Miller v. Zurich General Acc. & Liability Ins. Co.

• Decision Date: 05 July 1955
• Docket Number: No. A--236,A--236
• Citation: 115 A.2d 597,36 N.J.Super. 288
• Parties: Louis A. MILLER and Hedwig E. Miller, Plaintiffs-Appellants, v. ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY, Ltd., and Elizabeth Helbig, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 288

36 N.J.Super. 288

115 A.2d 597

Louis A. MILLER and Hedwig E. Miller, Plaintiffs-Appellants, v. ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE COMPANY Ltd., and Elizabeth Helbig, Defendants-Respondents.

No. A--236.

Superior Court of New Jersey Appellate Division.

Argued May 16, 1955.

Decided July 5, 1955.

Ira J. Katchen, Long Branch, argued the cause for plaintiffs-appellants.

George J. Gockeler, Newark, argued the cause for defendant-respondent, Zurich General Accident & Liability Ins. Co., Ltd. (Gockeler & Cortese, Newark, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

Plaintiffs sued in the Monmouth County District Court as derivative claimants on a policy of automobile liability insurance issued by the corporate defendant as insurer to the individual defendant as named insured. Plaintiffs had previously recovered judgment in the county district court against Carol Helbig, minor daughter of the present defendant Helbig, for damages resulting from a collision between an automobile owned by Elizabeth Helbig and operated by Carol and an automobile owned and operated by the plaintiff Louis A. Miller. In that action there was a judgment of dismissal in favor of Elizabeth Helbig, who had been joined as defendant. This is an appeal from a judgment in favor of defendants, to the extent that it absolves the insurance company. The county district court judge, sitting without a jury, held that the company was excused by reason of failure of performance of conditions precedent laid in the insurance policy upon the operator of the Helbig car.

The accident here in question occurred July 31, 1953. There was sharply controverted testimony by Carl Helbig, the father of Carol, to the effect that he phoned the office of the issuing agent of the company the day after the accident to report the occurrence and spoke to the agent about it subsequently. The complaint in the damage suit was filed August 18, 1953. Service was made August 19, 1953 on the defendant Elizabeth Helbig personally and upon the defendant, Carol Helbig, sued by her guardian Ad litem, Carl Helbig, by leaving a copy of the papers with his wife, Elizabeth Helbig. By letter dated August 20, 1953 and received by the defendant company August 24, 1953, and attorney representing Mrs. Helbig, personally, forwarded the summons and complaint served upon Elizabeth Helbig. The letter states: 'My investigation discloses that the accident was due to the sole negligence of Mr. Miller'. The letter did not enclose or refer to the service of the summons and complaint served, as aforestated, upon Carol Helbig, through her guardian Ad litem. It is undisputed that Carol's operation of the car was within the scope of the policy definition of 'Insured' as including any person using the vehicle with the permission of the named insured. The defendant company replied under date of September 2, 1953 to the attorney's letter and disclaimed any liability because of the asserted failure of the insured to give it notice 'as soon as practicable of the happening of the accident, together with all pertinent information pertaining thereto'. The company took no part in the defense of the damage suit.

In the present action and appeal the position of the defendant is that there was a breach by the insured, Carol Helbig, of contractual conditions precedent pertaining to written notification of the defendant of the accident and its particulars and requiring the forwarding of the summons and complaint served on Carol to the company. The language of the policy in these respects is as follows:

Condition 6 of the policy reads:

'No action shall lie against the company, unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy * * *'.

Condition 1 is as follows:

'When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.'

Condition 2 is as follows:

'If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative'.

