Opinion
DOCKET NO. A-5915-11T2
02-25-2013
JOANN ANGELO, as Administrator Ad Prosequendum for the heirs-at-law of MICHAEL A. CARLUCCI, deceased, and as General Administrator of the ESTATE OF MICHAEL A. CARLUCCI, deceased, and Individually, GIA ISABELLA CARLUCCI, an infant, by her Guardian ad Litem, JODI WISNIESKI, and JODI WISNIESKI, Individually, Plaintiffs, v. COUNTY OF ESSEX, CITY OF NEWARK, CITY OF NEWARK POLICE DEPARTMENT, CITY OF EAST ORANGE, CITY OF EAST ORANGE POLICE DEPARTMENT, ESTATE OF MICHAEL CASTELLANO, SPEARHEAD, INC., ESSEX COUNTY BOARD OF CHOSEN FREEHOLDERS, ESSEX COUNTY SHERIFFS OFFICE, DETECTIVE PATRICK LAGUERRE (Individually), DETECTIVE DARRYL SALTERS (Individually), STATE OF NEW JERSEY, DODD S. BRITTON, CORBERT EXPRESS, INC., Defendants, and HARLEYSVILLE INSURANCE COMPANY OF NEW JERSEY, Defendant-Appellant, and LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Respondent.
Dean R. Lospinoso argued the cause for appellant (Riker Danzig Scherer Hyland & Perretti, L.L.P., attorneys; Lance J. Kalik, of counsel; Mr. Lospinoso and John Atkin, on the brief). Dana C. Argeris argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Ms. Argeris, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-527-09.
Dean R. Lospinoso argued the cause for appellant (Riker Danzig Scherer Hyland & Perretti, L.L.P., attorneys; Lance J. Kalik, of counsel; Mr. Lospinoso and John Atkin, on the brief).
Dana C. Argeris argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Ms. Argeris, on the brief). PER CURIAM
Defendant Harleysville Insurance Company of New Jersey (Harleysville) appeals from orders entered by the Law Division on June 29, 2012, granting a motion for summary judgment in favor of defendant Liberty Mutual Insurance Company (Liberty Mutual), and denying its cross-motion for summary judgment. We affirm.
This appeal arises from the following facts. On January 16, 2007, Michael Carlucci (Carlucci) was riding as a passenger in a Nissan 350Z, which was owned and being operated by Michael Castellano (Castellano). Castellano's vehicle was being chased by police officers from East Orange and Newark, when it collided with a van owned by Corbert Express, Inc., which was being driven by Dodd S. Britton (Britton). Castellano's car then struck a building. Castellano and Carlucci were ejected from the car, and they died as a result of the injuries sustained in the collision.
Castellano's Nissan was insured under a commercial auto insurance policy that Harleysville had issued to Spearhead, Inc. (Spearhead), a clothing store owned by Castellano's father. Although Spearhead did not own, lease, hire or borrow the Nissan and the car was not used in Spearhead's business, Harleysville's agent, F.M. Christiano Insurance Agency, Inc. (FMC), asked Harleysville to list the car as a covered auto under Spearhead's policy.
In addition, Liberty Mutual had issued a personal auto insurance policy to Castellano's wife, Dawn Mullen (Mullen), which was in effect when the accident occurred in January 16, 2007. Castellano was residing with Mullen at that time. Mullen's Acura was the only vehicle identified as a covered auto under the Liberty Mutual policy.
In January 2009, plaintiffs filed a complaint in the Law Division against Castellano, Spearhead and other defendants. Harleysville defended Spearhead under a reservation of rights. In an amended complaint filed on January 29, 2010, plaintiffs sought a judgment declaring that Harleysville was obligated to provide Spearhead with coverage for the claims arising from the January 16, 2007 accident. They also sought a judgment declaring that Liberty Mutual was obligated to provide coverage to Castellano pursuant to Mullen's policy.
In March 2012, plaintiffs settled their claims against all parties other than Liberty Mutual, which chose not to participate. Under the settlement, Harleysville agreed to pay Carlucci's Estate $76,960.28. As part of the settlement, Carlucci's Estate assigned its rights against Liberty Mutual to Harleysville.
Britton also brought a lawsuit against Castellano's Estate for injuries he sustained in the accident. In that action, Britton asserted claims against FMC and sought coverage under the Harleysville and Liberty Mutual policies. Britton settled his claims against Castellano's Estate and FMC. Harleysvillle and Liberty Mutual agreed to be bound by the coverage determination rendered in this action.
Thereafter, Liberty Mutual filed a motion for summary judgment, seeking dismissal of all claims and cross-claims asserted against it. Liberty Mutual argued that it was not obligated to provide coverage to Castellano. Harleysville opposed Liberty Mutual's motion and filed a cross-motion seeking summary judgment, arguing that Castellano was entitled to coverage under the Liberty Mutual policy, and that the policy provided primary coverage for the claims against Castellano.
The trial court considered the motions on June 29, 2012. The court concluded that Castellano was not entitled to coverage under the Liberty Mutual policy. The court accordingly entered orders granting Liberty Mutual's motion and denying Harleysville's cross-motion. This appeal followed.
Harleysville argues that the trial court erred by concluding that Castellano was not entitled to coverage under the Liberty Mutual policy. We do not agree.
Summary judgment may be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We apply the same standard when reviewing an order granting or denying summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Here, there was no genuine issue of any material fact and the trial court correctly determined that Liberty Mutual was entitled to judgment on the coverage issue.
It is undisputed that Castellano was an insured under the Liberty Mutual policy; however, he was not covered for claims arising from his use of the Nissan. As the trial court noted, the Liberty Mutual policy excludes coverage because Castellano's Nissan was not listed as a covered auto in the declarations, and neither Castellano nor Mullen asked Liberty Mutual to ensure the car, as required by the policy. The record supports the court's determination.
