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Cassilli v. Soussou

July 6, 2009

ARCANGELO CASSILLI, JR., AND DENISE CASSILLI, PLAINTIFFS-APPELLANTS,
v.
GEORGE A. SOUSSOU, SELECTIVE INSURANCE COMPANY OF AMERICA, THE OHIO CASUALTY INSURANCE COMPANY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4615-06.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted May 28, 2009

Before Judges Parrillo, Lihotz and Messano.

This is an insurance coverage matter arising from a December 13, 2005 auto accident in which defendant George Soussou (Soussou), driving his 2000 Chevy Venture minivan, collided head-on with a vehicle driven by plaintiff Arcangelo Cassilli, causing plaintiff serious injury. The Chevy Venture was insured under a Personal Auto Policy (PAP) issued to Soussou by State Farm Insurance Company. Plaintiff's subsequent negligence claim*fn1 against Soussou was resolved for the $100,000 State Farm policy limits of coverage. In an amended complaint, plaintiffs sought "excess" coverage under the PAP issued by defendant Selective Insurance Company of America (Selective) to Soussou's son Roger, which plaintiffs claimed also covered Soussou and the Chevy Venture.*fn2 The motion judge disagreed and granted Selective summary judgment dismissal of plaintiffs' complaint on the grounds that the Selective policy unambiguously excluded Soussou's Chevy Venture from coverage and that Soussou could not have reasonably expected otherwise. Plaintiffs' later motion for reconsideration was denied for the same reason.

On appeal, plaintiffs' argument relies principally on a claimed ambiguity in the declaration page of the Selective policy and an apparent contradiction in the policy language between the stated liability coverage and an exclusion, both of which led Soussou to reasonably expect that he: (1) was the named insured, (2) was insured for "any auto," whether he owned it or not, and (3) was not subject to the relevant exclusion, which denies coverage to a "named insured" when driving a non-covered vehicle owned by him. We disagree. Soussou was not a named insured under the Selective policy nor was his Chevy Venture a "covered auto," placing him squarely within the exclusionary language of the Selective policy. Even assuming some ambiguity over his status as a named insured, he cannot be both a "family member" and "named insured," and therefore, in any event, falls outside the exception to the exclusion. Given this explicit bar, any expectation of coverage was simply not objectively reasonable.

By way of background, at the time of the accident, Soussou resided in the same household with his wife, Sylvia, and his two adult children, Priscilla and Roger. At his father's urging, Roger, who was a part-time college student, purchased automobile liability coverage for himself and members of his family from Selective. Sylvia and Priscilla contributed to the cost of the premium. The policy in effect at the time of the accident had a coverage period from March 7, 2005 to March 7, 2006, and had been mailed to Roger at the family's Wayne address. The policy's declaration sheet lists Roger's name and address in the upper left hand corner and identifies him as a "student."

Further down, the document lists three vehicles "principally garaged at [Roger's] address" that are covered by the policy: a 2000 Ford Mustang, a 1992 Saab 900, and a 1996 Chevy Lumina. In the box designated "Operator Section," the names of the family members who operate these three vehicles are listed: Roger, Priscilla, Sylvia, and George Soussou. All three vehicles are registered in Roger's name, although his sister and mother use two of them. On occasion, about once a week, Soussou drives the Ford Mustang, which is the vehicle his wife uses. Soussou's Chevy Venture is not listed in the declaration page's "Description of Owned Autos." Correspondingly, no other family members drive the Chevy Venture, which Soussou uses for his business and, as noted, is separately insured. The declaration page also does not specifically identify any member of the family as a "named insured."

Selective's PAP contains a clause stating that "family members"*fn3 are covered when using "any auto." However, the PAP also contains an "Exclusion" section, which provides:

B. We do not provide Liability Coverage for the ownership, maintenance or use of:

2. Any vehicle, other than "your covered auto", which is:

a. Owned by you; or

b. Furnished or available for your ...


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