Mariani v. Bender
| Decision Date | 04 December 1964 |
| Docket Number | No. A--1002,A--1002 |
| Citation | 85 N.J.Super. 490,205 A.2d 323 |
| Parties | Joseph MARIANI et al., Plaintiffs-Respondents, v. Edward BENDER and Liberty Mutual Insurance Company, Defendants and Cross-Claimant-Respondent, and Selected Risks Insurance Company, Defendant-Appellant on Appeal and on Cross-Claim, and Elizabeth T. Wedakind et al., Defendants. |
| Court | New Jersey Superior Court — Appellate Division |
Michael Patrick King, Camden, for defendant-appellant (Kisselman, Devine, Deighan & Montano, Camden, attorneys; Neil F. Deighan, Jr., Camden, of counsel).
Alvin E. Granite, Woodbury, for plaintiffs-respondents (Granite & Granite, Woodbury, attorneys).
Burchard V. Martin, Camden, for defendant-cross-claimant-respondent Liberty Mut. Ins. Co. (Taylor, Bischoff, Neutze & Williams, Camden, attorneys).
Before Judges GOLDMANN, SULLIVAN and LABRECQUE.
The opinion of the court was delivered by
SULLIVAN, J.A.D.
Defendant Selected Risks Insurance Company (Selected Risks) appeals from a declaratory judgment that it has the primary obligation to defend and indemnify Edward Bender for any and all claims arising out of a certain hit-and-run accident occurring on July 30, 1961, in the Borough of Glassboro, Gloucester County, New Jersey, in which Robert Mariani and Vincent Sirolli were injured. The judgment also granted relief incidental to the declaratory ruling.
The basic facts are undisputed. In May 1961 Edward Bender obtained a $10,000 and $20,000 nonowner automobile liability policy from Liberty Mutual Insurance Company (Liberty Mutual). Such insurance was required by the State of New Jersey as a condition of restoring Bender's driver's license. Towards the end of July Bender took a second-hand automobile which he had just purchased to Frederic J. Wedakind, trading as Fred's Auto Service, for repairs and was loaned a vehicle to use while the repairs were being made. The loaned vehicle was insured under a $50,000 and $100,000 garage liability policy issued to Wedakind by Selected Risks, which policy covered the operation of owned vehicles in connection with the service station.
On July 30, 1961 Bender, while operating the loaned vehicle, was involved in a hit-and-run accident, resulting in injury to Robert Mariani and Vincent Sirolli. Mariani was very seriously injured and was in a coma for thirty days. Bender did not stop his vehicle because he was driving on a 'red license' and was fearful it would be revoked if his involvement in the accident became known.
A few days later, an employee of Wedakind, who had been sent to Bender's home to pick up the loaned vehicle, noticed that it had been involved in an accident. The employee notified the police who impounded the vehicle and questioned Bender about the damage to it. Bender insisted that he had 'clipped a tree' at his brother's, although it was pointed out to him that there was a different color paint on the damaged fender. Bender persisted in his story until October 11 when he finally admitted to the police his involvement in the accident in which Mariani and Sirolli were injured.
Following the initial questioning of Bender by the police, he consulted an attorney about his being a suspect in the hit-and-run accident. He told the attorney the same story that he had originally told the police. However, the attorney advised him to notify Liberty Mutual, his personal insurance carrier, and this was done.
There is some evidence that four or five days after the accident Wedakind spoke to the insurance agent who had written the Selected Risks policy about Bender's being involved in an accident while driving the vehicle which had been loaned to him and that he struck a young man. (Wedakind died suddenly on August 19). The agent denied any such conversation and testified that the first he learned of the possible involvement of one of the Wedakind vehicles in an accident was on September 18 when Mrs. Wedakind asked him if her late husband had said anything about the accident. She then proceeded to give him the facts as she knew them at that time. The agent reported the matter to the branch manager of Selected Risks and an investigator was assigned to the case. The investigator spoke with Bender and told him that Selected Risks had coverage on the Wedakind vehicle. On September 26 the investigator obtained a signed statement from Bender denying any involvement in the Mariani, Sirolli accident. The investigator also interviewed the police who outlined the facts upon which they 'felt' that Bender was involved. Bender spoke with the investigator on several subsequent occasions and persisted in his denial.
As heretofore noted, Bender on October 11 finally told the police the true story of what had happened. Selected Risks learned of the confession within a day or so. On October 16 Bender went to Selected Risks' office and gave a written statement retracting his original statement, and giving a detailed and truthful version of the accident.
On October 20 counsel for Selected Risks sent Bender a letter setting forth the fact of coverage of the vehicle 'which you were operating' and that under the terms of the policy 'you may be considered as an additional assured * * * for any claims arising out of the said accident.' The letter then set forth the following:
By written instrument dated the same date, Bender and Selected Risks executed a non-waiver agreement which, after reciting the facts of insurance coverage and Bender's operation of the vehicle at the time of an alleged accident, stated the following:
'* * * WHEREAS * * * it is undetermined whether the accident and any claims that may arise therefrom are within and covered by the terms and provisions of the above described policy of insurance; It is, therefore, agreed by and between the undersigned that any action, interview, investigation or defense of said Municipal Court action on behalf of Edward Bender or any further actions with reference to said accident undertaken by the Selected Risks Insurance Company, its agents, servants or representatives, SHALL NOT CONSTITUTE A WAIVER OF NOR INVALIDATE any of the terms, conditions or provisions of the above described policy or of any of the rights or defenses thereunder pertaining to the undersigned.
The Selected Risks Insurance Company by undertaking any further action concerning the accident does not admit that above described policy affords any coverage to Edward Bender and said company does not and will not waive nor will any further action undertaken constitute a waiver of any of the provisions, terms, conditions, exclusions, defenses, qualifications or limitations set forth in said policy referred to herein above.'
On or about November 15, 1961, Joseph Mariani, individually, and as guardian Ad litem for Robert Mariani, instituted a civil action for damages against Bender, and Mrs. Wedakind as administratrix of the estate of Frederic J. Wedakind.
By letter dated December 7 Selected Risks sent Bender a formal disclaimer of liability. The letter stated:
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