Essex Foundry v. Biondella

• Decision Date: 28 January 1941
• Docket Number: No. 46.,46.
• Citation: 17 A.2d 568
• Parties: ESSEX FOUNDRY et al. v. BIONDELLA.
• Court: New Jersey Supreme Court

17 A.2d 568

ESSEX FOUNDRY et al.

v. BIONDELLA.

No. 46.

Court of Errors and Appeals of New Jersey.

Jan. 28, 1941.

Appeal from Supreme Court, Essex County.

Action by Essex Foundry and others against Louis Biondella for a declaratory judgment and to enjoin an action by defendant against plaintiffs. From rules resulting in dismissal of the action against defendant, plaintiffs appeal.

Appeal dismissed.

Milton M. Unger, of Newark, for appellants.

Elsie Rand, of Newark (Joseph Coult, of Newark, of counsel), for respondents.

PERSKIE, Justice.

This is an action or proceeding under the uniform declaratory judgment law. R.S. 2:26-66 et seq., N.J.S.A. 2:26-66 et seq. Plaintiffs appeal from two separate rules on only one of which judgment final was entered and both of which will hereafter be referred to as rules. Both rules, among other things, resulted in the dismissal of the action against the defendant, Louis Biondella, the respondent here.

No proofs were offered. The orders under review are based solely upon the facts set forth in appellants' petition and the schedules annexed thereto. A brief statement of these facts will lay bare the alleged justiciable controversy upon which relief was sought but denied.

From 1923 to May of 1939, Louis Biondella worked for appellants in their foundry at Newark, N. J., where cast iron pipes were manufactured.

For varying periods between July 4, 1925, and October 1, 1939, appellants were covered with standard workmen's compensation and employers' liability policies of insurance which were issued to them by the Travelers Insurance Company, Hartford Accident & Indemnity Company and Liberty Mutual Insurance Company, the other named defendants below.

By the terms of these policies each insurer agreed, among other things, (a) "to pay" promptly and in the manner provided by said policies the entire amount due to any of appellants' employees under our workmen's compensation act, (b) "to indemnify" appellants against loss by reason of liability imposed upon them by law for damages on account of injuries to their employees, and (d) "to defend" any suits or proceedings instituted against appellants under the stated circumstances, although such suits or proceedings "are wholly groundless, false or fraudulent."

On October 28, 1939, Biondella caused a common law action to be instituted against appellants, his employers, in the Supreme Court of our state. The actionable negligence alleged, common law and statutory (R.S. 34:6-99, 100, N.J.S.A. 34:6-99, 34:6-100), was, generally stated, based upon appellants' failure to provide him with "safe methods and means" with which to do his work and failure to provide him with a "reasonably safe place" in which to work. As a result of the alleged negligence, Biondella alleged that he contracted, during his employment by appellants, the ailment or disease of silicosis, and he further alleged, in substance, that since silicosis is not included in the schedule of compensatory occupational diseases (see Workmen's Compensation act, R.S. 34:15-31, N.J.S.A. 34:-15-31), he employed the stated form of action to recover his resultant damages. Cf. Rosacci v. United States Pipe & Foundry Co., 123 N.J.L. 357, 8 A.2d 707.

Appellants notified their named insurance carriers of this suit by Biondella, and called upon them to defend it. This they refused to do.

Appellants thereupon filed this petition in the Supreme Court alleging, in substance, that a question, or controversy, arose as to whether or not the insurance carriers, or some of them, were obliged to defend and indemnify them by reason of the suit by Biondella. Appellants prayed for a declaratory judgment (a) to settle and to afford relief to them from any uncertainty and unsecurity with respect to their rights, status and other legal relations with reference to said policies, (b) to declare the rights, status, obligations and other legal relations of the parties to this petition, or any of them, growing out of the policies issued to appellants and to determine the controversy arising thereon, (c) to adjudge that the insurance carriers be obliged to defend the action by Biondella and (d) to determine whether the statute of limitations barred the suit by Biondella, and whether his action should not have been brought under our workmen's compensation act. Additionally, appellants prayed (e) that the Biondella suit be restrained until there was a determination of the relief sought, and (f) that an order be made that process issue directing all parties named in the petition as defendants to answer the petition.

Pursuant to prayer (f) an order was made that summons...