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Government Employees Insurance Company v. Steven Meringolo

February 22, 2011

GOVERNMENT EMPLOYEES INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
v.
STEVEN MERINGOLO, DEFENDANT-RESPONDENT, AND ROSANGELA CASTRO, DEFENDANT-APPELLANT, AND KOLU, LLC T/A 88 KEYS, AND MARISOL FERNANDEZ, DEFENDANTS.
LIBERTY MUTUAL INSURANCE COMPANY AND ISABEL CUNHA, INTERVENORS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3144-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 19, 2011 - Decided

Before Judges Wefing, Baxter and Koblitz.

These three appeals, which were argued back to back, and which we consolidate for purposes of disposition, all raise the identical issue, namely, whether defendant Rosangela Castro had implied permission from the vehicle's regular operator, defendant Vanessa Fernandez, to drive the vehicle on the night in question, thereby obligating Fernandez's auto insurance carrier to provide coverage. The motion judged answered that question in the negative. We agree, and affirm.

I.

On the night of October 7, 2006, a group of friends, defendant Vanessa Fernandez, defendant Rosangela Castro, Siobhan Quinonas,*fn1 Jessica Borerro and Maritza Quiros, made plans to go together to 88 Keys, a bar in Woodbridge. Fernandez drove a 2001 Ford Focus, belonging to her mother Marisol Fernandez,*fn2 and insured by defendant Government Employees Insurance Company (GEICO). Castro's brother, Danny, and Vanessa had a child together, and therefore Castro was the aunt of Vanessa's child.

Once the five women arrived at the bar, Vanessa asked Castro to hold her keys because Castro was the only one of the five carrying a purse that night. Vanessa simply said, "[h]ere. Put the keys in the bag." Two of the other women put their wallets in Castro's purse as well. Castro understood that it was Vanessa's intention to drive the five of them back home and that "[n]o one else was going to drive; there wasn't another designated driver[.] . . . [J]ust Vanessa."

After entering the bar, the group separated and Castro and Quinonas went downstairs to dance. Castro, who was a few weeks shy of her twenty-second birthday, admitted to consuming five drinks of Hennessey and Coke and two bottles of Corona between approximately 11:00 p.m. and shortly after 1:00 a.m. While Castro was working on her fifth Hennessey and Coke, Quinonas received a telephone call from two of her male friends, who were at a nearby Applebee's and wanted to join the women at 88 Keys, but did not know how to get there. Quinonas and Castro agreed to drive over to Applebee's so that their friends could follow them back to 88 Keys in their car. Neither Quinonas nor Castro told any of the other three women that they were planning to leave the bar to drive to Applebee's. When asked at her deposition whether she made any effort to find Vanessa before leaving the bar, Castro answered that she and Quinonas looked for Vanessa "real fast," and when they were unable to find her, they left. Castro commented "we just went around, but we didn't see her, so we wasn't [sic] going to kill ourselves to look for her."

The two men followed Quinonas and Castro, who was driving Vanessa's 2001 Ford Focus, back to 88 Keys. Castro parked the car near the building, but was immediately approached by a bouncer who told her that she had parked in a "VIP spot" and would have to move the car. According to the testimony Castro later provided at her deposition, she put the car in reverse, but then, "[it] like hit [her]" and she "blacked out." She had a vague recollection that "the car flew back" at a high rate of speed. The Ford Focus struck and injured two pedestrians, plaintiffs Steven Meringolo and Isabel Cunha, and then struck the Escalade being driven by Quinonas's two friends. The car came to rest after Castro crashed into a window of 88 Keys.

In the meantime, Vanessa had become concerned about Castro because she had not seen her for approximately twenty minutes. Vanessa decided to go outside and "look for her." Vanessa testified that the first time she was aware Castro took her car was when she saw Castro driving the car into the parking lot of 88 Keys with Quinonas seated in the passenger seat.

Two days later, Castro gave a taped statement to a GEICO claims investigator during which she was asked whether she "ha[d] permission to drive the vehicle." She answered "No, I didn't." When asked why she drove the vehicle, Castro responded, "I was going to pick up a friend and I was going to be right back. I was going to take a few minutes so that is why I took it." Castro was also questioned during her deposition at considerable length on the subject of whether she had permission from Vanessa to drive the car on the night in question. Castro admitted that she had not asked Vanessa's permission to drive the car over to Applebee's, but drove Vanessa's car nonetheless because she "figured [Vanessa] would just say yes if I would have asked her." When asked why she had the "impression" that Vanessa would have said yes, Castro responded, "[b]ecause I used the car before." She explained that she had not asked Vanessa for permission because she "didn't see her. She wasn't around me."

Castro was asked whether she had ever driven Vanessa's car prior to that night. She responded that in the past "year or two [years]," she had used the car "[t]wo or three times," but only with Vanessa's express permission. On one occasion, she asked Vanessa if she could borrow her car to go to the Shop-Rite to buy food "for the house," and on another occasion Vanessa had allowed Castro to use her car to drive Castro's grandmother home. On each of those two occasions, Castro asked Vanessa for permission and Vanessa said yes. Castro also admitted that Vanessa had never told her she was free to use her car whenever she wished.

Later on in the deposition, when Castro was asked why she and Quinonas had taken a "lap around the bar to look for Vanessa" before they left for Applebee's, Castro responded, "[t]o ask if I could go pick -- use her car to go pick them up." She was then asked:

Q. And then after taking the lap around the bar, you felt that you could use the car because on the two to three prior occasions in the year before the day of the accident when you had asked ...


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