NEW JERSEY SKYLANDS INSURANCE COMPANY v. FRANCIS MORELL and MARY ANN MORELL, his wife

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2335-05T22335-05T2

NEW JERSEY SKYLANDS INSURANCE

COMPANY,

Plaintiff-Respondent,

v.

FRANCIS MORELL and MARY ANN

MORELL, his wife,

Defendants-Appellants,

and

JOHN KAMINSKI and CHRISTINE M.

HORAN,

Defendants.

____________________________________

 

Argued December 20, 2006 - Decided March 22, 2007

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Docket No. L-4097-05.

Jeffrey P. Fritz argued the cause for

appellants (Soloff & Zervanos, attorneys;

Albert J. Talone, on the brief).

William A. Garrigle argued the cause for

respondent (Garrigle and Palm, attorneys;

Mr. Garrigle, on the brief).

PER CURIAM

This is a declaratory judgment action. Plaintiff New Jersey Skylands Insurance Company (Skylands) insured a motor vehicle owned by Christine M. Horan, which was involved in an accident with a car driven by defendant Francis Morell. At the time of the accident, the Horan car was being driven by Christine's brother John Kaminski. Skylands disclaimed liability for the accident because Kaminski drove the car without his sister's permission.

The issue came before the Law Division by way of Skylands' motion for summary judgment. The court agreed with Skylands' position and entered judgment accordingly. Defendants Francis and Mary Ann Morell now appeal, arguing that the motion judge erred as a matter of law under the so-called "initial-permission rule." We reject this argument and affirm. The material facts are not disputed.

The insured, Christine Horan, gave the following testimony at her deposition concerning her interactions with her brother, and the incident surrounding the taking of her car on the date of the accident:

Q. During that January of '02, did you ever send [your brother] out for anything that you might have needed, the weather was bad, rain, snow, ice, and you asked him, you know you needed milk for the kids, anything?

A. No.

Q. And did [your brother] ever ask to borrow your car in January or February of 2002, before the accident happened, that you recall?

A. No, no.

Q. Was [your brother] ever stopped in Woodbury by the police while operating your car in January or February?

A. I don't recall. He took my car once when I was in the shower, and that was the day it snowed, shortly before he had the accident. And by the time I looked around for my keys and looked for him, he was back in. And I freaked out on him, and said, don't ever take my car again. You know, I thought big Neal had come back and took my keys, because my husband is spiteful, you know.

Q. Big Neal would be Cornelius?

A. Cornelius, yeah.

Q. Your estranged husband?

A. Yeah. So I chewed him out pretty good, and I thought he understood, don't touch the car.

Q. After that one occasion that you say he took the car, where, if at all, did you put the keys so that this wouldn't happen again?

A. I didn't hang them on the wall anymore. I would put them at the bottom of the coffee table. It had a ledge underneath it.

With respect to the particular circumstances involving the accident at issue, Horan gave the following account of what transpired:

Q. All right. Now, when was it that you first discovered that the vehicle was gone?

A. When I got out of the shower, came downstairs, and found out that he wasn't there, and the keys weren't where I put them.

Q. And at that point in time, what did you do?

A. I talked to myself a lot, paced through the whole house, you know, this ba, ba, ba, ba, ba, ba. I called him names. And, you know, he better bring it right back. And he didn't bring it right back, so I was like, I'm calling the police. And I'm thinking, well, this is your brother. No. I'm calling the police. You know, you were close. How could you do that to your brother. I'm calling the police. It's the right thing to do. I was very torn.

Q. When was it that you called the police, or did you call the police?

A. Yeah, I did call the police.

Against these facts, we are satisfied that the motion judge correctly concluded that Kaminski operated his sister's car without her knowledge or consent. The policy of insurance issued by Skylands to Horan specifically excluded liability coverage to a person driving the insured's car without "a reasonable belief" that he is entitled to do so. Here, there is no question that Horan repeatedly made clear to her brother, by both words and deeds, that he was not entitled or authorized to drive her car.

Under these circumstances, Skylands was entitled to assert the exclusion provision in the policy, thereby denying coverage for this accident. Ryan v. LCS, Inc., 311 N.J. Super. 618 (App. Div. 1998), aff'd, 157 N.J. 251 (1999). Defendant's position arguing otherwise is not supported by the record.

Affirmed.

 

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A-2335-05T2

March 22, 2007