[87 NJSuper Page 108] This is an action for declaratory judgment initiated by plaintiffs Travelers Insurance Company (hereinafter Travelers) and Kowalsky's Express Service (hereinafter Kowalsky) for a determination of their duty as well as that of defendant Nationwide Insurance Company (hereinafter Nationwide) to defend and indemnify certain alleged insureds in an action now pending before the United States District Court for the District of New Jersey.
The basic facts of this case, which are not in dispute, indicate that on May 10, 1962 Bryant W. Tymkow was operating a tractor-trailer owned by Walter M. Tymkow. This vehicle was in a collision on the Walt Whitman Bridge ramp leading to the Black Horse Pike, with an automobile owned and operated by Alice Duncan Brooks. At the time of the accident Bryant W. Tymkow was returning from Plymouth Meeting, Pennsylvania, with a load of lime he had purchased at the request of Walter M. Tymkow. He was on the business of Walter M. Tymkow and was not on any business for Kowalsky, but the vehicle being driven by Bryant W. Tymkow did have on its side an I.C.C. registration certificate bearing number 29919 and Kowalsky's name. From time to time Walter M. Tymkow did do hauling in interstate commerce for Kowalsky on a truck-lease basis. The I.C.C. plate had been placed on the vehicle in question approximately a month before the accident and had not been removed.
Nationwide issued a policy of insurance to Walter M. Tymkow, which policy was in full force and effect at the time of the accident. Travelers issued a policy of insurance to Kowalsky, which policy was in full force and effect at the time of the accident.
The complaint in the United States District Court action is against Bryant W. Tymkow, Walter M. Tymkow and Kowalsky's Express Service, jointly, severally and in the alternative, and avers that Bryant W. Tymkow negligently caused the afore-mentioned collision while acting as the agent, servant or employee of Walter M. Tymkow and Kowalsky. The complaint further alleges that the motor vehicle, at the time and place of the accident, was under lease to Kowalsky.
In testimony before this court on February 9, 1965 both Walter M. Tymkow and Bryant W. Tymkow stated that the tractor-trailer involved in the collision was not at the time under lease to Kowalsky and was not in fact on any business for him. The pretrial order in this matter, dated November 5, 1964, states in paragraph three: "The plaintiffs further aver that at the time of the said collision the vehicle was
being used in the business of the defendant Walter M. Tymkow, and deny that the plaintiff Kowalsky's Express Service was in any way in control of or responsible for the operation of the motor vehicle."
On October 4, 1963 a motion for summary judgment was made in the United States District Court by Kowalsky. In the brief he filed appears the following paragraph:
"On or about May 10, 1962, defendant, Bryant W. Tymkow was operating a truck other than the one specified in the aforementioned leasing agreement with Kowalsky's Interstate Commerce Commission permit plates attached thereto. He, at that time, was not using the truck on any of Kowalsky's business. Kowalsky had no knowledge of this use of plates and never consented to such a use."
With the brief was also filed the affidavit of Thomas Rocap stating, in part, as follows:
"4. At no time did defendant Kowalsky ever have a leasing agreement for the above mentioned tractor truck.
5. At no time did defendant Kowalsky ever authorize, permit, sanction or allow defendants Tymkow to remove Kowalsky's I.C.C. identification plates from a leased vehicle for use on a non-leased vehicle.
6. At no time did defendant Kowalsky ever authorize, permit, sanction or allow defendants Tymkow to utilize Kowalsky's I.C.C. identification plates except in pursuance of Kowalsky's business.
7. At the time of the accident defendants Tymkow were not engaged in the performance of any services for defendant Kowalsky and were not authorized to utilize Kowalsky's I.C.C. identification plates in the business in which they were then engaged."
Plaintiffs Travelers and Kowalsky demand judgment in this case construing the Nationwide insurance policy and declaring that said policy includes Kowalsky as an additional insured by reason of the omnibus clause, as an "organization legally responsible for the [vehicle's] use"; that primary coverage in this matter rests with Nationwide; and that Nationwide must defend the suit in the United States District Court, relieving Travelers from the duty to defend and reimbursing Travelers for costs and fees incurred as the result of the wrongful refusal of Nationwide to assume its obligations.
Defendant Nationwide denies that Kowalsky is an additional insured as per the definition of insured in Nationwide's policy, and counterclaims that the full coverage in this matter rests with Travelers and that Travelers must defend the suit in the federal court, relieving it of this duty with reimbursement for costs and fees already expended.
"On facts, strikingly simple, neither complex nor conflicting, we have again the problem of an Insurer who has written the policy and taken the Assured's premium urging him to go elsewhere, tentatively if not finally, because another insurer is, or ought to, or may be, liable for the whole, half, or part a loaf. In the process the moving Insurer generally garbs itself in the appealing robes of some assured so that, casting itself in a strange role, it asserts what it so often denied that the policy should be liberally construed and, by a bare toe hold manages to make itself enough of a party to ...