JULIET D. NASCARELLA v. AMERICAN INTERNATIONAL GROUP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2290-11T4

JULIET D. NASCARELLA,

Plaintiff-Appellant,

v.

AMERICAN INTERNATIONAL GROUP, INC.,1

and JOSEPH PETROCELLI,

Defendants-Respondents.

____________________________________

February 6, 2013

Submitted November 26, 2012 - Decided

Before Judges Espinosa and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8269-11.

Lucas and Cavalier, L.L.C., attorneys for appellant (Robert M. Cavalier and Jordan S. Tafflin, on the brief).

Weiner Lesniak, L.L.P., attorneys for respondent 21st Century North America Insurance Company (Brad M. Weintraub, of counsel and on the brief).

PER CURIAM

Plaintiff Juliet D. Nascarella appeals from orders of the Law Division dated December 16, 2011, and April 4, 2012, dismissing her complaint against defendants, American International Group Inc. (AIG) and Joseph Petrocelli. We affirm.

I.

On August 20, 2008, plaintiff was a passenger in a pick-up truck driven by Joseph Petrocelli in Wayne County, Pennsylvania. At an intersection, the pick-up collided with another vehicle causing injuries to plaintiff. The pick-up was owned by Joseph Petrocelli's friend, who was not related to him and did not reside with him.

On August 22, 2011, plaintiff filed a complaint against Joseph Petrocelli in Wayne County alleging negligence. On September 22, 2011, plaintiff filed this complaint in the Law Division, Bergen County, seeking a declaration, pursuant to N.J.S.A. 2A:16-51, that liability insurance coverage under a personal automobile policy issued by AIG to Robert Petrocelli, Joseph's brother, extends to Joseph.

On December 16, 2011, the Law Division heard oral argument on AIG's motion to dismiss. The motion judge determined that there was no coverage for Joseph Petrocelli while he was driving an uncovered vehicle. On appeal, plaintiff maintains that the motion judge erred, as the policy was ambiguous and this ambiguity should be resolved in favor of the insured.

II.

We begin with a review of the policy. The only named insured is Robert Petrocelli; Joseph is not named anywhere in the policy. A 2005 Lincoln Navigator is listed on the policy as a covered auto and Clement Petrocelli, the father of Robert and Joseph, is listed on the policy as one of three drivers.

As the Navigator is owned by Robert and Clement, plaintiff argues that this joint ownership of a covered auto renders Clement an "insured" under the policy, and because Joseph resides with Clement, he is covered as a "family member."

In finding that Joseph was not covered, the motion judge relied on two amendments to the policy. The first amended the definition of "you and your," which initially defined the "named insured" person on the declarations and that person's spouse. The amendment provided:

1. The following is added to the definition of you and your.

a. You and your refer to two or more:

(1) Individuals, other than husband and wife, residing in the same household; or

(2) Non-resident relatives, who jointly own your covered auto.

2. The following definition is added:

Non-resident relatives means two or more persons related by blood, marriage or adoption who reside in separate households.

The motion judge also noted an exclusion as to liability coverage:

The following exclusion is added to Part A2:

We do not provide Liability Coverage for the ownership, maintenance or use of any vehicle, other than your covered auto by any:

A. Non-resident relative; or

B. Family member of a Non-resident relative.

Based on these provisions, the motion judge determined that Clement is a non-resident relative, as he jointly owns a covered vehicle with the named insured. As the vehicle involved in the accident was not a covered vehicle, the judge determined that there was no coverage for Joseph while operating a non-covered vehicle.

Plaintiff claims that the definition of "you and your" is ambiguous and any ambiguity must be resolved in favor of finding coverage.

Ambiguity in an insurance policy has been defined as when the policy language "fairly supports two meanings, one that favors the insurer, and the other that favors the insured[.]" President v. Jenkins, 180 N.J. 550, 563 (2004). In such a case, "the policy should be construed to sustain coverage." Ibid.

Plaintiff argues that, because the policy defines an insured as two or more non-resident relatives who jointly own a covered auto, Clement's joint ownership of a covered vehicle with Robert renders Clement an "insured party." This argument ignores the clear language of the exclusion. While Joseph's status as a member of Clement's household might extend coverage while he is driving a covered vehicle, the exclusion is clear that defendant "[does] not provide [l]iability [c]overage for the . . . use of any vehicle, other than your covered auto by any . . . [f]amily member of a [n]on-resident relative." Clement's joint ownership of the Navigator with Robert makes him a "non-resident relative." Coverage for a family member of a non-resident relative, like Joseph, is only provided when driving a covered auto. Joseph was not driving a covered auto at the time of the accident. The exclusion provision is devoid of any ambiguity and "[w]e will not search for ambiguities where there are none." Villa v. Short, 195 N.J. 15, 26 (2008) (citing Allstate Ins. Co. v. Gilbert, 852 F.2d 449, 454 (9th Cir. 1988)).

1 21st Century North America Insurance Company was improperly pleaded as American International Group, Inc.

2 Part A is that portion of the Standard Personal Automobile Insurance Policy defining "you and your."