Westchester Fire Ins. Co. v. Continental Ins. Co

In Westchester Fire Ins. Co. v. Continental Ins. Co., 126 N.J. Super. 29, 312 A.2d 664 (App.Div.1973), aff'd o.b., 65 N.J. 152, 319 A.2d 732 (1974), a bicyclist was injured when a piece of wood was thrown from a vehicle and hit him. The bicyclist sued not only the occupants of the vehicle, but their parents for "negligence in the care, control and discipline of their child." The parents looked to their homeowners insurer which, in turn, sought a declaration that the parent's automobile insurer was responsible. The homeowner's policies, like the Hartford policy here, excluded coverage for injuries arising out of the "ownership, maintenance, operation, or use . . . of automobiles." Id. at 41, 312 A.2d 664. The Court determined that a "substantial nexus" existed between the alleged injury and the use of the automobile in that the act that caused the injury was a "natural and reasonable incident or consequence" of the use of the vehicle. Westchester Fire, supra, 126 N.J. Super. at 38, 312 A.2d 664. Looking to the specific language of the policies, we found "the homeowners policy is specifically designed to exclude the coverage provided under language in the . . . automobile policy for injuries arising out of the use of the motor vehicle." Id. at 41-42, 312 A.2d 664. The Court concluded that because the injury was one "arising out of" the "use" of the automobile, the automobile insurer, not the homeowner's insurer, must defend and indemnify the insured. Ibid. In Westchester Fire Ins. Co. v. Continental Ins. Cos, in which a passenger in an automobile threw a stick out of a moving car, striking and injuring a passing bicyclist, we held that the automobile liability policies issued to the parents of the driver and passenger, which insured against any claim "arising out of the ownership, maintenance or use" of an automobile, provided coverage for the accident. The Court stated that "in the phrase 'ownership, maintenance or use,' the term 'use' is the key word," and this word encompasses "all proper uses of the vehicle not falling within the term 'ownership and maintenance.'" Id. at 36, 312 A.2d 664. Thus, although "the word 'operation' denotes the manipulation of the car's controls in order to propel it as a vehicle, . . . one can use a car without operating it." Ibid. The Court also stated that "the phrase 'arising out of' must be interpreted in a broad and comprehensive sense to mean 'originating from' or 'growing out of' the use of the automobile," and that "so interpreted, there need be shown only a substantial nexus between the injury and the use of the vehicle in order for the obligation to provide coverage to arise." Id. at 38, 312 A.2d 664. Consequently, the ultimate question in determining the scope of the coverage provided by such an automobile liability policy is "whether the negligent act which caused the injury, although not foreseen or expected, was in the contemplation of the parties to the insurance contract a natural and reasonable incident or consequence of the use of the automobile, and thus a risk against which they might reasonably expect those insured under the policy would be protected." Ibid. Applying this test, we concluded that "it was within the reasonable expectation of the parties" that the persons insured under the automobile liability policies would be "provided with protection against the consequences" of throwing a stick out of a car. Id. at 39, 312 A.2d 664. The Court also concluded that the homeowners' policies issued to the parents did not provide coverage, because the language of the homeowner's and automobile liability policies is "mutually exclusive" and the homeowner's policy "is specifically designed to exclude the coverage provided under language in the standard family automobile policy for injuries arising out of the use of the motor vehicle insured thereunder." Id. at 41-42, 312 A.2d 664.