Robert W. Hayman, Inc. v. Acme Carriers, Inc.

696 A.2d 1125, 303 N.J. Super. 355
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 18, 1997
StatusPublished
Cited by9 cases

This text of 696 A.2d 1125 (Robert W. Hayman, Inc. v. Acme Carriers, Inc.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robert W. Hayman, Inc. v. Acme Carriers, Inc., 696 A.2d 1125, 303 N.J. Super. 355 (N.J. Ct. App. 1997).

Opinion

The opinion of the court was delivered by

STERN, J.A.D.

Pursuant to leave granted, defendant Acme Carriers, Inc. (Acme) appeals from the denial of its motion to compel defendant Chubb & Sons (Chubb) to provide a defense, and the granting of Chubb’s cross-motion for summary judgment against plaintiff and Acme, relieving Chubb of any obligation under its policy. The motion judge found that an exclusion in the policy for theft by an employee of the insured

squarely covers the facts of this case. Cause of injury here (clearly the act of theft) determines coverage. Exclusion is clear and comprehensive under these facts.

We agree and affirm the judgment.

I.

The plaintiff imports and distributes shrimp. It sustained a loss of 200 cases of shrimp between inspection by government authorities at Port Newark and arrival- at its Newark warehouse. It is undisputed, for present purposes, that Acme’s driver, co-defendant Ramon Perez was arrested and convicted, pursuant to his guilty [357]*357plea, of stealing the shrimp while transporting it to the warehouse as an employee or agent of Acme.

Chubb had issued a Motor Truck Cargo Liability policy covering the shipment. The complaint against the insured (Acme), and Chubb under a third party beneficiary theory, asserts, among other grounds, that plaintiffs injury stemmed from Acme’s “negligent supervision of its agent and/or employee, defendant Perez.”

Chubb was granted summary judgment because the policy expressly excludes coverage “for loss or damage caused by or resulting from (a) any fraudulent, dishonest or criminal act(s) committed alone or in collusion with others by: (1) the insured or any employee ... or any other authorized representative of the insured, whether or not such act(s) be committed during regular business hours____”

II.

We recognize certain well-defined principles dealing with the construction of insurance policies and exclusionary clauses:

when the language of the policy is clear, the court is bound to enforce its terms as they are written, James v. Federal Insurance Co., 5 N.J. 21, 24, 73 A.2d 720 (1950); Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43, 161 A.2d 717 (1960), so as to fulfill the objectively reasonable expectations of the parties to the contract. Werner Industries, Inc. v. First State Ins. Co., 112 N.J. 30, 35-36, 548 A.2d 188 (1988); Rao v. Universal Underwriters Ins. Co., 228 N.J.Super. 396, 411-412, 549 A.2d 1259 (App.Div.1988).[And] we are mindful of the corollary of construction that a strict interpretation is required where the clause in question is one of exclusion or exception designed to limit the protection afforded by the general coverage provisions of the policy. Butler v. Bonner & Barnewall, Inc., 56 N.J. 567, 576, 267 A.2d 527 (1970); Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N.J. 1, 8, 170 A.2d 800 (1961). However, we must not disregard the clear import and intent of the exclusionary clauses in the policy.
[Scarfi, v. Aetna Cas. & Sur. Co., 233 N.J.Super. 509, 514, 559 A.2d 459 (App.Div.1989).]

Moreover, it is undisputed that the duty to defend is broader than the duty to indemnify:

[358]*358“[T]he duty to defend comes into being when the complaint states a claim constituting a risk insured against.” Danek v. Hommer, 28 N.J.Super. 68, 77, 100 A.2d 198 (App.Div.1953), aff'd o.b., 15 N.J. 573, 105 A.2d 677 (1954). Whether an insurer has a duty to defend is determined by comparing the allegations in the complaint with the language of the policy. When the two correspond, the duty to defend arises, irrespective of the claim’s actual merit. Id. 28 N.J.Super. at 76-77, 100 A.2d 198. If the complaint is ambiguous, doubts should be resolved in favor of the insured and thus in favor of coverage. Central Nat’l Ins. Co. v. Utica Nat’l Ins. Group, 232 N.J.Super. 467, 470, 557 A.2d 693 (App.Div.1989). When multiple alternative causes of action are stated, the duty to defend will continue until every covered claim is eliminated. Mt. Hope Inn v. Travelers Indem. Co., 157 N.J.Super. 431, 440-41, 384 A.2d 1159 (Law Div.1978).
Vorhees v. Preferred, Mut. Ins. Co., 128 N.J. 165,173-74, 607 A.2d 1255 (1992).]

In Salem Group v. Oliver, 128 N.J. 1, 607 A.2d 138 (1992), a divided Supreme Court held that a homeowner’s insurance carrier had to defend an insured against a claim for injuries based on an accident involving an all-terrain vehicle, despite an exclusion in the policy for injuries arising out of the operation ownership or use of such vehicle, because of an allegation in the complaint that the insured violated his duties as a social host. In so holding, the majority considered the “excluded risk” to constitute “an additional cause of the injury,” id. at 3, 607 A.2d 138, and, with respect to the duty to defend, followed the rule laid down by the California Supreme Court in State Farm Mutual Automobile Insurance Co. v. Partridge, 10 Cal.3d 94, 102, 109 Cal.Rptr. 811, 816, 514 P.2d 123, 128 (1973), that “ “when two such risks constitute concurrent proximate causes of an accident, the insurer is liable so long as one of the causes is covered by the policy.’ ” Salem Group, supra, 128 N.J. at 5-6, 607 A.2d 138.2

Considering the “reasonable expectations of the insured,” the Court concluded that the policy did not “unambiguously exclude[ ] coverage for an accident, caused concurrently by the operation of a [359]*359motor vehicle and the provision of alcoholic beverages” to a guest. Id. at 4, 607 A.2d 138. The Salem Group

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696 A.2d 1125, 303 N.J. Super. 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-w-hayman-inc-v-acme-carriers-inc-njsuperctappdiv-1997.