Manhattan Fire & Marine Ins. Co. v. Nassau Estates II

• Citation: 217 F. Supp. 196
• Decision Date: 16 May 1963
• Docket Number: Civ. A. No. 559-62.
• Parties: The MANHATTAN FIRE & MARINE INS. CO., Plaintiff, v. NASSAU ESTATES II, James Hammill, an infant, etc., et al., Defendants.
• Court: U.S. District Court — District of New Jersey

217 F. Supp. 196

The MANHATTAN FIRE & MARINE INS. CO., Plaintiff, v. NASSAU ESTATES II, James Hammill, an infant, etc., et al., Defendants.

Civ. A. No. 559-62.

United States District Court D. New Jersey.

May 16, 1963.

McKeown, Harth & Enright, Newark, N. J., for plaintiff, by Vincent Jennings, Newark, N. J.

Taub & Taub, Passaic, N. J., for defendant Nassau Estates II, by Samuel Weiss, Newark, N. J Theodore T. Tams, Jr., Princeton, N. J., for defendants Hammill.

WORTENDYKE, District Judge.

Jurisdiction in this action is predicated upon diversity of citizenship and appropriately alleged in the complaint. Relief is sought under the Federal Declaratory Judgments Act, 28 U.S.C. § 2201.

The plaintiff, a liability insurance company, alleges that it issued its policy of indemnification to Nassau Estates II, covering liability imposed by law upon the insured for damages on account of personal injuries suffered by any person as a result of an accident occurring during the policy period. The plaintiff further alleges that by the terms of the policy and as a condition precedent to rights thereunder, the insured was required to give written notice of an accident as soon thereafter as practicable. It is further alleged that on April 24, 1962, an accident occurred on property owned by the insured, wherein the infant defendant is alleged to have been injured, and whereby the infant's parents have sustained pecuniary loss for medical expense and have been deprived of the infant's services.¹ The complaint further alleges that the insured failed to give notice of the accident as soon as practicable, as required by the policy; and that it did not report said accident until May 21, 1962. It is further alleged that a dispute has arisen involving plaintiff's contention that by virtue of delay on the part of the insured in giving notice of the accident, plaintiff is not required to indemnify insured for loss arising from liability which may be imposed by law, by reason of said accident.

Although named as defendants, no relief by way of injunction, or otherwise, is sought against the injured infant or his parents. However, a judgment is sought against the insured, declaring that the plaintiff is relieved of liability under its policy by reason of the asserted lateness of the report of the accident.

The insured's answer admits the issuance of the policy, but either denies or pleads lack of information respecting the other critical allegations of the complaint. The answer affirmatively pleads as separate defenses that the notice required by the policy was given in accordance with its terms; and that (1) the plaintiff is not entitled to an advisory opinion of this Court, nor does the plaintiff show jurisdictional elements which will entitle it to a declaratory judgment; and (2) that the plaintiff fails to state a claim upon which relief can be granted.

The plaintiff moves "for an order striking the defense of lack of jurisdiction" contained in the answer of the insured. Annexed to the notice of motion, and embodied in an affidavit of one of the attorneys for the plaintiff, is disclosed information elicited from the individual defendants, which precludes a finding that less than the jurisdictional minimum to support diversity jurisdiction is involved. (See footnote 1, supra.) There is no allegation in the complaint that an action has been brought by the individual defendants against the insured.

In opposing the present motion, the insured contends that the allegations of the complaint are insufficient to show that the plaintiff is entitled to a declaratory judgment. To support this contention the insured charges that the complaint is insufficient to present a claim upon which relief may be granted. The defendant further contends that the affidavit annexed to the notice of motion may not be considered; and that by the use of the words "alleged" and "allegedly" in the complaint allegations relating to the happening of the accident and injuries suffered by the infant defendant, the complaint negates the existence of a substantial justiciable controversy. This latter contention I reject.

The instant motion is obviously brought under F.R.Civ.P. 12(f). The defense to which this motion is addressed is "redundant" which is one of...