The trial judge found, notwithstanding the testimony of Carl Helbig, that no notice of the accident was given the defendant company at all until it received the letter dated August 20, 1953. There was evidence to support the conclusion and we take it as a fact. The judgment of the court in favor of the company, however, appears to have rested, not on the lateness of notice or on the substantive inadequacy of the complaint, which it did receive on August 24, 1953, as furnishing particulars of the accident, but upon the fact that Carol Helbig did not Herself notify the company of the accident and send it the smmons and complaint served upon her. The court indicated it regarded the notification of the company of the accident by the forwarding of one copy of the process as timely, within the clause, 'as soon as practicable,' but that Carol's failure to make the notification or send in the process served on her was fatal to the claim, under Whittle v. Associated Indemnity Corporation, 130 N.J.L. 576, 33 A.2d 866 (E. & A.1943). On this appeal the company defends on the same theory, although it does not concede the timeliness or the adequacy of the notification. Plaintiffs contend that the sending in of the summons and complaint on behalf of Elizabeth should be taken as notification to the company inuring in favor of Carol, so far as the giving of notice is concerned, and that the information contained therein and its transmission constituted substantial compliance with the other quoted terms of the policy by or on behalf of Carol.

We agree with the disposition of this matter by the trial court but we approach the result by another path. We are not necessarily in accord with the determination below that it is required, for derivative recovery by an injured person against the tort-feasor's insurance carrier, that an additional insured under the policy, found liable, must himself have given notice of the accident to the company and personally forwarded the process served upon him. The Whittle case, supra, does not require that we go that far. The nub of that case was that the absenting himself for over two months by the additionally insured driver of the car constituted a fatal failure of the condition of cooperation by the insured. The court implied (130 N.J.L. at page 580 33 A.2d 869,) that the policy requirement of notice of the accident might be regarded as satisfied, 'on behalf' of the driver, by the immediate information thereof given by the named insured. It is true that the court also said that the company was entitled 'to have from its assured, as soon as practicable after the accident, all of the prescribed information available to its assured concerning the accident'. (130 N.J.L. at page 580, 33 A.2d at page 869.) But we do not believe the court was thus necessarily specifying the required contents of the notice of the accident, or indicating that the driver-insured was required personally to give it, but, rather, was only indicating that the driver-insured was obligated to remain available to supply to the company so much of the specified kind of information as was not contained in the notice of the accident. In respect to the matter presently under discussion it is to be noted that Condition 1, quoted above, permits the required notice to be given 'by or on behalf of the insured' and we think that when a case flatly calling for it is presented it may well be held that one other than the driver-insured may give the company the notice of the accident (assuming that the particulars furnished are adequate) and forward to it any process served on such driver. See Slavens v. Standard Accident Ins. Co., 27 F.2d 859, 861 (9th Cir. 1928); Scott v. Inter-Insurance Exchange, 352 Ill. 572, 186 N.E. 176 (Sup.Ct.1933); McClellan v. Madonti, 313 Pa. 515, 169 A. 760 (Sup.Ct.1934).

This disposition of the Ratio decidendi of the county district court requires that we turn our attention to the other bases for immunity advanced by the insurer: (a) it received no notice of the accident 'as soon as practicable'; (b) the notice did not contain sufficient 'particulars' and 'information' concerning the accident, as prescribed by Condition 1 of the policy; and (c) there was not immediately (or at all) forwarded to the company the summons and complaint served on the driver of the car.

Since, as indicated above, performance of the conditions stated is made by the policy a condition precedent to recovery thereon, we are controlled by the rule that, in the absence of waiver or estoppel, neither of which are here advanced, the company is entitled to assert substantial non-performance of any condition as a defense to any proceeding against it on the policy, entirely without regard to whether or not it has been prejudiced by the default. Whittle v. Associated Indemnity Corporation, supra; Bankers Indemnity Insurance Company v. A.E.A. Co., Inc., 32 N.J.Super. 471, 108 A.2d 464 (App.Div.1954). It was suggested in argument that the harshness of the Whittle rule warrants a new approach. But a deliberately considered determination by a court of last resort is not to be disregarded by one of intermediate appellate status. Jersey Central Power & Light Co. v. Asbury Park, 128 N.J.L. 141, 146, 24 A.2d 526 (Sup.Ct.1942), affirmed Jersey Central Power & Light Co. v. Monmouth County, etc., 129 N.J.L. 253, 29 A.2d 139 (E. & A.1942).

There having been no prior notice of accident, the first question presented is as...