Before Judges D'Annunzio and A.a. Rodr¡guez and Coburn
The opinion of the court was delivered by: D'annunzio, J.A.D.
 Argued February 4, 1998 *fn1
On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
On April 5, 1993, Joseph Collins was operating a Toyota titled in the name of his stepfather, James Spataro. The car, however, was considered to be Doris Spataro's personal vehicle. Doris is Joseph's mother and James Spataro's wife. At that time, Joseph's wife, Rhonda, was a passenger in the Toyota. Joseph was drunk and was involved in an accident which killed Rhonda. Joseph was convicted of vehicular homicide and served a prison sentence.
The issue below was whether an automobile policy issued by Rutgers Casualty Insurance Co. (Rutgers) to James Spataro, insuring the Toyota and a Lincoln, also owned by James Spataro, provided liability coverage to Joseph. The policy, under Exclusion A.8, precluded coverage for "any person . . . [u]sing a vehicle without a reasonable belief that that person is entitled to do so." The trial court ruled that coverage was not available because Joseph did not have a reasonable belief that he was entitled to use the Toyota. Edward G. Iovino, Rhonda's father and the executor of her estate, appeals from that determination. Joseph and Rhonda have a child, Joshua, who, presumably, would benefit from any damages recovered as a consequence of his mother's death.
These are the uncontroverted facts. Joseph and Rhonda had planned to attend a concert in New York on the night of April 4, 1993. They owned a Nissan automobile whose brakes were malfunctioning. Joseph testified that he had to use the hand brake to stop the vehicle. Accordingly, Joseph and Rhonda determined that it would be dangerous to use the Nissan, and they decided to borrow the Toyota while Doris and James Spataro were out of town.
Joseph had a key to the Spataro house because he had been living there for the past two weeks. Joseph testified that he had separated from Rhonda to give him a better chance to deal with his alcoholism. Joseph and Rhonda entered the Spataro house, found the keys to the Toyota and took the vehicle; Rhonda drove the Toyota while Joseph drove their Nissan. They did not take the Toyota to New York, however. They used it to get to Rhonda's brother's house in North Brunswick, using other transportation to go from North Brunswick to New York. Later that evening, after returning to New Jersey, Joseph was driving the Toyota when it was involved in the accident.
In its letter opinion, the trial court stated that "[t]he principal issue to be determined herein is whether Joseph Collins and/or Rhonda Collins, his wife, had permission to drive the [Toyota] Camry of Doris and James Spataro, (Joseph Collins' mother and stepfather), on April 5, 1993."
Joseph, who was twenty-nine when the accident occurred, testified at trial that he did not have a valid driver's license at the time of the accident and had not had a valid driver's license since it had been revoked approximately ten years earlier. Rhonda did have a valid New Jersey driver's license. Joseph testified that neither he nor Rhonda was permitted to use either of his parents' cars, the Toyota or the Lincoln. Joseph denied that his mother had ever permitted Rhonda to use the Toyota. This testimony was inconsistent with his deposition testimony where he stated that Rhonda had driven the Toyota before April 1993. He also testified on deposition that Rhonda had driven James Spataro's Lincoln. During his deposition, Joseph testified that on occasion, Rhonda would be permitted to use the Toyota or the Lincoln "if we needed something from the store, if we were over at my parents' house, my mother would say, here take my car. My father would say, here come take the car. You know, it was just to the store or so."
During the trial, Joseph explained that his deposition answers were the result of confusion and he was really talking about a Volkswagen Rabbit his mother had owned which Rhonda had been permitted to drive occasionally. In fact, Joseph testified that around 1990, his mother gave the VW Rabbit to Joseph and Rhonda for a nominal price; in essence, a gift.
In his trial testimony, Joseph did admit that at no time did his mother or James ever tell Rhonda that she could not drive their cars.
Doris Spataro testified that she and her husband acquired the Toyota in October 1990, and during the period they owned the Toyota, they had never given Joseph or Rhonda permission to drive it. Joseph had never driven the Toyota or the Lincoln. Doris testified that Rhonda had never driven the Toyota or the Lincoln and did not have permission to drive either of those vehicles. However, on cross examination, she conceded that she had never told Rhonda or Joseph that they could not use her vehicles because they had never asked her for permission. Doris Spataro further testified that her relationship with Rhonda, her daughter-in-law, was good. She stated that "she was like a daughter. I loved her dearly."
James Spataro testified that to his knowledge, Joseph had never operated the Toyota or the Lincoln and he never gave permission to Rhonda to operate either of those cars. He further testified that to the best of his knowledge, Rhonda had never operated either the Toyota or the Lincoln. He recalled that on one occasion either Rhonda or Joseph or both of them together asked to borrow his Lincoln to go to Trenton, but he did not permit it.
Based on this evidence, the trial court made the following findings:
Joseph knew he was prohibited from using either of the Spataro vehicles. Under the test set forth in St. Paul Ins Co. v. Rutgers Casualty Ins. Co., 232 N.J. Super. 582 (App. Div. 1989) the question is whether the person using the vehicle, (here Joseph) has a "reasonable belief that (he) was entitled to do so.["]
Based on the circumstances of this case I find that Joseph had no reasonable belief that he was entitled to use the vehicle either on his own or by giving the car to his wife who later "allowed" him to drive.
The record supports the trial court's determination that Joseph, whose license had been revoked, did not have a reasonable belief that he was entitled to use the Toyota. Cf. State Farm Mut. Auto Ins. Co. v. Zurich Am. Ins. Co., 62 N.J. 155, 168 (1973) (hereinafter Zurich) (stating that absence of a license to drive is not conclusive regarding implied permission, but it is an "influential" factor).
The major flaw in the court's determination, however, is the absence of any consideration regarding the reasonableness of Rhonda's belief that she was entitled to use the Toyota to travel from Holmdel to North Brunswick, in light of the unsafe brakes of the Nissan.
Rhonda's reasonable belief in her entitlement to use the Toyota is a critical issue because Joseph and Rhonda had to appreciate that the Spataros would not have made any of their vehicles available to Joseph because of his problematic driving history and the revocation of his driving privileges. The fact that Rhonda took the Toyota and drove it from the Spataro residence probably reflects Rhonda and Joseph's understanding of the Spataros' attitude regarding Joseph's use of their vehicles. The "reasonably believed" entitlement standard is much broader than the "permissive" standard. Zurich, supra, 62 N.J. at 169- 70. The "reasonably believed" standard "focuses . . . on the state of mind of the claimed permittee. Did [she] in fact believe, with reason, that the owner was thus willing, whether or not the fact-finder would conclude from the circumstances that the owner was actually willing." Id. at 171. This determination must be made based on the "reaction of a reasonable [woman] of [Rhonda's] age, personality and social milieu, subject to such attendant influences on [her] judgment and mind as may be credibly discerned from the proofs." Id. at 172.
Moreover, because the trial court focused on Joseph's reasonable belief, the court did not analyze the inconsistencies in the record regarding Rhonda's prior use of Spataro vehicles as bearing on Rhonda's reasonable belief. In this regard, we note Chief Justice Weintraub's warning in a similar context that "[a] named insured untutored in law and fearful that his consent might lead to his own liability for the damages in excess of the policy limits . . . may well be tempted to invent a claim that he prohibited others to drive or to convert a precatory request into a binding prohibition." Baesler v. Globe Indem. Co., 33 N.J. 148, 159 (1960) (Weintraub, C.J., Dissenting). The trial court should have been cognizant of Joseph's and Doris' testimony that neither ...