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WESTCHESTER FIRE INS. CO. v. CONTINENTAL INS. CO.

126 N.J. Super. 29 (1973)

312 A.2d 664

WESTCHESTER FIRE INSURANCE CO., RICHARD B. HOLCOMBE, ALICE HOLCOMBE AND WILBUR S. HOLCOMBE, PLAINTIFFS-APPELLANTS, v. THE CONTINENTAL INSURANCE COMPANIES, NEW JERSEY MANUFACTURERS INSURANCE CO., MOTOR CLUB FIRE & CASUALTY CO., JACKIE W. EISNER, ETC., DEFENDANTS-RESPONDENTS. ELMER RICHARD POTENT, GUARDIAN AD LITEM FOR RICHARD M. POTENT, AN INFANT, ELMER RICHARD POTENT AND CHARLOTTE POTENT, INDIVIDUALLY, PLAINTIFFS, v. JACKIE W. EISNER, HALLIE EISNER, ELMER EISNER, SR. AND RICHARD B. HOLCOMBE, SR., ETC., DEFENDANTS.

Superior Court of New Jersey, Appellate Division.

Decided November 27, 1973.

Attorney(s) appearing for the Case

Mr. Edward B. Meredith argued the cause for appellants Westchester Fire Insurance Co. and Holcombe (Messrs. Meredith, Meredith & Chase, attorneys).

Mr. Andrew J. Smithson argued the cause for respondent The Continental Insurance Companies (Messrs. Dietrich, Stockman & Lake, attorneys).

Mr. Richard D. Catenacci argued the cause for respondent New Jersey Manufacturer's Insurance Company (Messrs. Hughes, McElroy, Connell, Foley & Geiser, attorneys).

Mr. Jerome S. Lieb argued the cause for respondents Motor Club Fire & Casualty Co. and Eisner (Messrs. Lieb, Teich & Berlin, attorneys).

Mr. Frank V. Walsh, Jr. argued the cause for plaintiffs Potent. (Mr. Gregory V. Hopkins, on the brief).

Before Judges CARTON, SEIDMAN and GOLDMANN.

The opinion of the court was delivered by CARTON, P.J.A.D.

This case presents novel questions as to coverage afforded under automobile and homeowner's insurance policies by reason of the act of a passenger who threw a stick from a moving automobile, which struck a passing bicyclist. The basic issue is whether the injury sustained by the bicyclist was one "aris[ing] out of the ownership, maintenance or use of the owned automobile * * *" within the

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