On appeal from Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, Docket No. L-5398-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner, Sapp-Peterson.
These two appeals, which we have consolidated for purposes of this opinion, arise from a declaratory judgment action filed by plaintiff Auto One Insurance Company against its insured, defendant Christian M. Robinson, and several other parties who had sued Robinson for damages in connection with an automobile accident. Auto One sought a declaration that it did not owe Robinson coverage under its policy, because Robinson was a passenger rather than a driver of a borrowed automobile at the time of the accident. Because we conclude that the policy covered Robinson while he was "using" the automobile and the term "use" included riding in the car as a passenger, we reverse the December 7, 2007 order of the trial court in favor of Auto One and remand for entry of an order declaring coverage.
These are the most pertinent facts. Joseph Garcia, who had a learner's permit,*fn1 obtained his mother's permission to use her car to go out to a restaurant with a friend, Channing, who had a driver's license. Garcia's mother gave Channing permission to drive the car, as she had several times in the past. However, instead of returning home after dinner, Garcia and a group of friends went to a party, imbibed alcohol, and did not leave for home until early morning the next day. Initially on the trip home, Robinson, a licensed driver, was behind the wheel.*fn2
However, at some point the inebriated Garcia insisted on driving and, thereafter, drove the car off the road into a tree.
Nataliya Karpiy, who was injured in the accident, filed a negligence complaint alleging that Robinson "was the licensed driver responsible for [Garcia's] operation of the motor vehicle" and that the accident was proximately caused by Robinson's negligence "in the operation, control and supervision" of the vehicle. Maryann Erickson, on behalf of herself and as guardian for an injured minor passenger Amanda Erickson, also sued Robinson on the theory that Robinson was the licensed driver responsible for Garcia's operation of the car, as well as on the theory that Robinson permitted an intoxicated person to drive the vehicle in violation of N.J.S.A. 39:4-50(a).*fn3
At the time of the accident, Robinson was insured under his mother's Auto One insurance policy, which named Robinson as a covered driver. Section IV, subsection A of the policy defined "liability coverage" as including the insured's "use" of his private passenger auto or his "use" of a "non-owned auto":
(1) pay damages that an insured becomes legally liable to pay because of
(a) bodily injury to others, and
(b) property damages caused by accident resulting from the ownership, maintenance, or use of your ...