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GUARANTEE INS. CO. v. ANDERSON

April 26, 1984

GUARANTEE INSURANCE COMPANY
v.
John ANDERSON



The opinion of the court was delivered by: KATZ

 KATZ, District Judge.

 The issue presented by the parties' cross-motions for summary judgment in this declaratory judgment action is whether Anderson is entitled to recover under the uninsured motorist coverage provided by Guarantee Insurance Company ("Guarantee") to National Freight, Inc., *fn1" and if so, whether he may cumulate, or "stack," such coverage.

 On the night of January 26, 1981 Anderson was driving his own tractor, attached to a trailer owned by National Freight, hauling a load of cheese on Interstate Highway 95 near Greenwich, Connecticut. He pulled off the road onto the shoulder and got out of the tractor to determine what was causing the truck to emit black smoke. As he stood next to the left front wheel of the tractor with a flashlight, he was struck by a hit-and-run driver and suffered serious personal injuries. (Anderson deposition, pp. 48-50, 63-67.)

 At the time of the accident, National Freight owned a policy issued by Guarantee, providing for uninsured motorist coverage. The policy covers National Freight's fleet of vehicles. That policy contains a stated limit of liability of $100,000 for bodily injury for each person, of which National Freight is responsible for the first $50,000 under its self-insured retention. Anderson's claim for his injuries exceeds that amount. In its motion for summary judgment, Guarantee asks the Court to declare that its liability to Anderson is limited to $100,000. Anderson's cross-motion asks the Court to permit him to stack the policy limits according to the number of vehicles in the fleet insured by this policy.

 New Jersey law governs this insurance contract. See Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). National Freight has its principle place of business in New Jersey, and the policy was written by a New Jersey authorized representative. The uninsured motorist provision refers to New Jersey. Anderson is receiving workers' compensation benefits under the applicable New Jersey statute. Contact points in New Jersey, therefore, have the most significant relationship to this litigation. CBS, Inc. v. Film Corp. of America, 545 F. Supp. 1382, 1385-87 (E.D.Pa.1982).

 Guarantee first argues that Anderson is not entitled to coverage at all because the National Freight trailer was not a vehicle covered by the policy. This contention is contrary to the unambiguous language of the policy endorsement for uninsured motorist coverage, which describes "insured highway vehicles" as "any auto." While "auto" is not defined, the definition of "highway vehicle" explicitly includes a "trailer." Any conflict with the general insurance Schedule of Coverages and Covered Autos must be resolved against the insurer, in Anderson's favor. Butler v. Bonner & Barnewall, Inc., 56 N.J. 567, 576, 267 A.2d 527 (1970); Lundy v. Aetna Casualty and Surety Co., 92 N.J. 550, 458 A.2d 106 (1983). Moreover, the more specific provisions of the uninsured motorist section govern the more general schedule. Thus, Anderson's trailer was a covered vehicle at the time of the accident.

 Guarantee also contends that Anderson is barred from any recovery because he was not an insured person under the policy, which provides:

 
II. PERSONS INSURED
 
Each of the following is an insured under this insurance to the extent set forth below:
 
(a) the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either;
 
(b) any other person while occupying an insured highway vehicle ; and
 
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under (a) or (b) above.

 (Emphasis added.) Guarantee claims that Anderson was not "occupying" the insured vehicle at the time of the accident. The term "occupying" is defined in the policy as "in or upon or entering into or alighting from" such insured highway vehicle. This language has been construed to permit coverage for persons who have descended from the insured vehicle but who have not finished using the vehicle. Contrisciane v. Utica Mutual Insurance Co., 312 Pa. Super. 549, 459 A.2d 358, 360 (Pa.Super.1983) (citing cases). In Contrisciane, an employee was permitted to collect under his employer's uninsured motorist insurance where the employee was hit by an uninsured driver while standing next to a police car after a minor, unrelated traffic accident involving the employer's car. In Newcomb Hospital v. Fountain, 141 N.J.Super. 291, 357 A.2d 836 (1976), the court construed the term "occupying" in the New Jersey Automobile Reparations Reform Act, N.J.S.A. ยง 39:6A-4, to include a person who has descended from a vehicle but who has not reached his ultimate destination. The ...


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