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McDonald v. Home Ins. Co.

Superior Court of New Jersey, Appellate Division
Nov 10, 1967
97 N.J. Super. 501 (App. Div. 1967)

Summary

In McDonald, the court held that a homeowner's policy with a similar exclusion required the insurer to defend the policy owners in a suit against them as parents of a minor driver who had allegedly caused the auto accident.

Summary of this case from Berger v. U.S. Fidelity Guar. Co.

Opinion

Argued October 30, 1967 —

Decided November 10, 1967.

Before Judges GAULKIN, LEWIS and KOLOVSKY.

Mr. Sheldon B. Brand argued the cause for appellants ( Messrs. Wharton, Stewart Davis, attorneys; Mr. Richard H. Thiele, Jr., on the brief).

Mr. Richard J. Badolato argued the cause for respondent ( Messrs. Schneider Morgan, attorneys).


The McDonalds sued the Home Insurance Company (Home) upon a "Homeowner's Policy" alleging that thereunder Home was obliged to defend them against an action by Walter Edward Dorman, Sr., individually and as general administrator and administrator ad prosequendum of the estate of Walter Edward Dorman, Jr., deceased (Dorman) for damages for the death of his son. Home's motion for summary judgment was granted and the McDonalds appeal.

Dorman's action against the McDonalds alleged that they were the parents of an unemancipated infant son, Mickey, who resided with them; that they "did exercise control over the said Mickey * * *" whom they knew "to be a careless and reckless and incompetent driver" and "to operate motor vehicles with willful, wanton and reckless disregard for the safety of others" and "to consume alcoholic beverages in excess and to operate motor vehicles while under [their] influence * * *" and "to be irresponsible towards the property of his own and others, and to disregard the law and the rights and safety of others"; that the McDonalds "had the ability to control * * * Mickey * * * and knew * * * of the necessity for exercising said control * * * and * * * had the opportunity * * *" to do so; that "they failed to exercise reasonable care * * * to control * * * Mickey * * * in that they caused and permitted the purchase of an automobile for the said Mickey," registered in his name, knowing that his use of the automobile "was likely to result in the injury to another as a natural and probable consequence"; that the McDonalds were negligent in that "they took no reasonable or timely steps to protect the said * * * Dorman, Jr. * * * from the negligence of * * * Mickey * * * or from his known propensities and bad driving habits * * *," and as a result Mickey, with Dorman, Jr., as a passenger, drove into a tree, killing the latter.

The policy provided that Home would "defend any suit against the insured * * * even if such suit is groundless, false or fraudulent * * *." The McDonalds called upon Home to defend them against the Dorman suit, but Home refused on the ground that the policy provided it did not apply "to the ownership, maintenance, operation, use, loading or unloading of automobiles while away from the premises * * *."

The McDonalds then retained counsel to defend them against the Dorman action. In due course that action was settled for $2,000. The McDonalds then instituted this action to recover the $2,000 plus $2,903.02, the cost of defending that action. Home has stipulated that it does not dispute the propriety or reasonableness of these disbursements and, if it was obliged to defend the McDonalds, judgment may be entered against it for $4,903.02.

We hold that Home was obliged to defend the McDonalds against the Dorman action. The action against the McDonalds was not based upon "the ownership, maintenance, operation, use, loading or unloading of * * * automobiles * * *," even though the immediate cause of the injury and death of Dorman, Jr. was Mickey's operation of the automobile. The action was based upon their alleged negligence in failing to supervise and control their child, knowing of his violent and dangerous habits. The theory upon which the complaint was framed is not novel. Zuckerbrod v. Burch, 88 N.J. Super. 1 , 5 ( App. Div. 1965); see also Stoelting v. Hauck, 56 N.J. Super. 386 , 402-403 ( App. Div. 1959), reversed on other grounds 32 N.J. 87 (1960); Annotation, 36 A.L.R.2d 782 (1959); Restatement, Torts 2 d, §§ 308, 316. The details of the alleged negligence were spelled out in the complaint and included causing and permitting Mickey to purchase and operate the automobile, but nowhere was it alleged that the McDonalds owned, maintained, operated or used the automobile, or that the automobile was negligently driven by them or their agent.

In short, regardless of the truth of its allegations, there was nothing in the Dorman complaint which brought the claim within the policy exclusion. And, as the policy expressly provides, even if the Dorman action were "groundless" in law or "false or fraudulent" in fact, Home was required to defend the McDonalds against it. As Judge (now Justice) Francis said in Danek v. Hommer, 28 N.J. Super. 68 , 77 ( App. Div. 1953), affirmed o.b. 15 N.J. 573 (1954): "Liability of the insured to the plaintiff is not the criterion; it is the allegation in the complaint of a cause of action which, if sustained, will impose a liability covered by the policy."

We hold that here the complaint did allege a cause of action covered by the policy, and we reverse. Pursuant to the stipulation above mentioned, we remand the case to the trial court with direction that it enter judgment in favor of plaintiffs for $4,903.02 with interest and costs.


Summaries of

McDonald v. Home Ins. Co.

Superior Court of New Jersey, Appellate Division
Nov 10, 1967
97 N.J. Super. 501 (App. Div. 1967)

In McDonald, the court held that a homeowner's policy with a similar exclusion required the insurer to defend the policy owners in a suit against them as parents of a minor driver who had allegedly caused the auto accident.

Summary of this case from Berger v. U.S. Fidelity Guar. Co.

In McDonald the insured did not own the vehicle but had negligently permitted his minor son, over whom he exercised control, to own a vehicle.

Summary of this case from Huggins v. Tri-County Bonding Co.

In McDonald v. Home Insurance Co., 97 N.J.Super. 501, 235 A.2d 480 (1967), the Court required a homeowner's insurer to extend coverage to the parents of an "unemancipated infant son" who were sued for permitting their son to acquire an automobile with knowledge of his dangerous propensities. It was not alleged that the parents owned, operated or used the automobile and the Court considered that fact significant in ruling the action against the parents did not arise out of ownership or operation of an automobile.

Summary of this case from Ins. Co. of North America v. Waterhouse

In McDonald, the court held that the homeowner's insurance carrier was obligated to defend: "The action against the McDonalds was not based upon `the ownership, maintenance, operation, [or] use,... of... automobiles....'... The action was based upon their alleged negligence in failing to supervise and control their child, knowing of his violent and dangerous habits."

Summary of this case from Allstate Ins. Co. v. Moraca

In McDonald, the plaintiffs sued Home Insurance Company (Home) contending that their homeowner's policy required Home to defend them in an action brought by Walter Dorman for damages for the death of Dorman's son. Dorman's son was a passenger in a car owned by plaintiff's minor son, Mickey McDonald, and was killed when Mickey drove the car into a tree.

Summary of this case from Allstate Ins. Co. v. Moraca
Case details for

McDonald v. Home Ins. Co.

Case Details

Full title:ROBERT E. McDONALD AND SARAH S. McDONALD, PLAINTIFFS-APPELLANTS, v. THE…

Court:Superior Court of New Jersey, Appellate Division

Date published: Nov 10, 1967

Citations

97 N.J. Super. 501 (App. Div. 1967)
235 A.2d 480

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