Gibson, J.c.c. (temporarily assigned).
This declaratory judgment action requires a determination of the respective obligations of the above-named insurance companies concerning losses incurred as a result of an automobile accident for which each has potential responsibility. The factual setting, although relatively simple, is complicated by reason of the conflicting policy language, the impact of which calls into question not only "secondary" but also "tertiary" coverage issues. Although the issues thus raised have received attention at the federal level, there do not appear to be any reported New Jersey cases on point.
This matter comes before the court on cross-motions for summary judgment, all parties agreeing that the material facts are not in dispute. R. 4:46-1. Those facts show that on September 30, 1973, as a result of a two-car accident involving vehicles owned respectively by Pastore Orchards, Inc. and Warren Nixon, the driver in the latter vehicle was killed and her two passengers were seriously injured. Nixon's vehicle was insured by the plaintiff Prudential Property & Casualty Insurance Company (hereinafter Pru-Pac), which insurance included New Jersey No-Fault benefits. Those benefits were paid to the occupants of Nixon's car and Pru-Pac thereafter sought reimbursement from the companies providing coverage to the other vehicle.*fn1 The car owned by Pastore Orchards, Inc. was driven by Neil H.
Pastore, Jr.*fn2 and was potentially covered by three different policies of insurance:
(a) New Hampshire Insurance Company (New Hampshire) providing basic automobile liability insurance with limits of $100,000/$300,000;
(b) New Hampshire Insurance Company providing personal professional catastrophe indemnity excess coverage in the amount of $1,000,000;
(c) Fireman's Fund Insurance Company (Fireman's Fund) covering Neil Pastore's personal vehicle and any "temporary substitute vehicle" driven by him, with limits of $100,000/$300,000.
A separate suit had been instituted for the personal injuries of the driver and the passengers of the Nixon vehicle, which action culminated in a settlement for $495,000. Under its basic automobile liability policy New Hampshire paid its limits of $300,000. A dispute then arose between Fireman's Fund and New Hampshire as to whether the remaining monies would come from the policy insuring Pastore or the excess policy covering Pastore Orchards, Inc. To facilitate the settlement it was agreed that each company would contribute to the sum due and settle their differences at a later date. The present motion seeks to resolve that dispute and it is agreed that the resolution of that question will also determine the issue of responsibility to Pru-Pac, its right of recovery being admitted.*fn3
It appears clear from a review of the various policies that the $100,000/$300,000 policy issued by New Hampshire to Pastore Orchard, Inc. provided the primary coverage for this accident. No party suggests otherwise. It also appears clear that Fireman's Fund's policy is likewise designed to
provide primary insurance arising out of the ownership or use of its insured's automobile. However, since the vehicle operated by Neil Pastore was not his own, Fireman's Fund argues that the "temporary substitute vehicle" provision of its policy comes into play, thereby activating the "other ...