LoRocco v. N. J. Mfrs. Indem. Ins. Co., A--370
| Decision Date | 13 February 1964 |
| Docket Number | No. A--370,A--370 |
| Citation | 82 N.J.Super. 323,197 A.2d 591 |
| Parties | Pietro LoROCCO et al., Plaintiffs-Appellants, v. N.J. MANUFACTURERS INDEMNITY INSURANCE CO., etc., Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Joseph G. Barbieri, Elizabeth, for appellants (Barbieri & Esposito, Elizabeth, attorneys, Joseph G. Barbieri, Elizabeth, of counsel).
James I. Bowers, Somerville, for respondent (Bowers, Rinehart & Murphy, Somerville, attorneys, James I. Bowers, Somerville, of counsel).
Before Judges GOLDMANN, KILKENNY and COLLESTER.
The opinion of the court was delivered by
KILKENNY, J.A.D.
Plaintiffs instituted a declaratory judgment action in the Chancery Division and sought thereby an adjudication that defendant insurance company must pay in addition to $3700 in compensatory damages already paid by it, $9500 in punitive damages awarded by a jury in the Law Division in their favor and against James Viswat, whom the insurance company had defended in the Law Division suit. The Chancery Division denied the relief requested by plaintiffs, dismissed their complaint and entered judgment in favor of defendant insurance company. Plaintiffs have appealed from that adverse determination.
On May 10, 1960 plaintiff Pietro LoRocco was injured and the automobile of his wife, Rosalie, was damaged when a vehicle, owned by Viswat Dairy, Inc. and operated by James Viswat, was driven into the rear of plaintiffs' automobile. Plaintiffs sued the corporate dairy and James Viswat, individually, charging additionally in their negligence complaint that the operator of the dairy's vehicle had acted in a 'deliberate, wanton and reckless manner.' There was no demand for punitive damages, as such, in the complaint.
Defendant insurance company undertook the defense of the action, since it had issued its liability policy insuring Viswat Dairy, Inc. and any other person using this vehicle with the permission of the insured. The complaint alleged that James Viswat was acting as agent of Viswat Dairy, Inc. at the time of the collision.
No specific-claim of punitive damages was asserted by plaintiffs in any pretrial discovery proceeding or in the pretrial order. Paragraph 1 of the pretrial order, in which R.R. 4:29--1(b)(1) requires to be set forth a concise descriptive statement of the nature of the action, referred to the suit as 'Automobile negligence action, personal injury and property damage.' Paragraph 5, wherein the rule requires a statement of 'all claims as to damages,' stated only, 'As set forth in answers to interrogatories.' These answers, in turn, referred only to the usual loss of salary, hospital and medical bills, and the like. The issues were expressed in paragraph 7 of the pretrial order as: 'Negligence, contributory negligence, damages, agency.' Thus, the pretrial order in the Law Division, which serves the purpose, Inter alia, of stating and simplifying the issues to be litigated, classified the suit as a 'negligence' action only and did not manifest in any clear manner that punitive damages were being sought. While 'damages' was stated generally as an issue, punitive damages are not recoverable in mere negligence suits. Eatley v. Mayer, 154 A. 10, 9 N.J.Misc. 918, 919 (Cir.Ct.1931), affirmed 158 A. 411, 10 N.J.Misc. 219 (Sup.Ct.1932); 15 Am.Jur. § 281, p. 721.
In his opening statement at the trial, plaintiffs' attorney told the jury that on the occasion in issue James Viswat had driven the dairy company's vehicle into the rear of the LoRocco car. He then said,
'Now, a complaint filed in this action states that Mr. Viswat was Negligent and that this Negligence was Wilful, it was Wanton, he struck him in the rear not once, but three times.' (Italics ours)
He then described the injuries sustained by Mr. LoRocco and the consequential hospital and medical care, loss of pay and expenses incurred. Though the claim was reasserted that 'young Mr. Viswat was Negligent, he struck this car in the rear' and that 'he did this in a Wanton manner,' there was no reference to any right to or claim for punitive damages. Instead, plaintiffs' attorney talked only of the theory of the law 'that if you have a justifiable complaint, the object of the law is to make you whole again.' Such is the theory of compensatory damages.
During the presention of their case, plaintiffs offered evidence tending to prove that defendant James Viswat had intentionally rammed the rear of their vehicle several times. Plaintiffs rested their case on the second day of the trial. When court resumed on the following morning, plaintiffs' attorney, on his own volition, moved, out of the presence of the jury, to amend paragraph 7 of the pretrial order in which the issues were specified as negligence, contributory negligence, damages and agency, 'to set forth specifically exemplary or punitive damages as one of the issues in this case.'
Counsel for the insurance company acting for defendants objected on the grounds that the motion came too late and that the complaint was one for negligence, containing the customary allegations thereof, despite the additional language noted above. He also claimed surprise. The trial court granted the motion to amend the pretrial order to specify a claim for punitive damages, noting the allegation of 'wanton' conduct in the complaint and expressing the opinion that the amendment, though not absolutely necessary, would clarify the issues.
We are informed that counsel for the insurance company thereupon orally notified the insured and James Viswat that the company would not be liable for punitive damages, if they were recovered, and that he was withdrawing from the defense of that claim to allow the insured and James Viswat to obtain counsel to defend them with reference thereto. Thereupon, the insured's president, William Viswat, and the driver, James Viswat, asked counsel for the insurance company to go ahead with the defense and stated that they would take their chances with regard to the punitive damages, so long as the insurance company would pay any compensatory damages which the jury awarded. With that understanding, counsel for the insurance company continued with the defense of the case.
