THE ESTATE OF KENNETH E. BOZEMAN v. PAUL MULLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2275-08T32275-08T3

THE ESTATE OF KENNETH E. BOZEMAN,

by his Acting Administratrix ad

Prosequendum, VIOLET BOZEMAN and

VIOLET BOZEMAN, Individually,

Plaintiffs-Appellants,

v.

PAUL MULLER, Individually and in

any corporate capacity including

PAUL'S PIT-BULL X-PRESS, AFFILIATED

TRANSPORT SERVICES, INC., COMMERCIAL

TRUCK CLAIMS MANAGEMENT,

Defendants,

and

ALEA LONDON, LTD.,

Defendant-Respondent,

and

CLARENDON NATIONAL INSURANCE

COMPANY,

Defendant-Appellant.

____________________________________

 

Argued September 23, 2009 - Decided

Before Judges Stern, Collester and Sabatino.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4214-03.

Ira Lipsius argued the cause for appellants (Schindel, Farman, Lipsius, Gardner & Rabinovich LLP, attorneys; David BenHaim, on the briefs).

Marie Sambor Reilly argued the cause for respondent Alea London Limited (Wright & O'Donnell, P.C., attorneys; Ms. Reilly, Lawrence D. Wright and Kellyann E. Johnson, on the brief).

PER CURIAM

The Estate of Kenneth Bozeman and Clarendon National Insurance Company appeal from a judgment of the Law Division entered on December 5, 2008. Clarendon, as assignee of Paul Muller and plaintiff estate, seeks to have defendant Alea London Limited satisfy the estate's judgment against Muller who was driving his tractor when it hit and killed Bozeman, a pedestrian, on the morning of October 11, 2001. Alea, which issued a "bobtail" policy for "non-trucking" use to Muller, refused to defend Muller, against whom a $750,000 default judgment was entered. The failure to defend was originally based on late notice, because it was not received until March 9, 2004. Muller was a lessor-trucker for Affiliated Transport Services, which was insured by Clarendon.

Judge Jamie S. Perri concluded that Muller was "under dispatch" when the accident occurred because on the afternoon of October 10, 2001, he was assigned to pick up a load between then and October 15 at the Maher terminal in Elizabeth, and was driving to the Maher terminal from home around 5:30 a.m. on October 11, 2001, when the accident occurred. He drove the tractor home after receiving the dispatch on the afternoon of October 10 instead of leaving it at the Affiliated terminal.

Appellants argue that: (1) once Alea lost its motion for summary judgment based on late notice "it is estopped from denying coverage on other grounds," (2) Muller was driving his tractor "for his own convenience and not in the business of Affiliated when the accident occurred," (3) "Muller cannot be deemed to have been operating on behalf of Affiliated simply because Muller was under dispatch," and (4) "Alea is responsible for the entire $750,000 [default] judgment even though its policy had a $500,000 policy limit."

The record does not reveal if Muller had a personal vehicle at the Affiliated terminal in which he could, or usually would, commute. It was stipulated that about half the drivers left their tractors at the Affiliated Terminal overnight and that it was cheaper to commute by passenger car.

As already noted, Muller took the tractor home on the night of October 10 and was en route to the Maher terminal on the morning of October 11, when the accident occurred. Muller was unaware of the fact that he hit a pedestrian. He made the pick up at 6:47 a.m. and was at the Affiliated terminal by the time it opened. In this circumstance, we agree with Judge Perri that the tractor was involved in a "business use" at the time of the accident. The conclusion is supported by the totality of circumstances here, not just the fact that Muller was "under dispatch" at the time of the accident. We also agree that Alea's refusal to provide a defense in March of 2004 based on lack of notice did not preclude a subsequent disclaimer based on lack of coverage because of the "trucking" use.

The judgment is affirmed substantially for the reasons stated in Judge Perri's formal opinion of March 5, 2008, and the July 12, 2008, opinion denying reconsideration. See also Moper Transp. v. Norbet Trucking, 399 N.J. Super. 146, 155 (App. Div.), certif. denied, 196 N.J. 462, 463 (2008); Planet Ins. Co. v. Anglo Am. Ins. Co., 312 N.J. Super. 233, 236-41 (App. Div. 1998).

Affirmed.

 

Muller assigned his claims for coverage to the estate, and the estate assigned its interests to Clarendon in exchange for a settlement and release.

After the default was entered, the estate amended its complaint and sought a declaratory judgment against Alea and Clarendon.

The estate's action was against Muller and Affiliated. It is undisputed that in order to obtain an ICC license, a shipper must have liability insurance covering the leased truck, but to reduce its costs, the shipper usually requires the lessor to obtain "bobtail" coverage for the tractor to provide primary coverage for "non-trucking" use. Hence, the parties agree that this appeal, in essence, involves a dispute between carriers as to which one is primary for the accident in question.

The "joint statement of material facts" reflects that Muller had three personal vehicles, but drove to the Affiliated Terminal in his tractor to drop off paperwork after completing a prior dispatch on the afternoon of October 10, 2001.

This time was stipulated. It was also stipulated that "Berth 80 at Maher Terminal is open from 6[:00] a.m. to 4[:00] p.m." and that "[t]he dispatch hours for Affiliated are from 7:00 a.m. until 6:00 p.m."

We note that, although certification was granted in Connecticut Indem. Co. v. Dowdy, 192 N.J. 72 (2007), the appeal was dismissed as certification was improvidently granted, 194 N.J. 260 (2008). The Appellate Division opinion is unpublished and cannot be cited as precedent. See R. 1:36-3.

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A-2275-08T3

October 16, 2009