John Hancock Mut. Life Ins. Co. v. Fiorilla

• Decision Date: 19 March 1964
• Docket Number: No. C--351,C--351
• Citation: 83 N.J.Super. 151,199 A.2d 65
• Parties: JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation, Plaintiff, v. Rose FIORILLA, Olaf Lundeman and Thomas Fiorilla, a minor, Defendants.
• Court: New Jersey Superior Court

Page 151

83 N.J.Super. 151

199 A.2d 65

JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a Massachusetts

corporation, Plaintiff, v. Rose FIORILLA, Olaf Lundeman and Thomas Fiorilla, a minor, Defendants.

No. C--351.

Superior Court of New Jersey

Chancery Division.

March 19, 1964.

McCarter & English, Newark, for plaintiff (Eugene M. Haring, Newark, appearing).

Furst, Furst & Feldman, Newark, for defendants (Irving Mariash, New York City, appearing; Martin Duyk, Newark, on the brief).

PASHMAN, J.S.C.

Plaintiff John Hancock Mutual Life Insurance Company (herein 'Hancock') seeks an interlocutory injunction against defendant Rose Fiorilla, who seeks the same relief against Hancock.

On October 8, 1963 Hancock commenced a plenary suit against Alexander Fiorilla and Olaf Lundeman to cancel three insurance policies. The first policy, in the amount of $14,000, was issued to Alexander Fiorilla as owner, and insured the life of his minor son Thomas. Under the terms of the policy, upon the death of the owner while Thomas Fiorilla was a minor, Thomas was to become the owner of the policy. Cancellation is sought, based upon alleged misrepresentations in a reinstatement application, a breach of the conditions contained in the application for reinstatement, and the alleged equitable fraud of Alexander Fiorilla based upon the doctrine of continuing representations.

The second policy was issued to Alexander Fiorilla and insured his life for $160,000. The defendant Rose Fiorilla was the beneficiary. Hancock seeks cancellation on the grounds that the insured was guilty of equitable fraud by failing to disclose a change in his health occurring subsequent to the date of the application but prior to the date of delivery of the policy.

The third policy was issued to Olaf Lundeman as owner and beneficiary and insured the life of Alexander Fiorilla. Hancock seeks cancellation based upon alleged material misrepresentations of health by Alexander Fiorilla.

On December 30, 1963 Alexander Fiorilla died of cancer (the condition allegedly misrepresented to plaintiff). On January 2, 1964 Rose Fiorilla filed suit in New York on the policy under which she was the beneficiary. On January 8, 1964 Hancock filed in this court what it termed an 'Amended Complaint,' joining as defendants to the October 8, 1963 suit Rose and Thomas Fiorilla. The complaint and so-called 'Amended Complaint' are the same except that the death of Alexander is recited and Rose and Thomas were named as party defendants because their rights as a beneficiary and owner under the respective policies had accrued. The name of Alexander Fiorilla was deleted from the 'Amended Complaint.'

Hancock seeks to restrain Rose Fiorilla from prosecuting her action in New York or from proceeding in any way on any of the policies except in this action. Rose Fiorilla has moved, on several grounds, to restrain Hancock from proceeding with this action as far as she is concerned. Rose Fiorilla sought a temporary injunction in the New York Supreme Court, where she sought to restrain Hancock from prosecuting this or any other action on the policy. This motion was denied on February 11, 1964.

As grounds for its position Hancock alleges, Inter alia, that injunctive relief should be granted to prevent vexatious litigation, to prevent an evasion of the policy of this forum, and because this forum had prior possession of the controversy. Rose Fiorilla contends that Hancock's so-called 'Amended Complaint' was defective in that it named a new party to the original suit, which is contrary to R.R. 4:15--1 because Rose's interest in the policy did not vest until Alexander's death and new process could not be made by way of amended complaint on a new party whose rights did not exist when the initial suit was begun. Rose Fiorilla argues that even if an amended complaint were allowed by the court, jurisdiction would only be effective on the date new process was served, I.e., January 8, 1964. Based upon the same reasoning, Rose Fiorilla alleges that leave should have been sought to file a supplemental complaint pursuant to R.R. 4:15--4. Hancock argues that regardless of these technicalities, the basic philosophy of our court rules as well as the equities and practicalities of the situation dictate judgment in its favor.

