Rosemary Higgins Cass, J.s.c.
These consolidated matters came before me for trial on March 30, 1992. However, all parties consented to a stipulation of facts. The insurance carrier for defendants, Dennis, Palmer and Service Sales, Inc. deposited with the court proceeds of its insurance policy in the sum of $500,000 pursuant to an order of the Honorable Carol A. Ferentz dated January 14, 1992. The parties then requested declaratory judgment on the question of whether the liability coverage under the Aetna Casualty and Surety Company (hereinafter Aetna) policy of insurance is the $500,000 deposited with the court or whether, there being two insureds covered under the same policy, each is entitled to $500,000 coverage.
This action arises from a motor vehicle accident which occurred June 13, 1988 on Route 4 West in Paramus, New Jersey. There were three vehicles involved. Two vehicles were owned by defendant Service Sales, Inc. Herman Dennis, an employee of Service Sales, Inc., was driving a 1988 Mazda SE-5 pickup and Augustus Palmer, also an employee, was driving a 1988 Mazda 626. The third vehicle, a green Mercedes, was driven by Evisoo Suh, plaintiff. Plaintiff Kim Suh was a front seat passenger, and Mrs. Don Moon was in the back seat behind the driver Mr. Suh. Mrs. Moon was killed in the collision and Evisoo Suh and Kim Suh were seriously injured. The facts are stipulated as follows:
All vehicles were traveling West on Route 4. (Accident report of Officer Scully) Vehicle 1; a 1985 Mercedes 300D, New Jersey registration 327-2YH, was operated by Evisoo Suh, who resides at 25 Devon Drive, West Orange, New Jersey. Said vehicle is owned by Kim Suh, who was seated in the right front passenger seat at the time of the accident.
Victim, Mrs. Don Moon, 762 Wynetta Place, Paramus, New Jersey was seated in the rear seat of vehicle 1 directly behind Evisoo Suh, the driver in the Mercedes identified as vehicle 1 in the police report. (Id.)
Vehicle 2; a 1988 Mazda pickup truck, New Jersey registration CTE-80N, was operated by Herman Dennis, 125 Lawrence Street, Hackensack, New Jersey. (Id.)
Vehicle 3; a 1988 Mazda 626, New Jersey registration CMJ-864, was operated by Augustus Palmer. (Id.)
The vehicles operated by Mr. Dennis and Mr. Palmer were owned by Service Sales, Inc., 2500 Hudson Terrace, Fort Lee, New Jersey. (Statement of investigator Joseph Cofone, Bergen County Prosecutor's Office.)
Mr. Palmer drove Mr. Dennis and one Clifton Campbell in the Mazda 626 to Hackensack Ford at 320 River Street in Hackensack to pick up the Mazda SE-5 truck. (Statement of H. Dennis at P3, 4.)
Mr. Palmer and Mr. Dennis were then traveling on Route 4 West enroute to 556 East 20th Street, Paterson, to deliver the Mazda SE-5 operated by Mr. Dennis to a Mr. Williams' home. (Statement of H. Dennis at P3).
Mr. Palmer, in the Mazda 626, was leading with Mr. Dennis following in the SE-5 truck. (Statement of Augustus Palmer at P4).
Mr. Dennis, who was to follow Mr. Palmer, did not know how to get to Mr. Williams' house in Paterson. (Statements of Clifton Campbell at P7; H. Dennis at P4).
From the time the Dennis and Palmer vehicles entered Route 4, they remained in the left or fast lane. (See Report of Investigator Joseph Cofone)).
Mr. Palmer, who was leading, was aware that the left or fast lane is for passing on a three-lane highway under New Jersey law. (Statement of A. Palmer P28).
It was evening. The street lights were on and the road was well lit. (Statement of H. Dennis of 6/17/88 at P2).
Traffic was light to moderate. (Statement of A. Palmer P27).
Road condition was good. (Statement of A. Palmer at P19).
The Mazda 626 and the SE-5 pickup approached the auto of Mr. Lennox Jackson at some point on Route 4. (Statement of L. Jackson at P2. * * * Note; All citations to Statement of L. Jackson will be to statement of July 21 unless indicated otherwise).
The accident occurred in the area of Mile Post 4 on Route 4 West. (Report of Investigator Joseph Cofone, Bergen County Prosecutor's Office).
Mr. Jackson was traveling in the left, or fast, lane. (Id.)
The approaching vehicles were in the same lane as Mr. Lennox Jackson. (Statement of L. Jackson at P3).
Mr. Jackson also observed the green Mercedes, later found to be driven by Mr. Suh, in the middle lane 70-100 yards ahead. (Id. at P2).
Mr. Jackson had his cruise control set at 60 miles per hour while driving in the left lane. (Statement of L. Jackson at P3).
The Palmer vehicle, the Mazda 626, flashed its headlights to signal Mr. Jackson to move over. (Statement of L. Jackson at P3).
The overtaking vehicles appeared to be racing; they were traveling at an excessive rate of speed. (Statement of L. Jackson of 6/15/88 at P1).
Mr. Jackson estimated the speed of the overtaking vehicles at 70 or 80 miles per hour. ...