At the close of all the evidence a motion was made for a dismissal as to Viswat Dairy, Inc., on the ground that the proofs established that James Viswat was not acting as its agent at the time of the happening. The motion was granted. The case was submitted to the jury only as to James Viswat, individually.
The jury awarded plaintiff Pietro LoRocco $3500 compensatory damages and $8500 punitive damages. It awarded plaintiff Rosalie LoRocco $200 compensatory damages and $1000 punitive damages. James Viswat, by his own separate attorney, thereafter applied for a new trial as to the award of punitive damages. His motion was denied. Defendant insurance company, as noted above, paid the compensatory damages but refused to pay the punitive damages. Plaintiffs' declaratory judgment action followed and was dismissed by the Chancery Division. We now consider the five points advanced by plaintiffs for reversal of this judgment.
Plaintiffs contend that defendant insurance company 'pursued a path that amounted to a conflict of interests' and should, therefore, he required to make payment of the punitive damage awards.
This point is without merit. In its general context, the complaint charged negligence and the pretrial order gave the suit the label of an 'automobile negligence action.' Under the terms of its policy, the insurance company was obliged to defend its insured and any other person operating the insured vehicle with permission of the insured against such a charge, regardless of any other allegations by plaintiffs.
The complaint was duplicitous in character since it embodied in a single count two separate causes of action, one for negligence and another for intentional wrongdoing. Negligence excludes design. It is a failure to use that degree of care which a man of ordinary prudence would have used under similar circumstances. When plaintiffs not only asserted negligence in their complaint, but also charged that James Viswat had operated the dairy's vehicle 'in such a Deliberate, wanton and reckless manner * * * so as to cause his vehicle to collide and crash into the rear of plaintiff's vehicle,' they charged the separate tort of trespass. As to the resulting personal injuries, plaintiffs were maintaining that an assault and battery had been committed by James Viswat. See Farm Bureau Mut. Automobile Ins. Co. v. Hammer, 177 F.2d 793, 796 (4 Cir.1949).
Plaintiff's duplicitous pleading placed defendant insurance company in an equivocal position. It was duty-bound to defend its insured and the driver as to the claim based on negligence. As to the alleged assault and battery, it could have properly refused to represent the alleged tortfeasor. Its policy expressly excepted coverage in the case of an assault and battery 'committed by or at the direction of an insured.' This is the conflict of interest referred to by plaintiffs. They argue that the course of action employed by the insurance carrier 'of...
To continue reading
Request your trial
-
Rova Farms Resort, Inc. v. Investors Ins. Co. of America
... ... Inc., 45 N.J.Super. 31, 131 A.2d 409 (App.Div.1957); LoRocco v. New Jersey Manufacturers Indemnity Ins. Co., 82 N.J.Super ... Page ... ...
-
First Nat. Bank of St. Mary's v. Fidelity & Deposit Co.
...Newark v. Hartford Accident & Indemnity Co., 134 N.J.Super. 537, 342 A.2d 513 (App.Div.1975); LoRocco v. N. J. Mfrs. Ind. Ins. Co., 82 N.J.Super. 323, 197 A.2d 591 (App.Div.1964); and Esmond v. Liscio, 209 Pa.Super. 200, 224 A.2d 793 (1966). Cases holding insurance coverage for such damages......
-
Hensley v. Erie Ins. Co.
...Insurance Company, 177 So.2d 52 (Fla.App.1965); Crull v. Gleb, 382 S.W.2d 17 (Mo.App.1964); Lo Rocco v. N. J. Manufacturers Indemnity Insurance Co., 82 N.J.Super. 323, 197 A.2d 591 (1964), aff'd mem., 42 N.J. 144, 199 A.2d 655, accord, City of Newark v. Hartford Accident and Indemnity Compa......
-
Hartford Acc. and Indem. Co. v. Village of Hempstead
...to correction employees.6 (E. g., Northwestern Nat. Cas. Co. v. McNulty, 5 Cir., 307 F.2d 432, Supra; Lo Rocco v. New Jersey Mfrs. Ind. Ins. Co., 82 N.J.Super. 323, 197 A.2d 591; Esmond v. Liscio, 209 Pa.Super. 200, 224 A.2d 793; Ohio Cas. Ins. Co. v. Welfare Fin. Co., 8 Cir., 75 F.2d 58, c......
-
Punitive damages: when, where and how they are covered.
...(N.J.Super. 1975) (coverage for punitive damages violated public policy). Lo Rocco v. New Jersey Manufacturers Indemnity Insurance Co., 197 A.2d 591 (N.J. Super. 1964) (coverage for punitive damages imposed on account of direct liability would violate public Malanga v. Manufacturers Casuall......
-
CHAPTER 10 Directors and Officers Liability and Professional Liability Insurance
...Missouri: Crull v. Gleb, 382 S.W.2d 17 (Mo. App. 1964). New Jersey: LoRocco v. New Jersey Manufacturers Indemnity Insurance Co., 82 N.J. Super. 323, 197 A.2d 591 (N.J. Super. App. Div.), cert. denied 42 N.J. 144, 199 A.2d 655 (1964). New York: Hartford Accident & Indemnity Co. v. Village of......
-
Chapter 9
...Missouri: Crull v. Gleb, 382 S.W.2d 17 (Mo. App. 1964). New Jersey: LoRocco v. New Jersey Manufacturers Indemnity Insurance Co., 82 N.J. Super. 323, 197 A.2d 591 (N.J. Super. App. Div.), cert. denied 42 N.J. 144, 199 A.2d 655 (1964). New York: Hartford Accident & Indemnity Co. v. Village of......