Diaco Construction Ins. vs. Ohio Security Insurance Co., 2019 WL 3521933

New Jersey Appellate Division (2019)

This case involved an accident in which the plaintiff, an insured under a policy of insurance issued by the defendant, suffered the loss of an excavator into a river due to employee neglect and/or malfunction of the excavator. The insurance policy issued by the defendants to the plaintiff contained first party coverage for the excavator and the defendant paid the plaintiff for the loss of the excavator itself.

On the other hand, plaintiff incurred unspecified additional charges imposed by the City as a result of the removal of the excavator from the river, and then made claim against the defendant under the general liability provisions of the insurance policy. The defendant asserted that the claim was not one for “property damage” and also asserted exclusions under the policy involving damage to property on which the insured was working and damage to impaired property.

The Appellate Division, considering the grant of summary judgment to the insurer in the lower court, upheld the denial, finding that; (a) the request of the city for the removal of the excavator was not a “claim” under the policy; (b) there was no physical injury, as required by the policy, because there was no damage to the river; (c) policy exclusions, would have applied to the claim, in any event.

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