Clement v. Atlantic Cas. Ins. Co.

• Decision Date: 02 November 1953
• Docket Number: No. A--21,A--21
• Citation: 13 N.J. 439,100 A.2d 273
• Parties: CLEMENT v. ATLANTIC CAS. INS. CO.
• Court: New Jersey Supreme Court

Page 439

13 N.J. 439

100 A.2d 273

CLEMENT v. ATLANTIC CAS. INS. CO.

No. A--21.

Supreme Court of New Jersey.

Argued Oct. 5, 1953.

Decided Nov. 2, 1953.

Abraham I. Harkavy, Newark, argued the cause for appellant (Harkavy and Lieb, Newark, attorneys).

Samuel A. Gennet, Newark, argued the cause for respondent.

The opinion of the court was delivered by

WACHENFELD, J.

The appellant, an insurance company, in 1948 issued its policy to Joseph Clement, a New Jersey resident, insuring him against loss in the operation of his automobile.

While driving his car covered by the policy, Clement was involved in an accident in New York, running into a parked car. His fiancee, Norma Roberts, the respondent, a passenger, was injured. She brought suit in the Supreme Court of New York against both Clement and the owner of the parked car.

Service of process was made on Clement June 3, 1949 in New York State, where he daily visited his fiancee at her home. The following day they married and became domiciled in New Jersey.

The case was tried in the Supreme Court, New York County, in May 1952, resulting in a verdict against Clement for $1,500, after it had been disclosed that the parked car owner had effected a settlement with the respondent for $2,000.

Because of the marriage, the appellant disclaimed liability on the policy and refused payment. The respondent accordingly brought this suit to recover the sum due.

Cross-motions for summary judgment were made under Rule 3:56, now R.R. 4:58, and the respondent prevailed. Clement v. Atlantic Casualty Ins. Co., 25 N.J.Super. 96, 95 A.2d 494 (Essex Cty.Ct.1953). From the judgment so entered this appeal is taken, the case being certified here on our own motion.

The appellant, by way of defense, says: the policy of insurance does not cover the claim made; no action can be maintained against the insurance company by the spouse of the assured; the action was not maintainable for failure to comply with conditions precedent, and issues of fact were raised which could not be decided on a motion for summary judgment unsupported by affidavits.

Turning to the contract in question, the appellant relies particularly upon the clause 'by reason of liability imposed upon him by law for damages * * * arising out of the ownership, maintenance or use of the automobile,' and contends 'liability imposed by law' refers to liability as determined exclusively by the law of the State of New Jersey.

We cannot agree with this suggestion. Generally, the rule of the Lex loci delicti, or the law of the place where the tort or wrong is committed, controls and the rights and liabilities arising out of an automobile accident are governed by the law of the state in which the accident occurs regardless of where the insurance policy was issued. The policy in question covers not only liability as determined by the law of New Jersey, where the contract was made, but also liability imposed by the law of the state in which the accident occurred.

Admittedly, the respondent had a right of action under the New York law which was not extinguished by reason of her marriage. This is evident by her recovery in that state of the judgment which is the basis for the amount she now claims from the insurance company.

The coverage provided by the insurance policy extended to accidents 'while the automobile is within the United States of America, Canada or Newfoundland * * *.' Clearly, such liability as arose under the law of New York, where the accident in question occurred, was within the terms of the policy.

There is ample authority supporting these views, and the underlying reasoning is best illustrated in Coster v. Coster, 289 N.Y. 438, 46 N.E.2d 509, 146 A.L.R. 702 (Ct.App.1943), and Howard v. Howard, 200 N.C. 574, 158 S.E. 101 (Sup.Ct.1931). Extensive quotation from these cases is warranted because they shed much light on the general problem encountered as affected by different jurisdictions.

In the Coster case, supra, the plaintiff, a resident of New York, while a guest in defendant's automobile, was injured by the negligent operation of the car in Massachusetts. The plaintiff sued the defendant in New York and then married him there. It was contended the plaintiff's capacity to sue must be determined under the Massachusetts law, the Lex loci, and there plaintiff's marriage extinguished her right to maintain the action. This defense was sustained, the court holding (289 N.Y. 438, 46 N.E.2d 511):

'Under the laws of Massachusetts, the plaintiff was competent to sue Coster to recover damages for personal injuries due to his negligence since she was not his wife at the time of the occurrence of the accident and at the time of bringing suit, but her subsequent marriage to Coster extinguished her right to maintain the action. * * * The doctrine of identification still bars the maintenance of such a suit in that State by a married woman against her spouse. In this State, our public policy is to the contrary. * * * Her right to bring and to maintain the suit and to recover damages against her spouse is a substantive right, a part of her cause of action and not a mere matter of remedy. * * * As to substantive rights, the Lex loci, not the law of the forum, controls and will be enforced in the courts of the forum in a transitory action such as this unless our public policy forbids. * * * But our public policy to permit the maintenance by one spouse of a suit against the other to recover damages for personal injuries does not require or authorize our courts to ignore foreign law affecting substantive rights where such law merely differs from our own. To render the foreign law unenforceable here as contrary to our public policy under such circumstances, it must additionally violate 'some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.' * * * The acceptance of that doctrine is general. * * *'

In the Howard case, supra, suit was brought in North Carolina by a wife against her husband for damages for personal injuries caused by his negligence in operating an automobile involved in an accident which occurred in New Jersey. The husband, admitting a wife could sue a husband in North Carolina, nevertheless contended she could not sue under the laws of New Jersey, where the accident occurred, and his defense was sustained, the court sayin...