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Fiscor v. Atlantic County Bd. of Chosen Freeholders

July 19, 1996

DONALD E. FISCOR, PLAINTIFF-RESPONDENT CROSS-APPELLANT,
v.
ATLANTIC COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANT-CROSS RESPONDENT, AND MARYLAND CASUALTY INSURANCE COMPANY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.

Approved for Publication July 19, 1996. As Corrected October 7, 1996.

Before Judges Shebell and Dreier. The opinion of the court was delivered by Dreier, P.j.a.d.

The opinion of the court was delivered by: Dreier

The opinion of the court was delivered by

DREIER, P.J.A.D.

Defendant Maryland Casualty Company appeals from a summary judgment declaring it liable under the "non-owned vehicle" provision of a personal automobile insurance policy issued to plaintiff, Donald E. Fiscor, for claims that arose out of an accident that occurred while plaintiff was driving a vehicle owned by defendant Atlantic County Board of Chosen Freeholders. Plaintiff cross-appeals from another provision of the summary judgment declaring Atlantic County not responsible either as an insurer under N.J.S.A. 40A:10-3 or as a self-insured local unit under N.J.S.A. 40A:10-4. For reasons that we will explain, we reverse the declaratory judgment entered against defendant Maryland Casualty, reverse the declaratory judgment entered in favor of the County, and remand for further proceedings in accordance with this opinion.

Plaintiff was the warden of the Atlantic County Jail and as such was on twenty-four hour call. He was assigned a County-owned vehicle that he was permitted to drive to and from his home. At the time of the accident, plaintiff had been returning home from work and, on his way home, stopped at a winery and became intoxicated. As he completed his journey home, he rammed into a vehicle driven by Kristin Siville, killing her. He was later indicted and apparently convicted of reckless manslaughter.

I

In addition to the County-owned vehicle, plaintiff and his wife owned two private vehicles, insured by Maryland Casualty, which they used as their ordinary pleasure vehicles. The Maryland Casualty policy contained an exclusion stating:

We do not provide Liability Coverage for the ownership, maintenance or use of: ... (2) Any vehicle, other than "your covered auto," which is: ... (b) furnished or available for your regular use.

[Emphasis added.]

The trial Judge determined that the language of the policy defined "you" and "your" as encompassing both plaintiff and his wife. Therefore, reasoned the Judge, the exclusion applied only if the vehicle had been supplied for the use of both plaintiff and his wife. According to the Judge, since the wife did not have regular use of the County-owned vehicle, that vehicle was not excluded under the terms of plaintiff's own insurance policy.

While we disagree with the motion Judge's reasoning on this point, we reverse for another reason. As noted by the Judge, employer-furnished vehicles that are provided to an employee on the job and for transportation to and from home have been treated in varying ways by ...


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