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Mayer v. Avery


July 20, 2007


On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. MER-L-546-05.

Per curiam.


Argued May 23, 2007

Before Judges Cuff and Fuentes.

This is a declaratory judgment action filed by Auto One Insurance Company (Auto One), defendant's automobile insurance carrier. The underlying controversy involved a personal injury suit filed by plaintiff after he was bitten by defendant's dog. The animal escaped from defendant's parked car as she opened the vehicle's door to enter. The car was parked in the parking lot of the Red, White and Blue Thrift Store in Hamilton.

Auto One sought a judicial declaration that, under these circumstances, the incident and resulting injuries to plaintiff do not constitute a covered claim under defendant's auto policy. The issue came before the Law Division by way of Auto One's summary judgment motion. The trial court denied Auto One's motion, finding that plaintiff's injuries "could very well have resulted from [defendant's] ownership meaning [ ] use of the vehicle."

We granted Auto One's motion for leave to appeal. Both parties concede that the material facts are undisputed, and that the motion judge was confronted, as are we, with purely an issue of law. After considering the applicable legal standards, we (1) affirm the trial court's denial of Auto One's summary judgment; (2) reverse the court's decision referring this case to trial; and (3) remand for the entry of judgment in favor of the insured as a matter of law.

The Auto One policy covering defendant's 1988 Toyota Corolla defines the scope of liability coverage as follows:

We will (1) pay damages that an insured becomes legally bound to pay because of (a) bodily injury to others, and (b) property damage caused by accident resulting from the ownership, maintenance or use of your private passenger auto.

Diehl v. Cumberland Mutual Fire Insurance, 296 N.J. Super. 231 (App. Div.), certif. denied, 149 N.J. 144 (1997), is the leading case that has addressed the question of coverage in a context similar to the one we confront here. In Diehl, the defendant-driver had a dog in the open cargo area of his pickup truck. Id. at 233. When defendant saw his brother, he pulled the pickup truck to the side of the road. Ibid. His brother walked to the pickup truck's open cargo area, and was bitten in the face by the dog. Ibid. The pickup truck had a liability policy containing the same coverage language cited earlier. Id. at 235.

Against these facts, Judge (now Justice) Wallace, writing for the panel, held:

[W]e are satisfied that automobile liability insurance should cover this injury caused by a dog bite to the face occurring while the dog was in the open rear deck of a pickup truck because it arose out of the use of the vehicle to transport the dog. Moreover, the bite incident was facilitated by the height and open design of the deck. In our view the act was a natural and foreseeable consequence of the use of the vehicle, and there was a substantial nexus between the dog bite and the use of the vehicle at the time the dog bit the plaintiff. [Id. at 236.]

The same nexus exists here between plaintiff's injuries and defendant's use of her car to transport her dog. It is self-evident that cars are used to transport dogs, and that dogs are ubiquitous throughout our State, and accepted as part of many households. It is thus entirely foreseeable that, despite a driver's best efforts, or even in a moment of inattention, a rambunctious dog could evade his owner's attempts to keep him in the vehicle.

Here, the incident occurred immediately after the dog's escape. The dog was being transported in the car's backseat, thus facilitating his unexpected departure through the open driver's side door. As in Diehl, this incident was "a natural and foreseeable consequence of the use of the vehicle." Ibid.

Thus, given the absence of a factual dispute, we assert original jurisdiction under Rule 2:10-5, and decide, as a matter of law, that Auto One is obligated to defend and indemnify Avery in the underlying personal injury claim asserted against her by George Mayer. The matter is remanded for the trial court to enter judgment in favor of the insured in the declaratory judgment action initiated by Auto One.

Affirmed in part. Reversed in part. Remanded for further action consistent with this decision.


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