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Insurance Co. v. Government Employees Insurance Co.

Decided: September 13, 1978.

INSURANCE COMPANY OF NORTH AMERICA, PLAINTIFF-APPELLANT,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, A CORPORATION, BARBARA IRIS NICKEL, AN INFANT BY HER GUARDIAN AD LITEM, ANN NICKEL AND ANN NICKEL, INDIVIDUALLY, JOSEPH DURAN, MARY DURAN, DAVID DURAN, ROBERT J. STENSON AND THE REFORMATION LUTHERAN CHURCH OF ABSECON, DEFENDANTS-RESPONDENTS, AND CHARLES FIEDLER, MIRIAM FIEDLER AND MARTIN FIEDLER, RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Atlantic County.

Fritz, Botter and Ard. The opinion of the court was delivered by Botter, J.A.D.

Botter

[162 NJSuper Page 530] Plaintiff Insurance Company of North America (INA) appeals from an adverse determination on cross-motions for summary judgment.*fn3 The essential issue

on this appeal is whether INA's insurance policy issued to The Reformation Lutheran Church of Absecon (the church)*fn4 affording employer's nonownership liability coverage insures Robert Stenson against judgments that may be recovered against him in negligence actions brought by the Nickels, the Durans and the Fiedlers.

In January 1974 the church sponsored an outing for a youth group. Robert Stenson, a member of the church and the youth group, volunteered the use of his pick-up truck in transporting people who were attending the outing. During the outing, while Stenson was transporting some people from the picnic area, his vehicle was involved in an accident and his passengers were injured. Separate negligence actions were commenced against Stenson and the church, and these were consolidated. GEICO insured the Stenson vehicle and has paid its policy limits to injured claimants pursuant to an order entered in the underlying consolidated negligence action, in satisfaction of its obligation under its policy.*fn5 This declaratory judgment action was brought to determine whether INA affords Stenson additional coverage that may be available to satisfy the unmet portion of the injured parties' claims.

The Church owned no motor vehicles. It secured an automobile insurance policy which listed no automobiles, but in the place provided for the description of automobiles the policy stated: "As per employer's non-ownership endorsement attached." The kind of protection afforded by INA's policy in this case depends primarily on the terms of paragraph 2 of

the nonownership liability endorsement.*fn6 That endorsement provides in part:

It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability and for Property Damage Liability applies with respect to non-owned automobiles, subject to the following provisions:

1. Definitions. The words "non-owned automobile" shall mean a land motor vehicle, trailer or semitrailer not owned by, registered in the name of, hired by or loaned to the named insured. The word "automobile" wherever used in the policy, with respect to the insurance afforded under this endorsement, shall include "non-owned automobile."

2. Application of Insurance.

(a) The insurance applies only to (1) the named insured, and (2) any executive officer of the named insured, as insured, except as stated in subsections (1) and (2) of division (a) of the definition of Insured agreement of the policy and except with respect to any automobile owned by such officer or by a member of the same household.

(b) The insurance applies only to the use, by any person other than the named insured, of any non-owned private passenger automobile in the business of the named insured as stated in the declarations, and to the use in such business, by any employee of the named insured, of any non-owned automobile of ...


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