On appeal from Superior Court of New Jersey, Law Division, Somerset County, No. L-1712-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and Messano.
General Security Property & Casualty Insurance Company ("General") appeals from a trial court order granting summary judgment to defendant New Hampshire Insurance Company ("New Hampshire"). After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff General filed a declaratory judgment action, seeking to compel New Hampshire to contribute toward the settlement of a personal injury action filed following a motor vehicle accident. The trial court rejected General's arguments, as do we.
On August 21, 2001, a Mack truck driven by Ivan Soltoff collided on Route 29 in West Amwell with a minivan driven by Edward Devaney. Devaney's wife and two children were passengers in the van. They were all injured in the accident, and their medical bills exceeded $250,000. The truck had a placard on its door, "LMO Trucking." The placard also listed LMO's registration number with the Department of Transportation. Leonard M. Olschewski is the principal of LMO Trucking.
LMO, however, did not own the Mack truck. It was owned by Hub Leasing, which, in turn, leased the truck to Theo, Inc. Hub Leasing and Theo, Inc. both have the same principal, John Theoharis. Hub Leasing, Theo, Inc. and LMO Trucking all operate from the same address in Lawrenceville.
Theo, Inc., the truck's lessee, was insured through plaintiff General under a policy providing $1 million in coverage. The truck involved in the Devaney accident was specifically listed as a covered vehicle under this policy. The General policy had the following "other insurance" clause: "This Coverage Form's Liability Coverage is primary for any covered 'auto' while hired or borrowed by you.... This Coverage Form's Liability Coverage is excess over any other collectible insurance for any covered 'auto' while hired or borrowed from you by another 'trucker.'"
LMO was insured through defendant New Hampshire under a policy providing $500,000 of coverage. The New Hampshire policy specified that it only provided coverage for those vehicles listed on the schedule of covered autos. The truck involved in the Devaney accident was not included in the schedule of covered autos.
Olschewski, LMO's principal, reported the happening of the accident to his insurance agent. In November 2001, a claims representative for defendant New Hampshire wrote to John Theoharis asking him to have the driver, Ivan Soltoff, complete an information form about the accident. The letter referred to "our insured, LMO Trucking/Theo[,] Inc."
Three months later, in February 2002, the claims representative wrote to the attorney representing the Devaneys in connection with their claims. She informed the attorney that investigation had revealed that the truck involved in the accident was owned by Hub, not LMO, and had been leased to Theo. She stated that New Hampshire was denying coverage for his clients' claims and referred him to plaintiff, General. That same month, she wrote LMO, telling it that the truck was not insured under LMO's policy with New Hampshire and that General was handling the claim.
The Devaneys filed suit on August 16, 2002. They named as defendants Ivan Soltoff; Leonard M. Olschewski, d/b/a LMO Trucking; Hub Leasing, Inc.; and Theo, Inc. Defendant New Hampshire assigned counsel to represent its insureds.
Approximately five months after the Devaneys filed suit for damages, in January 2003, New Hampshire's attorney wrote to LMO Trucking, advising that the New Hampshire policy did not provide coverage for this accident in light of the fact that the Mack truck was not named as a covered auto. The attorney told LMO the claim should be covered by General's policy and ...