On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket Nos. L-6206-09 and L-2340-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
The opinion of the court was delivered by OSTRER, J.S.C. (temporarily assigned).
We are presented with an issue of contract interpretation. We are asked whether an entity that repossesses an automobile is insured under the omnibus provision of a personal automobile insurance policy that extends coverage to persons who use an owned automobile with the policy holder's permission. We conclude that a repossessor is not a permitted user.
The facts are undisputed. In December 2002, Annetta Jackson took out a six-year loan at 17.95 percent interest to purchase a 2002 Isuzu Rodeo. The retail installment contract provided that in the event of a default by failing to make timely payments, the lender had the right to repossess:
In addition to any rights we may have under law, upon any Default, our rights include . . . [t]he right to obtain possession of the Goods, with or without process of law, if you do not deliver them to us. You authorize us to peaceably enter any premises where the Goods may be in order to take possession of the Goods and remove them. You authorize us to use your license plates in removing the Goods to a place of storage. We may take any other things found in the Goods, but will return these things to you if you ask. If you want these things back, you agree to ask us in a letter sent by certified mail within a reasonable time.
The loan was ultimately assigned to AmeriCredit.
After Jackson defaulted, AmeriCredit asked Repossession Specialists (Repossession) in May 2006 to repossess the Rodeo. Just before 3:00 am on May 9, 2006, Repossession's employee Theodore Van Santen entered Jackson's apartment complex's parking lot with his tow truck to take the Rodeo. After hearing the noise of Van Santen's truck, Jackson ran to remove some personal items from the trunk of her car, which was already hooked to the tow truck. Jackson climbed on the tow bar and was trying to unlock the trunk when Van Santen pulled away and Jackson was thrown to the ground, cutting her knee.
Jackson filed suit in April 2008. Repossession's own insurer, New Hampshire Insurance Company, accepted coverage. However, Repossession, Van Santen and AmeriCredit (plaintiffs) also sought coverage from Jackson's insurer, GEICO Insurance Company (GEICO), claiming they were a permitted user of Jackson's auto, and therefore were covered under GEICO's policy.
The GEICO policy*fn1 provided liability coverage to "an insured," stating that "we will pay damages which an insured becomes legally obligated to pay because of: (1) bodily injury, sustained by a person, and (2) property damage, arising out of the ownership, maintenance or use of the owned or non-owned auto." (Bold and italics omitted). An "insured" under the policy included Jackson as policy holder and, among others, "[a]ny other person using the auto with your permission. The actual use must be within the scope of that permission." The policy also covered "[a]ny other person or organization for his [or her] liability because of acts or omissions of" a person insured because he or she was using the automobile with permission. The policy excluded claims arising from the use by a person, other than Jackson or a relative, "when he [or she] is employed or otherwise engaged in the auto business."
Jackson's complaint was ultimately dismissed with prejudice in December 2010 after arbitrators found her seventy-five percent liable and she did not reject the award and seek a trial de novo. Meanwhile, GEICO and plaintiffs moved and cross-moved for summary judgment. Plaintiffs argued they were permitted users based on the terms of the policy and the retail installment agreement. GEICO denied that plaintiffs ...