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FRANKART DISTRIBS. v. FEDERAL INS. CO.

August 27, 1985

FRANKART DISTRIBUTORS, INC., Plaintiff,
v.
FEDERAL INSURANCE COMPANY, Defendant.



The opinion of the court was delivered by: SPRIZZO

SPRIZZO, D.J.:

Plaintiff Frankart Distributors, Inc. ("Frankart") sues defendant Federal Insurance Company ("Federal") to recover attorneys' fees incurred by Frankart when Federal allegedly wrongfully refused to defend Frankart in a lawsuit. The action is before the Court on cross-motions for summary judgment.

 The parties have stipulated to the material facts, which are as follows. Federal issued to Frankart a Commercial Umbrella Liability Policy, number 7923-34-04 ("the Policy"), which was effective at all relevant times herein. The Policy provided excess insurance over any other "underlying" policy held by Frankart, and covered:

 
all sums . . . for which the insured shall become to pay by reason of liability
 
(a) imposed upon the insured by law or
 
(b) assumed under contract or agreement by the insured,
 
arising out of personal injury, property damage or advertising liability caused by an occurrence.

 See Stipulated Facts, Exhibit A at [P] 1 (emphasis in original).

 The policy defines an occurrence as:

 
an accident, including continuous or repeated exposure to conditions, which results in personal injury, property damage or advertising liability neither expected nor intended from the standpoint of the insured.

 Id. at 5 (emphasis in original).

 An "endorsement" dated January 30, 1975 provided that the policy excluded coverage of any "[l]oss, damage or expense caused intentionally by or at the direction of the insured." Id. (emphasis in original).

 The policy also provided that:

 
With respect to any occurrence not covered by the underlying policies . . . but covered by the terms and conditionedof this policy the Company shall, in addition ...

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