March 16, 2010
ST. GEORGE WAREHOUSE, PAUL SMITH AND AMERICAN HOME ASSURANCE COMPANY, AS SUBROGEE, PLAINTIFFS-RESPONDENTS,
EMPIRE FIRE & MARINE INSURANCE CO. AND ALLSTATES WORLD CARGO, DEFENDANTS-APPELLANTS.
JOAQUIN CAVILHAS AND MARIA CAVILHAS, HIS WIFE, PLAINTIFFS,
ST. GEORGE WAREHOUSE, PAUL SMITH, SUNSET CAHUENGA, APL, INC., PEOPLE STAFFING, INC., LMC PERSONNEL, INC., 21ST CENTURY STAFFING INC., ACUBIZ SERVICES MARKETING, LLC, EAGLE STAFFING, INC., PRODUCTION GROUP, INC., NORTH JERSEY STAFFING, LLC, KEMP ASSOCIATES, INC., GEB PERSONNEL SERVICES, INC., EXPRESS SERVICES, INC., LAMAR NEWTON, SEAN NORWOOD, AND ARTIA JACKSON, DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-1763-08 and L-2326-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 3, 2010
Before Judges Stern and Sabatino.
Following entry of final judgment in April 2009 upon settlement of the underlying consolidated personal injury action, defendants, Empire Fire & Marine Ins. Co. and its insured Allstates World Cargo, appeal from an order granting the summary judgment motion of plaintiff American Home Assurance Company, as subrogee for St. George Warehouse and Paul Smith, on cross-motions, and declaring that Empire afforded primary coverage in plaintiff Joaquin Cavilhas' personal injury action.
The order of November 7, 2008 declared that Empire "is obligated to afford primary coverage and a defense to plaintiffs St. George and Smith;" that American Home Assurance was "obligated to afford excess coverage," and that Empire was obligated to "reimburse... American Home, for all counsel fees and costs" incurred in defending St. George and Smith from March 22, 2008 until Empire "assumes" the defense. Empire argues the judgment "must be reversed and the policies must be declared co- primary."
Empire acknowledges it is primary under its auto policy, but asserts that American Home is also primary under its general liability policy for the injury to driver Cavilhas while the Allstates truck was being loaded. A pallet injured Cavilhas as it was being loaded onto the truck owned by defendant Allstates World Cargo, which is covered by Empire.
Empire claims that the American Home policy is also primary because "here we have an injury caused by the use of a forklift, not by use of an auto. Here we have loading and unloading by use of a forklift, not by use of an auto." However, the fact that a forklift was involved does not make this less of a "loading and unloading" case under our case law. As a result, American Home is an excess carrier, and not a co-primary carrier, because there is other auto coverage. Accordingly, we affirm the grant of summary judgment substantially for the reasons expressed by Judge Michael R. Casale in his oral opinion of November 7, 2008.
Given the result as to primary coverage, it was also appropriate for the trial court to hold Empire liable for the costs of defense once advised of the demand for coverage and adequately placed on notice of the claim.
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