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NEW AMSTERDAM CAS. CO. v. KELLY

July 14, 1944

NEW AMSTERDAM CASUALTY CO.
v.
KELLY et al.



The opinion of the court was delivered by: KIRKPATRICK

I find the facts as follows:

1. The plaintiff, New Amsterdam Casualty Company, is a corporation organized and existing under and by virtue of the laws of the State of New York, and is now and has been at all times since its creation a citizen and resident of said State of New York, having its domicile and principal place of business in the City of New York in said State.

 2. The defendants John A. Kelly and Ruby Lee Kass are citizens and residents of the State of Pennsylvania, City and County of Philadelphia. The defendant Ruby Lee Kass is the sole owner and manager of the garage repair and storage business registered and trading as R. L. K. Garage in the City of Philadelphia.

 3. A Nash four-door sedan automobile bearing license number 44X41 for the year 1941, registered in the name of Ruby Lee Kass, trading as R. L. K. Garage, was owned by R. L. K. Garage, and was used exclusively for the purposes of the garage business, such as towing and pushing cars, hauling customers, delivering cars and supplies, and for bringing the defendant Kass to his work in the garage in the mornings.

 4. Ruby Lee Kass, the defendant, also owned a Packard coupe automobile which, while stored in the R. L. K. Garage, was his personal car and was never used for the purpose of the garage business.

 5. The New Amsterdam Casualty Company issued its policy of insurance No. LAG373401 on December 22, 1941, insuring R. L, Kass, trading as R. L. K. Garage.

 6.Before writing this policy, the nature of the defendant's business was disclosed and known to the New Amsterdam Casualty Company, which had written similar policies of liability insurance for defendant in the previous years 1938, 1939 and 1940.

 7. Before writing these policies, the New Amsterdam Casualty Company, through its agents, made an inspection of the premises of the insured and made a check of the books of the garage in order to determine its remuneration, for the purpose of fixing the premiums on the policy.

 9. The policy of insurance written by the New Amsterdam Casualty Company insuring R. L. Kass, trading as R. L. K. Garage, against bodily injury and property damage liability, provided coverage under "Definition of Operations" (page 2 of policy), as follows:

 "Division 2. Automobile Storage Garage or Service Station. The ownership, maintenance, occupation or use of the premises herein designated, including the public ways immediately adjoining, for the purposes of an automobile storage garage or service station, and all operations either on the premises or elsewhere which are necessary and incidental thereto, including ordinary repairs of buildings on the premises and the mechanical equipment thereof: and tne use of any automobile for any purpose in connecting with the above defined operations. "

 And then, under the heading of "Exclusions" (page 2 of the policy) stated:

 "This policy does not apply * * * (c) under division 2 of the Definition of Operations, (1) to any automobile owned, hired or registered by the named insured or by a partner thereof ...


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