Eastwood, Jayne and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
The defendant Bankers Indemnity Insurance Company appeals from the judgment entered in favor of the plaintiff William Van Der Veen and against the defendant, in an action for declaratory judgment, directing that the insurer shall defend, for its insured, an action for damages instituted by a third party against the insured and shall be obligated to pay any judgment that might be returned against the insured in the negligence action.
Plaintiff had an agreement to excavate and install an underground oil tank at premises owned by Joab Realty Company, Inc., at 268 Main Street, Paterson, New Jersey. He asserts that he had excavated a sufficient area, placed the oil tank in position on October 3, 1951, refilled the area, and had completed his job. Thereafter, one Elizabeth Van Seters instituted an action against William Van Der Veen, plaintiff herein, and Joab Realty Company, Inc., for the recovery of damages for injuries allegedly suffered by her when, on October 13, 1951, she fell in the area of the sidewalk used by the public where the oil tank installation had been made. At the time of the accident, while the excavation had been filled, the cement sidewalk had not been re-laid.
The insurance company refused, upon Mr. Van Der Veen's request, to defend on his behalf the aforementioned action. Thereupon, Van Der Veen instituted an action in the Superior Court, Law Division, for a declaratory judgment defining the insurer's responsibility under the contract of insurance which had been previously entered into by the parties.
The defendant moved for a summary judgment and the plaintiff countered with a similar motion for summary judgment for the relief sought.
The court determined that the contractor's policy in question obligated the insurance company to defend the suit instituted by Elizabeth Van Seters and to pay any judgment that might be obtained against Van Der Veen.
The appellant contends that the scope of the policy restricts coverage to operations occurring on the insured's own premises or place of business or at such place as he was actually engaged in servicing or installing oil burners or oil tanks; that under the policy completed or abandoned operations are excluded from coverage; that the defendant insurance company is not required to defend the action, since the claim is not one insured against. The plaintiff argues that the defendant's contentions are unmeritorious and that the Law Division correctly decided the issue.
Under the terms of defendant's policy, LMC 208350, plaintiff's business was classified as "Oil burner installation" and under the hazards covered he was protected for damages for which the insured might be obligated to pay arising out of injuries sustained at insured's premises "26 N. Straight St., Paterson, N.J. and elsewhere in the State of New Jersey." Under "Item 4 -- Purposes of Use, 1. Premises -- Operations" is explained as follows:
"Oil tank installation assigned to manual classification; 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 or tunneling to be separately rated).
Cement or concrete sidewalk, driveway, yard, airport runway or warming apron construction. Oil burner installation or service-commercial. Oil burner installation or service-domestic."
"Definition of Hazards" provides:
"Division 1. Premises -- Operations. The ownership, maintenance or use of the premises, and all operations during the policy period which ...