On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication July 26, 1995
Before Judges Dreier, Braithwaite and Bilder. The opinion of the court was delivered by Braithwaite, J.s.c. (temporarily assigned).
The opinion of the court was delivered by: Braithwaite
The opinion of the court was delivered by BRAITHWAITE, J.S.C. (temporarily assigned).
Plaintiff appeals from an order granting summary judgment determining that defendant's New York issued automobile insurance policy does not cover her for claims she is making against her husband based upon a New Jersey accident. We reverse.
On August 18, 1991, plaintiff, Frieda Hamilton, and her husband, Stuart Hamilton, New York residents, were involved in an automobile accident with another automobile in New Jersey. Plaintiff was a passenger in her husband's automobile. Plaintiff brought an action against her husband's insurer, defendant Government Employees Insurance Company (GEICO), seeking a declaration that her liability claim was covered by her husband's policy.
GEICO filed a motion for summary judgment citing both the policy's exclusion of liability coverage for a spouse's bodily injury claims, and Veazey v. Doremus, 103 N.J. 244, 510 A.2d 1187 (1986), which held that the law of the state of the parties' residence controlled in determining whether one spouse could sue the other for personal injuries resulting from the negligent operation of an automobile in New Jersey. The trial Judge was persuaded by GEICO's position and argument, and granted summary judgment. In addition, the trial Judge rejected plaintiff's argument that N.J.S.A. 17:28-1.4 applies, and held that it did not apply here and that N.J.S.A. 17:28-1.4 only applies to the amount of coverage.
GEICO relies upon exclusion six of the liability coverage portion of its policy which provides: "your bodily injury or your spouse's bodily injury is not covered. We will cover a spouse if named as a third party defendant in a legal action initiated by his or her spouse against another party." This exclusion was written into the policy pursuant to N.Y. Ins. Law § 3420(g) (McKinney 1985) which provides as follows:
No policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or her spouse or because of injury to, or destruction of property of his or her spouse unless express provision relating specifically thereto is included in the policy. This exclusion shall apply only where the injured spouse, to be entitled to recover, must prove the culpable conduct of the insured spouse.
Despite this statute and the language of the policy, plaintiff asserts that N.J.S.A. 17:28-1.4 applies so that the policy must be construed as providing the coverage required by New Jersey law. N.J.S.A. 17:28-1.4 provides as follows:
Any insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State, or controlling or controlled by, or under common control by, or with, an insurer authorized to transact or transacting insurance business in this State, which sells a policy providing automobile or motor vehicle liability insurance coverage, or any similar coverage, in any other state ... shall include in each policy coverage to satisfy at least the liability insurance requirements of ... ([N.J.S.A.] 39:6B-1) or ... ([N.J.S.A.] 39:6A-3), the uninsured motorist insurance requirements of ... ([N.J.S.A.] 17:28-1.1), and personal injury protection benefits coverage pursuant to ... ([N.J.S.A.] 39:6A-4) or of ... ([N.J.S.A.] 17:28-1.3), whenever the automobile or motor vehicle insured under the policy is used or operated in this State.
Any liability insurance policy subject to this section shall be construed as providing the coverage required herein, and any named insured, and any immediate family member as defined in ... ([N.J.S.A.] 39:6A-8.1), under that policy, shall be subject to the ...