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Bogey's Trucking & Paving, Inc. v. Indian Harbor Insurance Co.

July 19, 2007

BOGEY'S TRUCKING & PAVING, INC. AND DAVID WHITFIELD, PLAINTIFFS-RESPONDENTS,
v.
INDIAN HARBOR INSURANCE COMPANY, DEFENDANT-RESPONDENT,
AND ARI INSURANCE COMPANIES, DEFENDANT-APPELLANT,
AND CHARLES A. STECKER, JR., INTERVENOR-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6098-04.

The opinion of the court was delivered by: Grall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 13, 2007

Before Judges Skillman, Holston, Jr. and Grall.

Defendant ARI Insurance Companies (ARI) appeals from orders entered on motions for summary judgment in this action for declaratory judgment on insurance coverage. The plaintiffs are Bogey's Trucking and Paving, Inc. (Bogey's) and its employee, David Whitfield. ARI insures Bogey's under a business automobile policy. Defendant Indian Harbor Insurance Company (Indian Harbor) insures Bogey's under a comprehensive general liability (CGL) policy. Intervenor Charles Stecker is an uninsured motorist.

Frank Gaidosh was struck by an automobile and filed a complaint alleging that his injuries were caused by the negligence of Bogey's, Whitfield and Stecker. Bogey's and Whitfield commenced this action after both ARI and Indian Harbor denied a duty to defend or indemnify. The trial court determined that ARI, not Indian Harbor, must defend and indemnify Bogey's, and ARI must provide uninsured motorist coverage to Gaidosh.*fn1

There are two coverage disputes at issue on this appeal: 1) whether the responsibility to defend and indemnify Bogey's and Whitfield is shared by ARI and Indian Harbor; 2) whether ARI must provide uninsured motorist coverage. Because the trial court's interpretation of the policy provisions at issue is correct, we affirm.

The accident occurred at approximately 5:00 p.m. on January 9, 2002. Gaidosh was employed on a construction site, and Bogey's had assigned Whitfield to deliver stone to that site. Whitfield delivered the stone in a dump truck insured under the business automobile policy ARI issued. Gaidosh rode in the dump truck in order to show Whitfield where to leave the stone. They traveled to the spot, which was off the southbound side of a public roadway. It was getting dark, and the truck's headlights and emergency flashers were on. Offering to direct Whitfield while he turned the truck to dump the stone, Gaidosh left the vehicle. Although the truck was equipped with a flashlight and a reflective vest, Whitfield did not offer the gear to Gaidosh, who was dressed in dark-colored clothing.

Whitfield started a "K-turn." Traffic in the southbound lane stopped. Whitfield saw a car that was not "moving that fast" approaching in the northbound lane. He continued his turn and heard a "crash" when a car, which was driven by Stecker, struck Gaidosh.*fn2 According to Whitfield, Gaidosh left the truck about five seconds before the accident.

The business automobile policy issued to Bogey's by ARI under which the dump truck was insured provides the following coverage:

We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of a covered "auto."

Our courts read the policy language emphasized above to afford the coverage required by N.J.S.A. 39:6B-1a, which is coverage for property damage and injury "arising out of the ownership, maintenance, operation or use of" the covered vehicle. Ibid. (emphasis added); see Home State Ins. Co. v. Cont'l Ins. Co., 313 N.J. Super. 584, 587 (App. Div. 1998), aff'd o.b., 158 N.J. 104 (1999).

The Indian Harbor policy expressly excludes coverage for claims for bodily injury or property damage "arising out of the ownership, maintenance, use or entrustment to others of any . . . 'auto' . . . owned or operated by or rented or loaned to ...


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