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Continental Casualty Co. v. Northland Ins. Co.

Superior Court of New Jersey, Appellate Division

November 14, 2013

CONTINENTAL CASUALTY COMPANY a/s/o STEVEN EDGIN AND STEPHEN GULLO, Plaintiff-Appellant,
v.
NORTHLAND INSURANCE COMPANY, JUAN J. CARREA, ALBERT MOGAVERO JR., AND VALLEY AUTO WRECKERS, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued July 9, 2013.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1374-11.

Harry R. Howard argued the cause for appellant Continental Casualty Company.

Frank E. Borowsky, Jr. argued the cause for respondent Northland Insurance Company (Borowsky & Borowsky, attorneys; Mr. Borowsky and Erin M. McDevitt-Franz, on the brief).

Before Judges Ostrer and Hayden.

PER CURIAM.

In this declaratory judgment action, plaintiff Continental Casualty Company appeals the April 13, 2012 Law Division order granting summary judgment to defendant Northland Insurance Company. For the reasons that follow, we affirm.

Viewing the record in the light most favorable to Continental, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we discern the following facts. Defendant Juan Carrea was the principal officer of defendant Valley Auto Wreckers, L.L.C., which was a salvage yard and also a used auto and boat dealership, engaged in the business of buying, repairing, and selling cars and boats. The repair work was done on premises in Wharton, unless a boat was too large, at which time Carrea rented a boat slip and stored the boat there while repairing it.

Sometime in April 2009, Carrea contacted plaintiff Stephen Gullo about participating in a charitable donation program whereby Gullo would donate his boat to a charity that would provide him with documentation to enable him to receive a charitable tax deduction. Generally, Carrea paid the charity for the donated boats he obtained, then repaired them, and sold them for profit. Later in May 2009, Carrea sent Gullo a packet of documents, including a bill of sale, to review with his accountant and to sign in order to donate his boat.

In July 2009, in contemplation of the donation transaction happening, Carrea moved Gullo's boat from a New York City marina to a public marina in Brick Township. Gullo contended that he had not given Carrea permission to move his boat from New York to New Jersey, and had declined to sign the donation papers. Carrea contended that he was waiting for Gullo to sign the papers when a fire occurred.

On July 8, 2009, a fire occurred at the public marina where Gullo's boat was docked. Defendant Albert Mogavero accidently caused the fire while he was in a separate boat, which was owned by Carrea. The fire spread to two nearby boats, owned respectively by Gullo and plaintiff Stephen Edgin. Continental insured both Gullo's and Edgin's boats. There were no employees of Valley present at the marina and no work was being performed by Valley on any of the boats involved in the fire.

Mogavero was not an employee of Valley, but a contractor who had his own marine repair business in Brick and occasionally did work for Carrea. Because Mogavero had a fifteen-year friendship with Carrea, on the night of the fire he took Carrea's boat without asking his explicit permission. He was not working for Valley at the time and the purpose of his trip was purely recreational.

Continental paid Edgin and Gullo for the property damage to their boats from the fire under the terms of their individual policies. Continental then filed a subrogation complaint against Valley, Carrea, and Mogavero, alleging that defendants were negligent in the "operation, control and maintenance" of the boat that caused the fire. Northland undertook to ...


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