WILFREDAH KUSIMBA v. S&J ENTERPRISE, INC.

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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3235-08T2

WILFREDAH KUSIMBA,

Plaintiff-Appellant,

S&J ENTERPRISE, INC., CARL M.
LOVE, JR., FROG TRUCKING, JAMES
ROGERS, RODNEY DENZMORE,
YELLOW TRANSPORT,

Defendants,

and

ESSEX INSURANCE COMPANY,

Defendant-Respondent.
--------------------------------------------------------------

May 13, 2010
Argued March 8, 2010 - Decided

Before Judges Reisner and Chambers.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-
242-06.

Stephanie Ann Mitterhoff argued the cause
for appellant (Law Offices of John J.
Pisano, attorneys; Ms. Mitterhoff, of
counsel and on the brief; John J. Pisano, on
the brief).

Kimbley A. Kearney of the Illinois,
Louisiana and New York bar, admitted pro hac
vice, argued the cause for respondent
(Clausen Miller, P.C., attorneys; Ms.

Kearney and Mark J. Pastuszak, on the
brief).

PER CURIAM

Plaintiff Wilfredah Kusimba appeals from the trial court

order of February 6, 2008, declaring that defendant Essex

Insurance Company (Essex) has no duty to indemnify and defend

defendant FROG Trucking (FROG) in this lawsuit. We affirm,

concluding that plaintiff's claim against FROG fell within an

exclusion in FROG's insurance policy with Essex, and hence,

Essex was not obligated to defend and indemnify FROG in this

litigation.

This suit was brought by plaintiff for personal injuries

arising out of a multi-vehicle accident that took place on

September 15, 2005. On that day, the vehicle plaintiff was

operating was struck by a truck belonging to defendant S & J

Enterprise, Inc. (Enterprise). From the State Trooper's report

of the accident, it appears that the brakes on Enterprise's

truck failed, causing the accident. Because the truck brakes

had been repaired by FROG prior to the accident, FROG was also

brought in as a defendant in the case.

FROG had a commercial general liability policy with Essex.

At the outset, before an answer had been filed on behalf of

FROG, Essex disclaimed coverage in a letter dated January 29,

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2007, to FROG. Plaintiff then named Essex as a direct defendant

and moved for summary judgment, seeking a declaration that

Essex's policy provided FROG with coverage for the accident.

While the motions were pending, on October 2, 2007, FROG

assigned its rights to coverage for the accident under the Essex

policy to plaintiff.

On November 16, 2007, the trial court held for plaintiff

and entered an order directing Essex to provide coverage to FROG

for plaintiff's accident and directing Essex to file an answer

on behalf of FROG. Essex filed a motion for reconsideration.

While the motion was pending, Essex sent a letter dated January

7, 2008, to FROG, explaining that it would be providing a

defense to FROG pursuant to the court order, but under a

complete reservation of rights. The letter advised that Essex

believed that its policy provided no coverage, and as a result,

it would be seeking reconsideration of the court order and may

pursue an appeal. While the motion for reconsideration was

pending, counsel retained by Essex filed an answer on behalf of

FROG.

On February 6, 2008, the trial court granted the motion for

reconsideration and determined that Essex did not have a duty to

defend and indemnify FROG with respect to plaintiff's claims.

It denied plaintiff's motion for summary judgment and granted

A-3235-08T2
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Essex's cross-motion for summary judgment. This is the order

that is the subject of this appeal.

Essex did not receive the order until May 30, 2008. In a

letter dated June 4, 2008, Essex advised FROG of the order and

stated that it would not be responsible for any liability of

FROG arising from the suit. Essex did agree to continue to

provide a defense for FROG on a gratuitous basis until the

conclusion of the trial.

The case was listed for trial on February 9, 2009, and on

that date plaintiff, FROG, and Essex reached a conditional

stipulation of dismissal preserving all rights on appeal. Under

the terms of the stipulation, plaintiff's claims against FROG

were dismissed; however, plaintiff's right to appeal the

February 6, 2008, order granting summary judgment to Essex was

preserved.

On appeal, plaintiff contends that the terms of the Essex

policy provide FROG with coverage for the claims. Plaintiff

also maintains that Essex waived or is estopped from denying

coverage because it provided a defense of FROG in the litigation

without a proper reservation of rights.1 In opposition, Essex

1
Plaintiff also states that by virtue of the assignment from
FROG, she has standing to challenge the court's ruling on the
Essex policy. Essex does not challenge plaintiff's standing to
take this appeal.

