On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1627-01.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Skillman and Seltzer.*fn1
This is an insurance coverage case.
On March 26, 1999, defendant Raymond Vaccari and his son, defendant Ryan Vaccari, purchased a 1967 Chevrolet Malibu. They each paid half the purchase price for the car, which was titled in the father's name. Defendants did not register the car because it needed repairs, including the installation of seat belts, before it could be operated on public streets. When the car was purchased, Ryan was sixteen years old and only held a learner's permit. Raymond prohibited Ryan from operating the car on the road until he was a licensed driver but gave him the keys so he could repair the car in the driveway to the family's home. Ryan kept those keys on his key chain. Raymond also allowed his son to operate the car in the driveway in connection with the repair work and to sit in the car with his friends and listen to music on the car radio.
On the evening of April 9, 1999, Ryan went to a party with several of his friends and became intoxicated. After the party, he and plaintiff returned to his house, where they sat in the Malibu drinking beer and listening to music. In the early morning hours of April 10, 1999, Ryan retrieved the keys to his mother's car, which was blocking the Malibu, and moved it out of the way. His parents were asleep inside the house at the time, unaware of what he was doing. Ryan then drove the Malibu out of the driveway into the street at a high rate of speed with plaintiff in the front passenger's seat. A short time later, he drove the car into a tree. Plaintiff suffered serious injuries in the accident.
Plaintiff brought this personal injury action against Ryan, Raymond and Raymond's wife, Lydia. At the time of the accident, Raymond and Lydia had a personal automobile liability policy issued by third-party defendant New Jersey Manufacturers Insurance Company (NJM). This policy covered the two cars driven by Raymond and Lydia. Although the 1967 Chevrolet Malibu was not listed under the policy on the date of Ryan's accident, the accident occurred within the thirty-day period allowed under the policy for adding an additional vehicle to the coverage.
When NJM disclaimed coverage, defendants filed a third-party complaint against NJM seeking a declaration that the automobile policy issued to them by NJM provided coverage for Ryan's accident. Allstate Insurance Company, which provided uninsured motorist coverage under an automobile liability policy issued to plaintiff's parents, subsequently intervened in the action in support of the third-party complaint.
The case was brought before the trial court by cross-motions for summary judgment. The court concluded in an oral opinion that the NJM policy provided liability coverage to Ryan because he was a permissive user of the Malibu. The court reasoned that Raymond had given Ryan permission to repair and otherwise use the car in the Vaccaris' driveway, and that under Verriest v. INA Underwriters Ins. Co., 142 N.J. 40, (1995), this permission made Ryan a permissive user of the car who was entitled to coverage under the automobile liability policy NJM had issued to his parents.
After entry of the summary judgment disposing of the coverage question, the underlying personal injury action was settled for $225,000. The settlement is contingent upon an affirmance of the order determining that NJM provides coverage to Ryan for the accident, thus preserving NJM's right to pursue this appeal. The consent judgment memorializing the settlement provides that if that order is reversed on appeal, plaintiff's uninsured motorist claim against Allstate will be arbitrated within sixty days.*fn2
We conclude that, under Verriest, Ryan was a permissive user of the Malibu at the time of the accident that resulted in plaintiff's injuries, and therefore the NJM policy provides coverage to Ryan for his liability to plaintiff. Consequently, we affirm the summary judgment against NJM.
In Verriest, INA issued a business-automobile policy to a company owned by James H. that performed work on cars. 142 N.J. at 404-05. One of James H.'s employees was his cousin, Curley, who had recently moved to New Jersey. Id. at 404. James H. bought a car for Curley for $150 that Curley was supposed to repay. Ibid. After James H. bought the car, he immediately turned over the certificate of ownership and keys to Curley. Ibid. However, the car remained on James H.'s lot for the next two-and-a-half weeks because Curley lacked the money to repay James H. or to register the car. Ibid. During that period, Curley performed repair work on the car. Ibid. When James H. went out of state, leaving Curley in charge of his business, Curley removed two automobile dealer plates registered to a local automobile dealer from a locked drawer in James H.'s office and placed them on the car. Curley then went out in the car drinking with his friends, following which he was involved in a serious accident that resulted in the death of one person and ...