Jefferson Ins. Co. of New York brought a declaratory judgment action asking the trial court to declare that a tow truck leased by LaCosta Recovery Services, Inc. was not covered under a commercial vehicle policy issued by Jefferson to LaCosta. LaCosta was owned by C. T. DeFranks who operated a towing business with numerous tow trucks insured under the policy. The coverage question arose after the tow truck at issue was involved in an accident, and claims were made against DeFranks and LaCosta by Ella Wilder and others who were injured in the accident. Jefferson made alternative claims that there was no coverage because: 1 the tow truck at issue was never listed as an insured vehicle under the policy, or 2 even if the vehicle was covered under the policy, the policy was void from its inception because of fraudulent misrepresentations by the insured. In the event the second alternative was accepted and the policy was found to be void from its inception, Jefferson further characterized its action as a bill in the nature of an interpleader by which it tendered the entire amount of the policy premiums paid by the insured under the void policy. Jefferson asked the trial court to determine what portion of the tendered premiums should be refunded to the insured, and what portion was earned by Jefferson because of the requirement that it provide compulsory vehicle insurance.
The trial court granted summary judgment to Jefferson under the first alternative finding that the tow truck was not covered because it was never an insured vehicle under the policy. In the same order, the trial court also denied a motion to dismiss the declaratory judgment action which alleged there was no actual controversy to support the action because Jefferson had already declared the policy void. This appeal was taken by Wilder and other parties injured in the accident, who were named as defendants in the declaratory judgment action because of their interests in coverage under the policy. For the reasons set forth below, we find that the trial court correctly denied the motion to dismiss, and correctly concluded that the tow truck was not covered by the Jefferson policy. Accordingly, we affirm the grant of summary judgment in favor of Jefferson Ins. Co.
