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Scarfi v. Aetna Casualty & Surety Co.

Decided: May 30, 1989.

JOHN SCARFI, MICHAEL SCARFI, AL DE SANTIS AND DONALD DE SANTIS, PLAINTIFFS-RESPONDENTS,
v.
AETNA CASUALTY & SURETY COMPANY, DEFENDANT-APPELLANT



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

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

Michels

[233 NJSuper Page 510] Defendant Aetna Casualty & Surety Company appeals from a summary judgment of the Law Division entered in favor of plaintiffs John Scarfi, Michael Scarfi, Al De Santis and Donald

De Santis in this action in which plaintiffs sought a declaratory judgment that Aetna's Comprehensive General Liability Insurance (CGL) policy afforded coverage to plaintiffs for claims against them arising out of an accident involving a vehicle owned by plaintiffs' corporation.

This suit arises as a result of Aetna's refusal to defend or indemnify plaintiffs in connection with an action instituted by Carlos Arias (Arias) for injuries sustained when a school van driven by Arias and a dump truck driven by Daniel J. Bubenik (Bubenik) collided, allegedly as a result of the negligent operation of the truck by Bubenik. Arias sued Bubenik and Bratt & Doxey Supply Co. (Bratt & Doxey), which was Bubenik's employer and the corporation that owned the truck. Arias also sued plaintiffs, who were the directors of Bratt & Doxey.

On the recommendation of one of its employees, Bratt & Doxey hired Bubenik to drive a 1974 GMC dump truck for it. Bubenik had approximately one-and-one-half years experience as a driver of a smaller dump truck than the one he was to drive for Bratt & Doxey. Before deciding to hire Bubenik, Bratt & Doxey officials asked Bubenik's insurer about his driving record; inquired of Bubenik's previous employer about his employment record, and required Bubenik to test drive the truck. Apparently satisfied with Bubenik's credentials, Bratt & Doxey hired Bubenik in early 1984, at which time Bubenik was informed of his duties as a driver and instructed how to inspect the lug nuts and the air brakes on the truck.

On the morning of August 23, 1984, the day of the accident, Bubenik hauled a load of sand from Bratt & Doxey's property in Park Ridge, New Jersey, to a site across the New York State line. On the return trip, as Bubenik was traveling south on Spring Valley Road in Ramapo, New York, he drove the truck over a slight rise in the road and noticed a small car slowing to turn left at an intersection a short distance from his truck. When Bubenik applied his brakes, the truck skidded and spun into the northbound lane, striking a school van traveling in the

opposite direction. Bubenik, who was thrown to the floor upon impact and suffered a concussion, was fairly unclear in his deposition regarding how the accident occurred. He testified, however, that the truck had never before skidded when the brakes were applied, and he concluded that the rainy conditions coupled with oil that he later noticed on the road might have contributed to the reaction of the truck.

Arias instituted suit against Bubenik and Bratt & Doxey to recover for personal injuries caused by Bubenik's allegedly negligent operation of the truck. Arias subsequently amended his complaint to include claims against plaintiffs for negligence in the hiring and training of Bubenik and in the repair and maintenance of the truck. Bratt & Doxey's insurer, Aetna, denied coverage and refused to defend or indemnify plaintiffs in connection with the underlying suit under its CGL policy, but undertook the defense of Bubenik, Bratt & Doxey and plaintiffs under its Business Auto policy.*fn1

Plaintiffs thereupon instituted this action for a declaration that the Aetna CGL policy afforded them coverage for the claims asserted in the underlying suit. The trial court, on cross-motions for summary judgment, held that Aetna's CGL policy covered the allegations of the amended complaint and, therefore, that Aetna had a duty to defend and indemnify plaintiffs in the underlying suit instituted by Arias. This appeal followed.

The principle thrust of Aetna's contention is that the CGL policy did not provide coverage to plaintiffs for the negligent hiring asserted in the amended complaint. Specifically, Aetna argues that the ...


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