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Zacarias v. Allstate Insurance Co.

April 20, 2000

JOAO ZACARIAS,
PLAINTIFF-APPELLANT,
V.
ALLSTATE INSURANCE COMPANY AND GEORGE SINCOX,
DEFENDANTS-RESPONDENTS.



Before Judges Pressler, Kimmelman and Ciancia.

The opinion of the court was delivered by: Kimmelman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 7, 2000

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

Plaintiff Joao Zacarias appeals from the entry on May 15, 1998, of a summary judgment in favor of defendant dismissing plaintiff's complaint in which he sought a declaratory judgment that defendant was obligated to indemnify him with respect to a negligence action brought against him by his wife for injuries sustained in an accident while riding in a twenty-foot outboard recreational boat owned by plaintiff.

At the time of the purchase of the boat in 1989, plaintiff obtained from defendant through its agent, co-defendant George Sincox, an "Allstate Boatowners Policy." The policy was renewed annually thereafter.

On November 27, 1995, Mrs. Zacarias filed an action against her husband, plaintiff, for damages for injuries she allegedly sustained because of his negligent operation of the boat. Defendant disclaimed coverage but agreed to provide a defense for plaintiff under a reservation of rights agreement. Plaintiff then filed a declaratory action against defendant to adjudicate coverage. The two suits were consolidated for discovery and trial.

Defendant moved for summary judgment asserting that, as an insured person under its policy, Mrs. Zacarias was precluded from coverage. Plaintiff countered that (1) the preclusion of his spouse from coverage was against public policy and that (2) defendant should be held responsible on the theory of respondent superior because its agent had not brought the exclusionary clause to his attention.

While the record does not incorporate the declarations page of the policy, it does appear that the policy provides for "Watercraft Liability." However, under the heading labeled "Losses We Do Not Cover," the policy provides:

We do not cover bodily injury to an insured person or property damage to property owned by an insured person.

An "insured person" under the policy means "the person named on the declaration page as the insured and that person's resident spouse." Thus, under defendant's policy, Mrs. Zacarias, as a resident spouse, was an insured person for whom bodily injury was excluded from coverage.

Although not raised as a direct issue on appeal by plaintiff, it is suggested that insurance contracts are subject to special rules of interpretation since they are contracts of adhesion between parties of unequal bargaining power. Consequently, the policy in question should be construed to comport with plaintiff's reasonable expectation of coverage. Gibson v. Callaghan, 158 N.J. 662, 669-71 (1999); Doto v. Russo, 140 N.J. 544, 555-57 (1995).

However, we find the language of defendant's policy to be free from ambiguity. The words of the policy are to be given their plain and ordinary meaning. Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990). As a resident spouse of the named insured, Mrs. Zacarias is an insured person. The clear language of the policy will not support any expectation of coverage for Mrs. Zacarias' accident. Therefore, the personal injury loss sustained by her is not covered.

Unless the abolition of inter-spousal immunity, Merenoff v. Merenoff, 76 N.J. 535 (1978), has rendered the exclusion of Mrs. Zacarias from coverage contrary to the State's legislatively established public policy, we are bound by the pertinent ruling of the Supreme Court in ...


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