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Anderson Serrano v. Ivan I. Nezoyur

July 31, 2012

ANDERSON SERRANO, PLAINTIFF-APPELLANT,
v.
IVAN I. NEZOYUR, NIKOLAY I. NEZOYUR, JOHN ROSADO, JR., JEANNE M. FRAZIER, WILLIAMS PAVING, H. WILLIAMS PAVING, STAVOLA MILLVILLE ASPHALT CO., LLC, WILLIAM'S ASPHALT MATERIALS, LLC, OHIO CASUALTY INSURANCE GROUP, LIBERTY MUTUAL INSURANCE GROUP AND PEERLESS INSURANCE, JOINTLY SEVERALLY AND/OR IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3970-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 29, 2012

Before Judges Waugh and St. John.

Plaintiff Anderson Serrano appeals from an October 4, 2010 order granting summary judgment in favor of defendants Ohio Casualty Insurance Group, Liberty Mutual Insurance Group, and Peerless Insurance. In light of the record and applicable law, and following our review of the arguments on appeal, we affirm.

I.

The record discloses the following facts and procedural history leading to the grant of summary judgment under review.

On December 19, 2006, plaintiff was riding his bicycle at the intersection of North West Avenue and West Park Avenue in Vineland, when he was struck by a vehicle driven by Ivan Nezoyur, and owned by Nezoyur's father. As a result of the collision, plaintiff sustained severe injures.

Nezoyur admitted hitting plaintiff. He asserted that he failed to see plaintiff because the headlights and roof lights of a dump truck were shinning in his eyes and obstructed his vision. The truck was parked illegally in the wrong direction on North West Avenue.

On December 19, 2008, plaintiff filed a complaint against Nezoyur and his father, and Jane Williams Paving and H. Williams Paving (Williams Paving),*fn1 the company that owned the dump truck alleged to have temporarily blinded Nezoyur. On September 8, 2009, plaintiff successfully moved for an order to name defendants, the insurance providers for Williams Paving, as parties to the action.

Plaintiff's complaint alleged negligence on part of John Rosado, Jr., the driver of the parked dump truck, and vicarious liability on part of Williams Paving, as Rosado's employer. Plaintiff further asserted defendants improperly denied coverage to Williams Paving for his claim against it.

Defendants filed an answer on November 23, 2009, acknowledging defendant Ohio Casualty Insurance Group (OCIG) issued a Commercial General Liability policy (the policy) to Williams Paving for the period from July 5, 2006 through July 5, 2007. The policy obligated OCIG to "pay those sums that the insured becomes legally obligated to pay as damages because of the 'bodily injury' or 'property damages' to which this insurance applies." However, defendants noted that an exclusion in the policy stated, in relevant part:

The insurance does not apply to: . . . .

g. Aircraft, Auto or Watercraft "Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustments to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any ...


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