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Frank W. Messina, As Administrator Ad Prosequendum, and General v. Harleysville Insurance Company of New Jersey

December 9, 2010

FRANK W. MESSINA, AS ADMINISTRATOR AD PROSEQUENDUM, AND GENERAL ADMINISTRATOR OF THE ESTATE OF CHRISTINE M. MESSINA, DECEASED, FRANK W. MESSINA, INDIVIDUALLY AND FRANK W. MESSINA AS GUARDIAN AND NATURAL PARENT OF RACHEL MESSINA AND FRANK A. MESSINA, PLAINTIFFS-APPELLANTS,
v.
HARLEYSVILLE INSURANCE COMPANY OF NEW JERSEY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1290-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 20, 2010 - Decided Before Judges Axelrad, R. B. Coleman and Lihotz.

In this insurance coverage dispute we review plaintiffs' claims of error in the summary judgment dismissal of their complaint seeking coverage for damages resulting from an October 20, 2002 motor vehicle accident. The Law Division concluded the identified policy did not cover the vehicle driven by the tortfeasor, precluding the insurer's obligation to satisfy plaintiffs' judgment. We affirm.

I.

On October 20, 2002, a 1995 Ford Explorer driven by Christine Messina was struck by a 1987 Chevy van (the 1987 van), which was owned by Broadway Finishing Company, Inc. (Broadway) and driven by Broadway's employee, William Stranahan. Messina died as a result of her injuries.

At the time of the accident, Broadway was a party to a commercial automobile liability policy issued by defendant Harleysville Insurance Company of New Jersey (Harleysville). A summary of Broadway's efforts to secure automobile insurance coverage prior to executing the Harleysville policy adds the necessary context to plaintiffs' arguments.

Nearly one year prior to the accident, Michael Pfeiffer, Broadway's owner, hired the Peter Dee Agency (the Agency) to secure more economical automobile insurance coverage of the company vehicles. In November 2001, Pfeiffer told Peter DiGiambattista, owner of the Agency, Broadway needed to switch carriers because its current insurer, CGU the Camden Fire Insurance Association (CGU), was canceling coverage based on Broadway's nonpayment. CGU was insuring six vehicles: a 1987 Chevrolet van, a 1985 Chevrolet C30 van (the 1985 van), a 1989 Kenworth van, a 1989 Mack truck, a 1991 Volvo truck, and a 1994 Nissan truck. Pfeiffer desired to lower his costs by reducing the number of insured business vehicles, downsizing to three. However, CGU would not issue a fleet policy for such a limited number of vehicles.

Pfeiffer stated that after his initial conversation with DiGiambattista, he had a telephone conversation with an unidentified woman at the Agency. During that call he believes he stated he was seeking coverage for the 1987 van, the 1991 Volvo truck, and the 1994 Nissan truck. Pfeiffer's deposition testimony relating this conversation is as follows:

Q. You personally spoke to some person at the [A]gency? Yes?

A. Yes.

Q. And it was a woman?

A. I believe so.

Q. And you told her what vehicles you ...


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