McGeehan, Bigelow and Jayne. The opinion of the court was delivered by Bigelow, J.A.D.
The question is whether a liability insurance policy issued by the defendant-appellant to the plaintiff-respondent covered a certain loss.
Plaintiff, who was an excavator, completed on June 10, 1950 the installation of an oil tank under the sidewalk in front of the building at Hudson Street and Roosevelt Avenue in Carteret, N.J. A suit for damages was instituted against the plaintiff by a third person, based on an accident resulting -- or so it was alleged -- from the plaintiff's negligence in failing to protect properly by barrier or otherwise, a depression that remained after the completion of the work, or that was occasioned by the sinking earth or cinders with which plaintiff had covered the tank. The accident occurred one month after plaintiff had completed his work. The insurance company refused to defend the suit, so the plaintiff himself defended, won the judgment, and brings the present action to recover the amount he had paid for counsel fees.
The printed policy form was evidently not intended for use in reference to the kind of business in which plaintiff was engaged. Yet the defendant company employed it for the purpose, with the result that the policy issued to plaintiff is most ambiguous.
The form provides space for insurance in respect to any of six different classes or divisions of hazards. The particular policy held by plaintiff insures up to certain amounts for "Division 1 -- Premises and Operations." The amount of insurance for the other divisions is "nil." So plaintiff, if covered at all, must claim under Division 1. Beneath the schedule of the six Divisions comes what is called "Coverage
Analysis -- Purposes of Use." And under the heading, "1. Premises-Operations" the following is typewritten:
"Excavation -- For cellars or foundations of buildings -- bridges or retaining walls and mass rock excavation in connection with dams (excavation in connection with street or road construction of tunneling to be separately rated)."
On the second page of the policy, under "Definition of Hazards," is printed:
"Division 1. Premises-Operations. The ownership, maintenance or use of the premises, and all operations during the Policy Period which are necessary or incidental thereto; including accidents (except accidents due to misdelivery) which occur after completion or abandonment of operations arising out of pick-up or delivery operations or the existence of tools, uninstalled equipment and abandoned or unused materials."
The policy shows the "Location of premises . . . . 619 Elizabeth Street, Perth Amboy, New Jersey & elsewhere in the State of New Jersey," and that the insured's interest in the premises is "tenant." The plaintiff was not tenant of the premises where the accident occurred and had no interest therein. But the company admits that the word "tenant" as a description of insured's interest in the premises in respect to which coverage is afforded, must be disregarded.
The defendant does not assert that the excavation for the tank was not an excavation for a cellar or foundation within the meaning of the coverage analysis.
The phrase in the definition of hazards, "operations * * * which are necessary or incidental thereto," is hard to harmonize with the rest of the policy. We would expect that the use of the premises must be incidental to the work of excavation, rather than the excavation be incidental to the use. We find that the policy covers all excavating operations at the ...