On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Pressler, Scalera and Stern. The opinion of the Court was delivered by Scalera, J.A.D.
This case involves a dispute between two insurance companies over the liability insurance coverage for an automobile accident.
While we question whether the facts were properly established below (for reasons stated later), for our purposes we will assume them to be as follows: Darren Mingo (Mingo) was 17 years old and lived with his mother Diane Miller (Miller) in Atlantic City. He had a New Jersey driver's permit but as yet, was still an unlicensed driver. On the date of the accident he took his mother's 1981 Pontiac for a drive, allegedly without her permission, after he had been told by her only to wash the car. According to the uncertified statements offered on the summary judgment motion the car was owned by and registered in the name of Anthony Artis (Artis) who was stationed in West Germany in the U.S. Army. Artis had given the car to Miller who had it insured in her own name by a policy issued by Rutgers Casualty Insurance Company (RCIC).
On September 12, 1983 Margaret Miller (Margaret) (unrelated to Diane Miller) was driving a car owned by her employer and insured by St. Paul Insurance Company (St. Paul). According to a copy of the police report, Margaret was stopping for a stop sign when Mingo made a wide right turn from an intersecting street and struck her car. Mingo then fled the scene but eventually was issued a traffic summons for driving without a valid license and leaving the scene of an accident, to which he plead guilty.
RCIC denied liability coverage for the accident because Mingo assertedly did not have his mother's permission to drive the car at the time of the accident. Margaret then pursued a claim for personal injury under the uninsured motorist provision of the St. Paul policy which was later settled for $12,000. St. Paul was subrogated to her rights against Mingo and Miller and then instituted this declaratory judgment suit against RCIC to hold it responsible for coverage to Mingo under its policy.
St. Paul brought a summary judgment motion, attaching copies of the RCIC policy, the police report and uncertified statements from Mingo and his mother relating to the circumstances surrounding his possession of the car at the time of the accident. St. Paul argued that since Mingo was concededly a "family member" of the named insured, Miller, RCIC was compelled to afford coverage regardless of whether he was driving with his mother's permission. RCIC did not file any cross motion for summary judgment nor did it raise any other defense at that time except to assert that Mingo did not have permission to operate the vehicle. The trial judge agreed with St. Paul and held that since Mingo was an additional insured under the terms of the RCIC policy, Miller's lack of permission was irrelevant.
On this appeal RCIC argues that the trial court improperly granted summary judgment to St. Paul and also attempts to raise St. Paul's lack of standing to bring this suit directly against it.
The relevant provisions of the RCIC policy issued to Miller provide:
A. We will pay damages for "bodily injury" or "property damage" for which any "insured" becomes legally responsible because of an auto accident.
B. "Insured" as used in this part, means:
1. You or any "family member"*fn1 for the ownership, maintenance or use of ...