The parties are seeking a declaratory judgment under N.J.S.A. 2A:16-50 et seq. to determine liability insurance coverage under certain policies issued by Providence Washington Insurance Co. (Providence), which insures Charles Harvey Walter, and Glens Falls Insurance Co. (Glens Falls), which insures Harry P. John. Eileen M. Carey has sued Walter for personal injuries resulting from an accident in which Walter was driving an automobile owned by John. The essential facts have been stipulated and the case was submitted on briefs.
John left his automobile at Fisher Chevrolet to be spotpainted. Fisher did not do such work, so the automobile was taken to Charles H. Walter, t/a Rishel's Auto Body, which did automobile painting and body repair work. Walter would neither pick up nor deliver vehicles for Fisher.
John's automobile was left overnight and parked outside Walter's shop contiguous to his residence. After the shop was closed Walter went on an errand for his wife. Because Walter's own automobile was not functioning, Walter drove John's automobile for the errand; the accident occurred while Walter was on his way home from the errand.
To determine which insurer should afford coverage to Walter the court must interpret the automobile business exclusion clause of John's automobile liability policy as well as the coverage provisions of Walter's garage liability policy. Plaintiff asserts that the automobile business exclusion of the Glens Falls policy does not apply to Walter. The exclusion provides that coverage does not apply:
(g) to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business, * * *
"automobile business" means the business or occupation of selling, repairing, servicing, storing or parking automobiles; * * *.
Glens Falls seeks to have plaintiff defend Walter solely under the garage liability policy in which Walter is the named insured. One of the risks which Providence assumed was:
(1) The ownership, maintenance or use (including loading and unloading) of any automobile for the purpose of garage operations, and (2) the occasional use for other business purposes and the use for nonbusiness purposes of any automobile owned by or in the charge of the named insured and used principally in garage operations, * * *
"garage operations" means the ownership, maintenance or use of the premises for the purposes of a garage and all operations ...