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Owens v. Prudential Property and Casualty Insurance Company of New Jersey

December 26, 2000

MELODIE OWENS AND CAROL JEAN POWELL, PLAINTIFFS-APPELLANTS,
v.
THE PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY OF NEW JERSEY, DEFENDANT-RESPONDENT.



Before Judges Havey, Wefing and Cuff.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 6, 2000

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

Plaintiff Melodie Owens was a passenger on a motorcycle operated John R. Peiffer, II. She sustained injuries when the motorcycle collided with a vehicle owned by Kenneth Udowiczyk and operated by Natalie Vacca. Owens and her mother, Carol Jean Powell, instituted suit against Peiffer and Vacca. They alleged that Peiffer's and Vacca's negligent operation of their vehicles proximately caused their collision and her resulting injuries. They also alleged that Peiffer negligently and carelessly "provided and entrusted" to Owens a defective, "unapproved" and "unreasonably dangerous" helmet, which Owens was wearing at the time of the accident, resulting in her "enhanced personal injuries." Peiffer had purchased the "defective" helmet several days before the accident and had given it to Owens.

Plaintiffs settled with Vacca and Udowiczyk for $250,000. Vacca's automobile insurance carrier paid its policy limits of $100,000 as part of the settlement. Plaintiffs filed this declaratory judgment action against defendant Prudential Property and Casualty Insurance Company of New Jersey (PRUPAC) which provided homeowner's coverage to Peiffer at the time of the accident.

The policy provides:

If a claim is made or suit is brought against any insured for damages because of bodily injury or property damage to which this coverage applies, we will:

a. pay up to our limit of liability for the damages for which the insured is legally liable; and

b. provide a defense at our expense . . . .

An exclusion under the policy provides that "[w]e do not cover bodily injury or property damages . . . arising out of . . . the ownership, maintenance, use, loading or unloading of any . . . motor vehicle . . . ." The motorcycle in question falls within the definition of "motor vehicle" as defined in the policy. Plaintiffs claim that the act of "negligently or recklessly providing the helmet to Plaintiff" constituted a covered act.

On the parties' cross-motions for summary judgment, the trial court dismissed plaintiffs' complaint, finding that "the accident in question was a motor vehicle accident, whether the injuries were expected or enhanced, the injuries arose out of the use of a motor vehicle." Acknowledging that there may be instances where there may be concurrent coverage under an automobile and homeowner's policy, the court nevertheless found that this was not such an instance because "a non-party vehicle related cause" did not contribute to or enhance the damages suffered by plaintiff.

On appeal, plaintiffs argue that the negligent act of providing and entrusting the motorcycle helmet to Owens "is a separate and distinct tort from any negligence associated with operating the motor vehicle." Thus, concurrent coverage must be provided under Vacca's automobile policy and PRUPAC's homeowner's policy issued to Peiffer. We reject the contention and affirm.

We have construed the phrase "arising out of" in this context in a broad and comprehensive sense to mean "originating from" or "growing out of" the use of the automobile. Westchester Fire Ins. Co. v. Continental Ins. Cos., 126 N.J. ...


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