysitting. She had driven there in his car. When the homeowners returned, plaintiff and his friend planned to leave in their own cars. At the time of the accident they were discussing where they would later meet. He was also interested in her reaction to the improved sound of the engine. Plaintiff had no intention of entering her car. [193 N.J. Super. at 523.]
The question posed by plaintiff's appeal is whether, under the foregoing circumstances, Mondelli came within the scope of UM coverage afforded by ...