On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-242-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Chambers.
Plaintiff Wilfredah Kusimba appeals from the trial court order of February 6, 2008, declaring that defendant Essex Insurance Company (Essex) has no duty to indemnify and defend defendant FROG Trucking (FROG) in this lawsuit. We affirm, concluding that plaintiff's claim against FROG fell within an exclusion in FROG's insurance policy with Essex, and hence, Essex was not obligated to defend and indemnify FROG in this litigation.
This suit was brought by plaintiff for personal injuries arising out of a multi-vehicle accident that took place on September 15, 2005. On that day, the vehicle plaintiff was operating was struck by a truck belonging to defendant S & J Enterprise, Inc. (Enterprise). From the State Trooper's report of the accident, it appears that the brakes on Enterprise's truck failed, causing the accident. Because the truck brakes had been repaired by FROG prior to the accident, FROG was also brought in as a defendant in the case.
FROG had a commercial general liability policy with Essex. At the outset, before an answer had been filed on behalf of FROG, Essex disclaimed coverage in a letter dated January 29, 2007, to FROG. Plaintiff then named Essex as a direct defendant and moved for summary judgment, seeking a declaration that Essex's policy provided FROG with coverage for the accident. While the motions were pending, on October 2, 2007, FROG assigned its rights to coverage for the accident under the Essex policy to plaintiff.
On November 16, 2007, the trial court held for plaintiff and entered an order directing Essex to provide coverage to FROG for plaintiff's accident and directing Essex to file an answer on behalf of FROG. Essex filed a motion for reconsideration. While the motion was pending, Essex sent a letter dated January 7, 2008, to FROG, explaining that it would be providing a defense to FROG pursuant to the court order, but under a complete reservation of rights. The letter advised that Essex believed that its policy provided no coverage, and as a result, it would be seeking reconsideration of the court order and may pursue an appeal. While the motion for reconsideration was pending, counsel retained by Essex filed an answer on behalf of FROG.
On February 6, 2008, the trial court granted the motion for reconsideration and determined that Essex did not have a duty to defend and indemnify FROG with respect to plaintiff's claims. It denied plaintiff's motion for summary judgment and granted Essex's cross-motion for summary judgment. This is the order that is the subject of this appeal.
Essex did not receive the order until May 30, 2008. In a letter dated June 4, 2008, Essex advised FROG of the order and stated that it would not be responsible for any liability of FROG arising from the suit. Essex did agree to continue to provide a defense for FROG on a gratuitous basis until the conclusion of the trial.
The case was listed for trial on February 9, 2009, and on that date plaintiff, FROG, and Essex reached a conditional stipulation of dismissal preserving all rights on appeal. Under the terms of the stipulation, plaintiff's claims against FROG were dismissed; however, plaintiff's right to appeal the February 6, 2008, order granting summary judgment to Essex was preserved.
On appeal, plaintiff contends that the terms of the Essex policy provide FROG with coverage for the claims. Plaintiff also maintains that Essex waived or is estopped from denying coverage because it provided a defense of FROG in the litigation without a proper reservation of rights.*fn1 In opposition, Essex asserts that plaintiff's claim falls within two auto exclusions and the products/completed operations hazard exclusion in the policy. Essex also disputes ...