On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-912-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2007
Before Judges Wefing, R. B. Coleman and Lyons.
Co-defendant, Quincy Mutual Fire Insurance Company (Quincy), appeals an order of summary judgment in favor of co-defendant, New Jersey Re-Insurance Company (New Jersey Re), declaring that the uninsured motorists (UM) endorsement in a commercial automobile insurance policy issued by Quincy to Fence Mender, provides coverage to plaintiff, John Leski (Leski), for injuries he sustained in an automobile accident. Because we disagree with the trial court's analysis, we reverse.
On February 15, 2004, plaintiff, Leski, was driving a Chevy Blazer owned by his friend, Deborah J. Martinez, when he was initially struck by a vehicle driven by defendant, Arielle Chesnovitz (Chesnovitz). Chesnovitz advised the police that she had lost control of her vehicle when she was cut-off by a phantom vehicle, described as a silver Cadillac. After the initial impact, the Chesnovitz vehicle then struck another vehicle operated by Hee Soo Pyun (Pyun).*fn2 Leski contends that after Chesnovitz hit Pyun, his vehicle was struck a second time, this time by the Pyun vehicle.
The car Leski was driving at the time of the accident was insured by New Jersey Re. Also, at that time, Leski was operating a fencing business as a sole proprietor under the trade-name of "Fence Mender." He was not operating his friend's vehicle in connection with his business at the time of the accident, though. At the time of the accident, there was a commercial automobile policy issued by Quincy in which the named insured was listed as "Fence Mender." The declaration page also indicated that the named insured was a corporation. When the Quincy policy was first purchased approximately four years earlier, Fence Mender was a corporation. However, about one year after obtaining the policy, Leski dissolved the corporation but continued to operate his business as a sole proprietor under the trade-name Fence Mender.
As a result of the accident, Leski filed claims for uninsured motorists coverage with New Jersey Re and Quincy. In addition, he filed a claim with Hanover Insurance Company because, at the time of the accident, Leski resided with his father who had a policy of automobile liability insurance issued by that company. Hanover Insurance Company intervened in this matter based upon that claim.
In March 2004, Quincy denied Leski's claim. It explained that its policy only provided UM coverage for vehicles actually owned by Fence Mender. The only vehicle listed as a "covered 'auto'" under the Quincy policy was a 1988 Ford Super Duty Pickup. The Quincy endorsement pertaining to New Jersey uninsured motorists coverage provides coverage for persons that are found to be "insureds" under the policy. Section B of the Quincy uninsured motorists coverage endorsement provides in pertinent part that:
Who is An Insured If the Named Insured is designated in the Declaration as:
1. An individual, then the following are "insureds":
a. The Named Insured and any "family members".
b. Anyone else "occupying" a covered "auto" or a temporary substitute for a covered "auto". The covered "auto" must be out of service because of its breakdown, repair, servicing, "loss" or destruction.
2. A partnership, limited liability company, corporation or any other form of organization, then ...