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New Jersey Property Liability Guaranty Assoc. v. Brown

Decided: August 6, 1980.

NEW JERSEY PROPERTY LIABILITY GUARANTY ASSOC., AS SUCCESSOR TO INTERSTATE INSURANCE COMPANY, NOW SOLVENT, PLAINTIFF-RESPONDENT,
v.
RAYMOND BROWN AND LEONARD SHAW, DEFENDANTS-APPELLANTS *FN1



On appeal from Superior Court, Law Division, Monmouth County.

Seidman, Michels and Furman. The opinion of the court was delivered by Seidman, P.J.A.D.

Seidman

[174 NJSuper Page 630] The question presented by this appeal is whether a homeowners insurance policy issued to defendant Leonard Shaw by plaintiff's predecessor, Interstate Insurance Company, covered an occurrence at Shaw's business office when a revolver which he was showing to defendant Raymond Brown was accidentally discharged, resulting in serious bodily injury to Brown. The

latter brought suit against Shaw, charging him with "negligently, carelessly, wrongfully and intentionally discharg[ing] a firearm causing the bullet to strike [Brown]." Thereafter, plaintiff instituted a declaratory judgment action against Brown and Shaw, seeking a determination that it was not obligated under the policy to defend or indemnify its insured. On motion and cross-motion for summary judgment, the trial judge concluded that the incident was not covered by the policy and entered judgment in favor of plaintiff, Brown and Shaw appealed.

Specifically at issue is the interpretation of an exclusion in the policy with respect to

To the extent pertinent here, the facts are essentially undisputed. On the evening in question Brown called upon his friend Shaw, a bail bondsman, at the latter's office. The parties agree that the visit was social and unrelated to the business. According to Brown, Shaw received a telephone call from someone "stating that they were coming for their money." Later, in the course of their conversation, Shaw related to Brown how he had been assaulted in his office a few days earlier. He said that "[i]f somebody comes now, I got something for them." He displayed a .38-caliber revolver which he took from his desk drawer. In some manner, the gun was discharged and the bullet struck Brown.

Shaw's deposition discloses that he had purchased the gun for use in his business and would carry it when transporting large sums of money. He had kept another gun, an automatic pistol, in his office, but it was stolen prior to the shooting incident. After the assault Shaw brought the revolver to the office.

In granting the insurer's motion for summary judgment the trial judge stated the issue to be whether the incident had arisen out of a business pursuit. He reasoned:

There is no doubt in this particular case that the weapon was held for purposes of a business pursuit. Certainly there was a dual purpose; but this was a business pursuit. If we follow the logical extention of that it was unfortunate

the incident occurred as an accident and the weapon was being shown to someone else . . . and I find that the incident occurred as the result of a business pursuit.

We do not agree with the trial judge's concept of the exclusionary clause in the policy.

It is to be noted preliminarily that the clause first removes from coverage claims for injury or damage arising out of business pursuits. But, as an exception, activities ordinarily incident to nonbusiness pursuits are included within the coverage of the policy. The modifying language of the exception clearly narrows the scope of the exclusion that precedes it. See Gulf Ins. Co. v. Tilley , 280 F. Supp. 60, 64 (N.D.Ind.1967), aff'd 393 F.2d 119 (7 Cir. 1968). Thus, the inquiry is not whether the insured was engaged in a business pursuit at the time of the accident, for the clause plainly has reference to accidents that occur in the carrying on of the business. See Neal v. Celina Mutual Ins. Co. , 522 S.W. 2d 179 (Ky.1975). Rather, ...


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