ESTATE OF DOLORES DANZE v. LIBERTY MUTUAL INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6029-09T3

ESTATE OF DOLORES DANZE, by her

Executor, PHILIP DANZE and

PHILIP DANZE, Individually,

Plaintiffs-Appellants,

v.

LIBERTY MUTUAL INSURANCE COMPANY,1

Defendant-Respondent,

and

ALLSTATE INSURANCE and ADAM KATZ,

Defendants.

____________________________________________________

Argued May 25, 2011 Decided June 13, 2011

Before Judges Fisher, Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2508-04.

Phillip B. Linder argued the cause for appellants.

Robert D. Kretzer argued the cause for respondent (Lamb, Kretzer, Reinman & Roselle, attorneys; Mr. Kretzer, on the brief).

PER CURIAM

This is the second time this matter has been before us. In a prior appeal, we considered the propriety of summary judgments entered in favor of plaintiffs Dolores and Philip Danze, who suffered personal injuries when their vehicle was struck by a Honda Prelude owned by Robert Katz and driven by his son, defendant Adam Katz, who was then seventeen years old. The Prelude was covered by a policy issued to Robert Katz by defendant Liberty Mutual Fire Insurance Company.

Claiming Adam was also a resident of the household of his mother (Janis Goldberg) and stepfather (Ross Goldberg), plaintiffs commenced this declaratory judgment action against both Liberty Mutual, which was also the automobile insurer for the Goldbergs, and Allstate Insurance Company, which provided umbrella coverage to Ross Goldberg. In considering motions for summary judgment regarding Liberty Mutual's obligations, the motion judge held that Adam was covered because he was a resident of the Goldberg household and rejected Liberty Mutual's contention that coverage was excluded by the policy's Exclusion B-3. Another judge later granted summary judgment, in light of the other judge's factual determinations, in favor of plaintiffs and against Allstate.

Both Liberty Mutual and Allstate appealed. We reversed and remanded based on our determination that the judge who summarily declared Liberty Mutual's obligations mistakenly failed to consider relevant evidence that raised genuine questions of fact regarding Adam's residence in the Goldberg household; we also reversed the summary judgment entered against Allstate because it was anchored to the mistaken factual determination made regarding Liberty Mutual. Danze v. Katz, Nos. A-0677-07 and A-1009-07 (App. Div. Mar. 9, 2009) (slip op. at 10-12). As for the issues surrounding Exclusion B-3, we recognized that its "interpretation . . . may be susceptible to resolution by way of summary judgment" but "decline[d] to decide the question in the first instance, particularly in light of the absence of sworn statements or other evidential material regarding the adoption and use of such provisions in automobile insurance policies." Id. at 15-16.

Conforming to our mandate, Judge Dennis R. O'Brien, who had not entered any of the earlier orders granting summary judgment, conducted an evidentiary hearing on June 28, 2010. At that time, Janis Goldberg and a Liberty Mutual representative testified; it was also then stipulated that Adam was a "family member" of the Goldberg household.

The essential dispute Judge O'Brien was required to decide was whether the exception to Exclusion B-3 applied.2 That determination turned on whether Janis "maintained" Adam's vehicle. Judge O'Brien found as a fact that although Janis testified she "occasionally gave Adam money for his use," she could not . . . point to any outlay of any funds which were used for any type of vehicle maintenance or repair" (emphasis added). This is a finding of fact that is entitled to our deference. See, e.g., Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). And, we additionally conclude that the judge's implicit determination that merely providing Adam with money, which he was entitled in his own discretion to spend as he wished, was not the type of circumstance that would support a claim that Janis was "maintaining" Adam's vehicle.

With this brief amplification, we reject plaintiffs' arguments in support of their appeal of the judgment entered in favor of Liberty Mutual on August 2, 2010, and affirm substantially for the reasons set forth in Judge O'Brien's comprehensive and thoughtful oral opinion.

Affirmed.

1This defendant's correct name is Liberty Mutual Fire Insurance Company.

2Exclusion B-3 states:

We do not provide Liability Coverage for the ownership, maintenance or use of:

. . . .

3. Any vehicle, other than "your covered auto," which is:

a. Owned by any "family member"; or

b. Furnished or available for the regular use of any "family member."

However, this Exclusion . . . does not apply to your maintenance or use of any vehicle which is:

a. Owned by a "family member"; or

b. Furnished or available for the regular use of a "family member."