Flynn v. Hartford Fire Ins. Co.

• Citation: 370 A.2d 61,146 N.J.Super. 484
• Parties: James M. FLYNN, Plaintiff-Respondent, v. HARTFORD FIRE INSURANCE COMPANY, Defendant-Appellant. James GRIECO, Plaintiff-Respondent, v. HARTFORD FIRE INSURANCE COMPANY, Defendant-Appellant.
• Decision Date: 03 February 1977
• Court: New Jersey Superior Court — Appellate Division

Page 484

146 N.J.Super. 484

370 A.2d 61

James M. FLYNN, Plaintiff-Respondent, v. HARTFORD FIRE INSURANCE COMPANY, Defendant-Appellant.

James GRIECO, Plaintiff-Respondent, v. HARTFORD FIRE INSURANCE COMPANY, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 11, 1977.

Decided Feb. 3, 1977.

John P. Markey, Hackensack, for appellant Hartford Fire Ins. Co. (Markey, Witham & Amabile, Hackensack, attorneys)

William N. Dimin, Hackensack, for respondent James M. Flynn (Walsh, Sciuto & Dimin, Hackensack, attorneys).

Steven J. Stillman, Hackensack, for respondent James Grieco (Lucianna, Bierman & Stillman, Hackensack, attorneys).

Before Judges LORA, CRANE and MICHELS.

The opinion of the court was delivered by

MICHELS, J.A.D.

Defendant Hartford Fire Insurance Company (Hartford) appeals from a judgment of the Law Division declaring that its liability policy of insurance issued to the Borough of Englewood Cliffs (borough) provided coverage to plaintiffs James M. Flynn and James Grieco, police The facts are not in dispute. Police officers Flynn and Geieco, while responding to an emergency call at the home of Mr. and Mrs. Delchop in Englewood Cliffs, were confronted by Delchop. Delchop who was armed, raised his gun and allegedly stated that he would kill the two officers. The officers thereupon shot and killed Delchop.

officers employed by the borough, with respect to a wrongful death claim made against them and the borough.

Subsequently a wrongful death action was instituted against the borough and both plaintiffs by Mrs. Delchop as executrix of her husband's estate. She charged in the complaint that plaintiffs were negligent in the performance of their duties as police officers when they shot and killed her husband. Hartford assumed the defense of the action on behalf of the borough but refused to defend plaintiffs, contending that they were not covered by the liability policy of insurance issued to the borough. Plaintiffs thereupon instituted these actions seeking a declaration that the Hartford policy provided coverage for the claim against them and that Hartford was obligated to defend and indemnify them with respect thereto. Plaintiffs claim that although the Hartford policy designated only the borough as the named insured, the intent of the parties was to cover all employees of the borough individually as well. They argue that such intent can be gleaned from a description of the hazards set forth in the General Schedule--Section II of the Liability Insurance Form and Comprehensive General Liability Endorsement attached to and forming a part of the policy. This endorsement contained a description of hazards and location of premises and operations covered by the policy and included ¹ Policemen, including premises and other operations

medical.

On cross-motions for summary judgment, the Law Division agreed with plaintiffs and entered judgment in their favor against Hartford, declaring that Hartford was required to defend and indemnify plaintiffs with respect to the wrongful action instituted against them. Hartford appeals.

Our function in construing a policy of insurance, as with any other contract, is to search broadly for the probable common intent of the parties in an effort to find a reasonable meaning in keeping with the expressed general purposes of the policy. See Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 567, 178 A.2d 185 (1962); Tooker v. Hartford Acc. and Indem. Co., 128 N.J.Super. 217, 222--223, 319 A.2d 743 (App.Div.1974); Ins. Co. of State of Penna. v. Palmieri, 81 N.J.Super. 170, 179, 195 A.2d 205 (App.Div.1963), certif. den. 41 N.J. 389, 197 A.2d 15 (1964). However, when the policy of insurance is clear and unambiguous, it has long been the law of this State that the court is bound to enforce the policy as it is written. It is not the function of the court to make a better contract for the parties than they themselves have seen fit to enter into or to alter it for the benefit of one party and to the detriment of the other. Linden Motor Freight Co., Inc. v. Travelers Ins. Co., 40 N.J. 511, 525, 193 A.2d 217 (1963); James v. Federal Ins. Co., 5 N.J. 21, 24--25, 73 A.2d 720 (1950); Kupfersmith v. Delaware Ins. Co., 84 N.J.L. 271, 275, 86 A. 399 (E. & A. 1912); Am. Leg. Hosp. v. St. Paul Fire Ins. Co., 106 N.J.Super. 393, 397, 256 A.2d 57 (App.Div.1969).

Applying these principles to the policy of insurance here under consideration, we are firmly convinced that the policy does not nor was it intended to provide coverage to the individual employees of the borough, such as plaintiffs policemen. The policy designated the borough as the only named insured and described the named insured as the municipality. In the circumstances it is clear that the borough is the insured and not the individual employees of that borough. While we recognize that a municipal corporation, such as the borough, is merely a legal entity and can act only by and through its officers and employees, this does not mean that its officers and employees are A fortiori covered individually by the policy of insurance issued to the municipal corporation, where it is the only named insured. Cf. 3 Couch on Insurance, 2d § 23.26 (Dec. 1976 Supp.); Shapiro v. Di Guillio, 95 Ill.App.2d 184, 237 N.E.2d 771, 775-- Furthermore, we find no merit in plaintiffs' claims that the Comprehensive General Liability insurance Endorsement created any ambiguity in the name or description of the insured or those intended to be covered by the policy. The Hartford policy provided two general types of coverage to the borough: property coverage under Section I and liability coverage under Section II. Under the liability coverage Hartford agreed to pay on behalf of the borough all sums which the borough became legally obligated to pay as damages because of the death or injury to third persons arising out of the hazards covered by the policy. The hazards which Hartford agreed to cover for the borough are set forth in the policy and the various endorsements attached thereto. The Liability Insurance Form and...