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Harleysville Insurance Co. v. Crum & Forster Personal Insurance

Decided: December 19, 1990.

HARLEYSVILLE INSURANCE COMPANY, PLAINTIFF-APPELLANT,
v.
CRUM & FORSTER PERSONAL INSURANCE, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division, Union County.

Gaulkin and Havey.

Per Curiam

This is a dispute between two insurance carriers concerning their respective liabilities arising out of an automobile accident. On the parties' cross-motions for summary judgment, the motion judge granted summary judgment in favor of defendant Crum & Forster Personal Insurance (Crum & Forster). Plaintiff Harleysville Insurance Company (Harleysville) appeals.

In September 1986, Eugene Friedman, a Florida resident, came to New Jersey to sell a condominium he owned. While here, he took his 1984 Mercedes to Coast Imported Car Corporation (Coast) for repair work. Coast ordinarily provided van service for customers leaving their cars for repair. The van

was unavailable when Friedman delivered his car, so Donald Krause, a Coast employee, drove Friedman in Friedman's car to the hospital where Friedman's daughter worked. During that journey, Krause was involved in an accident in Dover Township with an automobile driven by Sharon McIntyre. McIntyre and her husband sued Friedman, Krause and Coast. Friedman's defense was handled by Crum & Forster, which had issued a personal automobile policy on the Mercedes. Crum & Forster, however, disclaimed coverage as to Krause and Coast under the Friedman policy; Krause and Coast thus were represented through Harleysville, which had issued a garage policy to Coast.

While the McIntyres' action was pending, Harleysville filed this action seeking declaratory judgment that Crum & Forster's policy provided primary insurance coverage to Krause. The two carriers jointly agreed to settle the McIntyre claims for $35,000 and further agreed between themselves that Harleysville would pay the settlement without prejudice to its claim against Crum & Forster.

The dispute arises out of the "shop rule exclusion" incorporated in the Crum & Forster policy, which excludes liability coverage for any person

6. While employed or otherwise engaged in the business or occupation of

a. selling;

b. repairing;

c. servicing;

d. ...


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