NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 7, 2013.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-5419-10 and L-9579-10.
Glen T. Dyer argued the cause for appellant IFA Insurance Company (Dyer & Peterson, P.C., attorneys; Mr. Dyer, on the brief).
Raymond R. Connell argued the cause for respondent New Jersey Manufacturers Insurance Company (Dwyer Connell & Lisbona, attorneys; Mr. Connell, on the brief).
Before Judges Koblitz and Accurso.
This case involves a dispute between two insurance companies, IFA Insurance Company (IFA) and New Jersey Manufacturers Insurance Company (NJM), over coverage of an automobile accident. IFA appeals from the October 4, 2012 order for judgment in favor of NJM and December 4, 2012 order denying a new trial. The central question is whether the evidence supported the judge's legal conclusion that the driver, twenty-one-year-old Justin M. Gari, was a resident of his mother, Joanne Macolino's, household and thus, pursuant to her car insurance contract, IFA must cover the accident. We agree that the evidence submitted was so one-sided that dismissal at the end of trial was appropriate.
Gari was driving his mother's car during the early morning hours of July 6, 2008, when he had an accident injuring plaintiff Frank Giangerelli, a Fairfield Township Police Officer.
Following the accident, Giangerelli and his wife filed suit against Gari and his mother. IFA then filed a declaratory judgment action, pursuant to the Uniform Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, against Gari. NJM, the Giangerellis' personal insurance carrier, filed a complaint for intervention into the Giangerelli lawsuit because the Giangerellis had sought uninsured (UM) and/or underinsured (UIM) motorist coverage in light of the injuries. Both parties agree that IFA provided only $100, 000 per person in liability coverage (less than the Giangerellis' UM/UIM coverage limit) and denied coverage claiming that Gari had no reasonable belief that he was entitled to operate his mother's car at the time of the accident.
The IFA policy provided:
A. We do not provide Liability Coverage for any "insured":
8. Using a vehicle without a reasonable belief that that "insured" is entitled to do so. This exclusion (A.8) does not apply to a "family member" using "your covered auto" which ...