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Arrow Industrial Carriers Inc. v. Continental Insurance Co.

Decided: January 26, 1989.


Gottlieb, J.s.c.


Plaintiff Arrow Industrial Carriers, Inc. ("Arrow") and defendant The Continental Insurance Company of New Jersey ("Continental") have each moved for partial summary judgment. A resolution of the basic issue presented has not been decided previously by a reported decision of the courts of this State. That issue is whether an inland marine policy which provides insurance coverage for cargo damages and which itemizes coverage resulting from a collision between the conveyance and any other vehicle or object, clearly excludes coverage for a collision between the cargo and a bridge, where the truck conveyance is not involved in a collision. Because of the overall ambiguity in the policy's language, the court concludes that coverage must be afforded.

Arrow filed a complaint against Continental, The Dilks Agency, Inc. ("Dilks"), Gerald Watson, Pat Wisniewski and John Doe and Jane Doe, the latter two being fictitious parties under R. 4:26-4. It is claimed that the four individual defendants are employees of Dilks. The complaint has four counts and seeks: in the first count, a determination that an insurance policy issued to Arrow by Continental provides liability coverage for a specific event; in the second count, a reformation of the policy in the event the insurance policy does not provide that coverage;

in the third count, a finding that Dilks was professionally negligent in providing insurance coverage and, moreover, that Dilks made certain false representations as to the extent of that coverage; and, in the fourth count, the staying of any potential litigation involving the underlying claim against Arrow.

The present motions relate solely to the first count of the complaint. There are no disputed material facts, R. 4:46-2, as to the issues in the first count, even though facts are in dispute concerning the other causes of action. Therefore, the court is able to rule affirmatively on the motions. The court begins by reciting those unchallenged facts.

The Facts.

Arrow was incorporated in December 1985, having Lee R. Lieber ("Lieber") and Richard O'Donnell as its principals. Its business is to haul vehicles, machinery and forklifts from place to place. Lieber selected Dilks to secure appropriate business insurance coverage. Dilks obtained a motor truck cargo policy with Colonial Penn Insurance Company ("Colonial Penn") for a one-year period beginning January 22, 1986. That policy afforded two alternative types of coverage for the transported items. One was an "all risks" coverage and would have insured Arrow against "[a]ll [r]isks of direct physical loss or damage from any external cause." The second type of coverage -- "named perils including theft" -- itemized eight events for which protection would be afforded, including, "[d]irect physical loss or damage caused by . . . (5) [a]ccidental collision of carrying conveyance with any other vehicle or object. . . ." Excluded from insurance protection was "[l]oss or damage caused directly or indirectly by the load or any portion thereof or tarpaulin covering thereon coming into contact with any other object unless the carrying vehicle also collides with such object." The policy actually issued by Colonial Penn provided "named perils including theft" alternate coverage.

At the expiration of the term of that insurance coverage, an inland marine policy was obtained by Dilks with Continental. The new policy's term commenced on January 22, 1987, and continued for one year. The replacement policy indicated, in relevant part:

SUBJECT TO ALL THE STIPULATIONS, LIMITATIONS, CONDITIONS AND EXCLUSIONS IN THE POLICY OF WHICH THIS FORM CONSTITUTES A PART AND SUBJECT ALSO TO THE PROVISIONS OF THIS FORM THIS POLICY COVERS: The liability of the Insured as hereinafter provided, with respect to all kinds of goods and merchandise, consisting principally of machinery, automobiles & forklifts (hereinafter referred to as "property"), while such property is in the custody and control of the Insured . . . while in due course of transit. . . .


Within the foregoing provisions and exceptions hereinafter provided:

The liability of the Insured, as a carrier for direct physical loss of or damage to the property caused by or resulting from:

(a) Fire, including self-ignition and internal explosion of the conveyance, and Lightning;

(b) Windstorm;

(c) Collision, i.e., accidental collision of the conveyance with any other vehicle or object;

(d) Overturn of the conveyance;

(e) Collapse of bridge, wharf, dock, platform or culvert;

(f) Stranding, sinking, burning or collision of any regular ferry, including General Average and Salvage Charges;

(g) Flood (meaning thereby the raising of any natural body of water).

An endorsement added theft coverage. However, unlike the Colonial Penn policy, the itemization of exclusions from coverage in the Continental policy did not specify damage to the load from contact with another object where the ...

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