Jusiak v. Commercial Cas. Ins. Co.

• Citation: 169 A. 551
• Parties: JUSIAK et al. v. COMMERCIAL CASUALTY INS. CO.
• Decision Date: 18 October 1933
• Court: New Jersey Supreme Court

169 A. 551

JUSIAK et al.

v. COMMERCIAL CASUALTY INS. CO.

Supreme Court of New Jersey.

Oct. 18, 1933.

Action at law by Adam Jusiak, administrator ad prosequendum of the estate of Boleslaw Jusiak, deceased, and another against the Commercial Casualty Insurance Company. On motion to strike the answer and separate defenses.

Motion granted.

Orlando & Kisseiman, of Camden, for plaintiffs.

T. Harry Rowland, of Camden, for defendant.

ELDREDGE, Circuit Judge.

The complaint in the instant suit alleges that prior to February 23, 1932, defendant had issued its policy of insurance to William W. Clark, indemnifying him against loss and liability by reason of any claim or judgment against him growing out of the operation of an automobile; that thereafter the plaintiff Adam Jusiak, administrator of the estate of Boleslaw Jusiak, deceased, in an action in the Camden county circuit court, obtained judgment against the said Clark for $5,000 and costs amounting to $107.10; that on the 19th day of July, 1933, execution was issued by the clerk of Camden county and placed in the hands of the sheriff, and that on the 26th day of July, 1933, the execution was returned unsatisfied.

The defendant, in addition to its answer, sets up ten separate defenses, all of which, in the judgment of the court, must be stricken.

Without attempting to set out the defenses in full, this court is of the opinion that all the questions raised in the answer are fully met by:

1. Horn y. Commonwealth Casualty Co., 103 N. J. Law, 616, 147 A. 483, which, among other things, holds that "insolvency, apart from its specific definition in the Bankruptcy Act (11 USCA § 1), means a general inability to answer pecuniary engagements. * * * As used in the policy, it has this meaning. * * * It is hard to conceive a more cogent proof of inability to answer pecuniary engagements than the return of an execution unsatisfied."

2. Suydam v. Public Indemnity Co., 161 A. 499, 500, 10 N. J. Misc. 868, which states that "there is no question but that, under numerous decisions in this and other states, the investigation by a liability company of a case between an injured person and the insured, and taking charge of and conducting the defense for an insured, constitute a waiver of defenses under the policy which may be interposed by the insurer in a suit by the insured, and estops the insurer from setting them up in such a suit."

3. And Stefus v. London & Lancashire Indemnity Co., 111 N. J. Law, 6, 166 A. 339...