A-3235-08T2
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asserts that plaintiff's claim falls within two auto exclusions

and the products/completed operations hazard exclusion in the

policy. Essex also disputes plaintiff's waiver or estoppel

argument, recounting the reservation of rights letters it sent

to FROG as noted above.

In our review of a trial court's decision on a summary

judgment motion, we apply the same standard as the trial court.

Prudential Prop. & Cas. Ins. Co. v. Boylan,
307 N.J. Super. 162,

167 (App. Div.), certif. denied,
154 N.J. 608 (1998). A party

is entitled to summary judgment if the record presents no

genuine issue of material fact and the movant is entitled to

judgment as a matter of law. R. 4:46-2(c).

In determining whether an exclusion precludes a claim, we

apply the usual rules of interpretation regarding the

construction of insurance policies. When interpreting a

contract, "we look to the plain language of the policy" and if

the terms in the policy are clear, we will enforce the policy as

written. Villa v. Short,
195 N.J. 15, 23 (2008). We will not

write "a better insurance policy than the one purchased." Ibid.

(quoting President v. Jenkins,
180 N.J. 550, 562 (2004)).

However, if the meaning of the language in a policy is

ambiguous, "we construe the language to 'comport with the

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reasonable expectations of the insured.'" Ibid. (quoting

Zacarias v. Allstate Ins. Co.,
168 N.J. 590, 595 (2001)).

Further, if one reasonable interpretation of the language favors

coverage and the other does not, we will interpret the policy to

provide coverage. Ibid.

We construe exclusions in insurance policies narrowly, and

the burden is on the insurer to establish that the claim falls

within an exclusion. Id. at 23-24. Any ambiguity in an

exclusion will be construed against the insurer. Am. Wrecking

Corp. v. Burlington Ins. Co.,
400 N.J. Super. 276, 282-83 (App.

Div. 2008). However, an exclusion that is "specific, plain,

clear, prominent and not contrary to public policy" will be

enforced. Id. at 283 (quoting Princeton Ins. Co. v. Chunmuang,

151 N.J. 80, 95 (1997)).

Our review of the policy indicates that it contains a

clear, prominent, and unambiguous exclusion entitled

"PRODUCTS/COMPLETED OPERATIONS HAZARD EXCLUSION." That

exclusion provides that "[t]his insurance does not apply to

'bodily injury' or 'property damage' included within the

'products/completed operations hazard.'" The policy defines

"products/complete operations hazard" as including "all 'bodily

injury' and 'property damage' occurring away from premises you

own or rent and arising out of 'your product' or 'your work.'"

A-3235-08T2
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The definition of "your work" includes "work or operations

performed by you or on your behalf." Hence the policy does not

provide coverage for bodily injury that occurred away from

FROG's premises and that arose from FROG's work or operations.

Plaintiff's claim falls within this exclusion because

plaintiff's bodily injury took place away from FROG's premises

and it arose out of FROG's work, namely FROG's alleged negligent

repair of the brakes on Enterprise's truck. Plaintiff has not

identified any specific language in this exclusion that is

ambiguous. Because plaintiff's claim so clearly falls within

this exclusion, we do not reach the additional question of

whether the auto exclusions also apply.

Plaintiff's argument that Essex failed to make a valid

reservation of rights is not of sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). We note

that on January 29, 2007, Essex sent a letter denying coverage

for plaintiff's claim. On January 7, 2008, after entry of the

trial court's order of November 16, 2007, finding coverage,

Essex undertook FROG's defense with a clear and unambiguous

reservation of rights. The letter gave the insured the

opportunity to choose its own counsel at Essex's expense. After

the trial court granted Essex's motion for reconsideration and

concluded that FROG did not have coverage under the policy,

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Essex sent a letter dated June 4, 2008, once again advising its

insured that the policy provided no coverage. The letter states

that "Essex Insurance Company will not indemnify FROG Trucking

for any damages, liability, verdict or judgment arising out of,

or relating to, this claim and lawsuit." In light of all of

this correspondence, the insured was on notice that Essex was

defending FROG under a reservation of rights.

Affirmed.

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