There is no question but that a court of equity possesses the power over persons within its jurisdiction to restrain them from prosecuting suits in other jurisdictions where such action would be contrary to equity and good conscience. Zieper v. Zieper, 14 N.J. 551, 567, 103 A.2d 366 (1954); O'Loughlin v. O'Loughlin, 6 N.J. 170, 178, 78 A.2d 64 (1951); Bigelow v. Old Dominion Copper, etc., Co., 74 N.J.Eq. 457, 473, 71 A. 153 (Ch.1908). Such decrees are In personam judgments against the party who has instituted the foreign litigation. O'Loughlin v. O'Loughlin, supra. Some of the reasons espoused by our courts for granting such injunctive relief are: (1) to prevent vexatious and oppressive litigation and/or to prevent a multiplicity of litigation, Trustees of Princeton University v. Trust Co. of N.J., 22 N.J. 587, 127 A.2d 19 (1956); O'Loughlin v. O'Loughlin, supra, 6 N.J. at p. 180, 78 A.2d p. 64; (2) to prevent an evasion of some policy of the forum state, Bigelow v. Old Dominion Copper, etc., Co., supra, 74 N.J.Eq. at p. 473, 71 A. 153; or (3) to allow the court which first obtains possession of the controversy to dispose of it. Prudential Ins. Co. v. Merritt-Chapman & Scott Corp., 112 N.J.Eq. 179, 163 A. 894 (Ch.1933). These general rules are applicable with equal force to both parties' motions.

Proper procedure requires a plaintiff to move for leave to file an amended complaint after 20 days have elapsed from the date of service of the complaint. R.R. 4:15--1. The same procedure must be followed where a party desires to file a supplemental complaint. R.R. 4:15--4. Hancock followed neither of these procedures but merely filed a complaint joining the two additional parties. Counsel, both in the briefs and orally, argued extensively as to whether a new party could be joined in either an amended complaint or a supplemental pleading. Indeed, there is a diversity of opinion in our own jurisdiction. But such amendments have been allowed, each case turning upon the particular factual circumstances presented to the court. Cf., De Sisto v. Linden, 80 N.J.Super. 398, 193 A.2d 870 (Law Div.1963); Sinatra v. National X-Ray Products, 26 N.J. 546, 141 A.2d 28 (1958); Markey v. Robt. Hall Clothes of Paterson, 27 N.J.Super. 417, 99 A.2d 552 (Cty.Ct.1953); Patrick v. Brago, 4 N.J.Super. 226, 66 A.2d 749 (App.Div.1949). Although most of the cases in this area arose because of a possibility of a cause of action being lost by reason of the running of the statute of limitations, the court finds, apropos a statement by Judge Halpern in another statute of limitations case:

'* * * Courts should disregard subtleties and answer technical objections by an honest effort to determine the real issues on their merits and to do substantial justice between the litigants. * * *' Tackling v. Chrysler Corp., 77 N.J.Super. 12, 16, 185 A.2d 238, 240 (Law Div.1962).

The case of Manhattan Life Ins. Co. v. Manger, 66 F.Supp. 670 (D.N.J.1946), is instructive. There the plaintiff insurance company sued to rescind its policy naming the insured as a defendant. Suit was brought within the contestable period. Thereafter an amended complaint was filed after the period of contestability, with the beneficiary named as a defendant. The insured asserted that the beneficiary was an indispensable party who had been brought in after the expiration of the contestable period. The court allowed the amended complaint to stand and...