The Liberty Mutual policy states in pertinent part:
A. We will pay damages for "bodily injury" or "property damage" for which any "insured" becomes legally responsible because of an auto accident . . . . We have no duty to defend any suit or settle any claim for "bodily injury" or "property damage" not covered under this policy.
B. "Insured" as used in this Part means:
1. You or any "family member" for the ownership, maintenance or use of any auto or "trailer."
2. Any person using "your covered auto."
3. For "your covered auto," any person . . . but only with respect to legal responsibility for acts or omissions of a person for whom coverage is afforded under this Part.
4. For any auto . . ., other than "your covered auto," any other person . . . but only with respect to legal responsibility for acts or omissions of you or any "family member" for whom
coverage is afforded under this Part. This provision (B.4) applies only if the person . . . does not own or hire the auto . . . .
The Liberty Mutual policy defines the term "[y]our covered auto" to include any automobile listed on the declaration page, or a private passenger automobile or van "on the date you become the owner[.]" This latter definition only applies, however, if the insured acquires the vehicle during the policy period and asks the company to insure the vehicle within thirty days after he or she becomes owner.
The Liberty Mutual policy also included Endorsement AS11890399, which replaced the definition of "[y]our covered auto" in the policy with the following:
1. A private passenger automobile of a private passenger or station wagon type that is owned or hired by a natural person and is neither used as a public or livery conveyance for passengers nor rented to others with a driver; a motor vehicle with a pickup body, a van, or a camper type vehicle used for recreational purposes by an individual or by husband and wife who are residents of the same household, not customarily used in your occupation, profession or business other than farming or ranching; and a motorcycle . . . .
2. Any vehicle as defined above shown in the Declarations.
3. Any of the following types of vehicles on the day you become the owner:
a. a private passenger auto; or
b. a pickup, van, not customarily used in your occupation, profession or business other than farming or ranching.
The endorsement states that section 3 of the definition only applies if:
a. you acquire the vehicle during the policy period;
b. you ask us to insure it within [thirty] days after you become the owner; and
c. with respect to a pickup or van, no other insurance policy provides coverage for that vehicle.
The Liberty Mutual policy also included Endorsement AS22400905, which defined "[y]our covered auto" and states in pertinent part:
1. Any vehicle shown in the Declarations.
2. A newly acquired auto.
3. Any trailer you own.
4. Any auto or trailer you do not own while used as a temporary substitute for any other vehicle described in this definition which is out of normal use because of its:
a. Breakdown;
b. Repair;
c. Servicing;
d. Loss; or
e. Destruction.
Endorsement AS22400905 further provides states that if the "newly acquired auto" is in addition to the car or cars listed in the declarations, then "you must ask us to insure it within [thirty] days after you become the owner." The endorsement states that insured person need not ask the company to insure the "newly acquired auto" if it is a replacement for a vehicle listed in the declarations.
Castellano's Nissan did not meet the definitions of a "covered auto" in the Liberty Mutual policy. It is undisputed that the Nissan was not listed as a covered vehicle in the declarations. In fact, the Nissan was listed as a covered vehicle under the Harleysville Policy. Moreover, neither Castellano nor his wife asked Liberty Mutual to cover the Nissan after Castellano became its owner. Therefore, Castellano was not entitled to coverage under the policy for the injuries arising from his use of the Nissan.
Harleysville maintains, however, that Castellano's car falls within the definition of a "covered auto" under Endorsement AS11890399. Again, we disagree. As we indicated previously, section one of that definition states that the term "[y]our covered auto" includes a "private passenger automobile of a private passenger or station wagon type that is owned or hired by a natural person and is neither used as a public or livery conveyance for passengers nor rented to others with a driver[.]" However, section two of that definition indicates that the vehicles included in section one are only covered if identified in the declarations.
Moreover, as the trial court recognized, Liberty Mutual could not have intended to provide coverage to "any car that Mr. Castellano would choose to drive." The court correctly reasoned that section one and two of the definition of a "covered auto" in the endorsement must be read together, and coverage would not extend to "any car" but only to those vehicles that are described in section one of the definition and are identified in the declarations.
Harleysville further argues that there is an ambiguity in the policy's definitions of "covered auto." Harleysville therefore contends that the court should interpret the policy to provide coverage to claims arising from Castellano's use of the Nissan because that would be consistent with the reasonable expectations of the insured. See Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001) (citing Gibson v. Callaghan, 158 N.J. 662, 671 (1999)). We cannot agree.
As we have explained, the relevant provisions of the Liberty Mutual policy are not ambiguous. Indeed, Harleysville's interpretation of the definition of a "covered auto" in Endorsement AS11890399 is based on a strained and flawed reading of that definition. "'In the absence of any ambiguity, courts should not write for the insured a better policy of insurance than the one purchased.'" Ibid. (quoting Gibson, supra, 158 N.J. at 670).
Furthermore, the evidence before the trial court indicated that Mullen had no expectation that Castellano's Nissan would be covered under her policy. Mullen testified at her deposition that she was aware that Castellano's Nissan was listed as a covered auto under Spearhead's policy. She said that that all of Castellano's cars had been insured under Spearhead's policy. Mullen explained that Castellano's father agreed to insure Castellano's automobile because he had not paid Castellano's college expenses.
Mullen additionally testified that she never spoke with Castellano about insuring his car under her policy. She stated that Castellano's car was not placed on her policy because Castellano "had his own insurance." Thus, Mullen knew that Castellano's car was insured under the Harleysville policy and she had no expectation that it would be a covered auto under her policy.
We have considered Harleysville's other contentions and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION