Providence Washington Ins. Co. v. Hogges

CourtNew Jersey Superior Court – Appellate Division
Citation67 N.J.Super. 475,171 A.2d 120
Docket NumberNo. A--997,A--997
PartiesPROVIDENCE WASHINGTON INSURANCE COMPANY, Plaintiff-Respondent, v. Thomas HOGGES, Defendant-Appellant.
Decision Date12 May 1961

Page 475

67 N.J.Super. 475
171 A.2d 120
Thomas HOGGES, Defendant-Appellant.
No. A--997.
Superior Court of New Jersey
Appellate Division.
Argued Feb. 27, 1961.
Decided May 12, 1961.

Page 476

Robert Kleiner, Paterson, for appellant (Harry Zax, Paterson, attorney).

Donald L. Berlin, East Orange, for respondent (Stevenson & Willette, East Orange, attorneys).


The opinion of the court was delivered by

[171 A.2d 121] GAULKIN, J.A.D.

This case was submitted to the county district court for decision upon a stipulation of facts. The stipulation sets forth that plaintiff insurer issued a policy to defendant, insuring him against damage of his automobile by collision. Plaintiff apparently also insured defendant against liability, by the same or another policy. The only portion of the collision policy which is made part of the record is the following clause:

'In the event of any payment under this policy, the company shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.'

On or about March 15, 1957 defendant, while driving his automobile, was in a collision with a car owned by Bernard Sage and driven by Joseph Pistocchi. Sage and Pistocchi will hereafter be called the tortfeasors. Plaintiff and defendant

Page 477

settled defendant's claim on the collision policy on the basis that defendant's car had suffered $900 damage, and plaintiff paid defendant $850, there apparently being a $50 deductible clause. The date of this payment by plaintiff is not given.

Thereafter, on or about February 3, 1958, Hogges instituted an action for personal injuries and property damage against the tortfeasors, which resulted, on April 24, 1958, in a judgment against Hogges of no cause of action. Plaintiff insurer 'was at no time given notice of the commencement or pendency of the suit in the Bergen County District Court and did not participate in the prosecution of the said action.'

The stipulation then says:

'On December 30, 1958, suit was instituted against the defendant, Thomas Hogges, by Bernard Sage for property damage arising out of this said accident in the amount of Six Hundred ($600.00) Dollars. * * * Plaintiff, Providence Washington Insurance Company, entered a defense under the terms of their policy aforesaid.

'On March 2, 1959, plaintiff Providence Washington Insurance Company counter-claimed for the property damage incurred by the defendant herein under the terms of the subrogation clause of the policy aforesaid. Subsequent to April 24, 1958, for the first time, the plaintiff, Providence Washington Insurance Company was informed of the action that had been brought in the Bergen County District Court. Thereafter the suit brought by Bernard Sage was settled in the amount of Two Hundred and Seventy-Five ($275.00) Dollars and the plaintiff, Providence Washington Insurance Company dismissed their counterclaim for property damage.'

Upon the basis of this stipulation of facts, the trial court entered judgment for the plaintiff for $850, and defendant appeals.

The complaint in the action now before us, and the answer if any, have not been made part of the appendix, in violation of R.R. 1:7--2. Consequently, we do not know upon what theory plaintiff framed its complaint. However, from plaintiff's brief it appears that its position is that the carrying of the action to an unsuccessful conclusion without its knowledge prejudiced plaintiff's rights as a matter of law, and that this entitled plaintiff to the return of its $850 payment

Page 478

without proof that the tortfeasors were actually liable, or that plaintiff was in fact damaged. Plaintiff equates the facts at bar with the situation where an insured gives a general release to the tortfeasor after having received payment from his insurer. In such a case, says plaintiff, citing the Dictum in Rogers v. American Fidelity & Casualty Company, 52 N.J.Super. 254, 262, 145 A.2d 344, 348 (App.Div.1958), the insurer is entitled to recover the entire sum paid to the insured [171 A.2d 122] 'without showing any evidential demonstration of liability by the third person to the insured.'

But the situations cannot be equated. Plaintiff admits in its brief 'that the defendant had a right to institute a civil action for personal injuries,' and it does not contend that it is entitled to notice of the institution or prosecution of an action for personal injuries alone. It does contend, '(h) owever, (that) the defendant had no right to institute an action for property damage without putting the plaintiff on notice of the pendency of such an action.'

Had Hogges sued for his personal injuries alone, the adverse judgment (which, under the stipulated facts, we must assume...

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14 cases
  • Dome Petroleum v. EMPLOYERS MUT. LIABILITY INS., Civ. A. No. 84-97.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 2 Dicembre 1991
    ...equitable principles apply to a contractual subrogation clause. 635 F.Supp. at 1401. They do. Providence Washington Ins. Co. v. Hogges, 67 N.J.Super. 475, 482, 171 A.2d 120...
  • Ives v. Coopertools, a Div. of Cooper Industries, Inc., 1
    • United States
    • United States State Supreme Court of Wisconsin
    • 28 Febbraio 1997
    ...recovery, including attorney fees, before insurer can assert its right of legal subrogation); Providence Washington Ins. Co. v. Hogges, 67 N.J.Super. 475, 171 A.2d 120, 124 (N.J.Super.Ct.App.Div.1961); St. Paul Fire & Marine Ins. Co. v. W.P. Rose Supply Co., 19 N.C.App. 302, 198 S.E.2d 482,......
  • Culver v. Insurance Co. of North America
    • United States
    • United States State Supreme Court (New Jersey)
    • 15 Giugno 1989
    ...failed then to consider the contractual relevance of the specific subrogation agreement. In Providence Washington Ins. Co. v. Hogges, 67 N.J.Super. 475, 171 A.2d 120 (App.Div.1961), the court held that when the Page 457 insurance policy contained only a general subrogation clause that did n......
  • Reardon v. Allen, s. L--25628--62
    • United States
    • Superior Court of New Jersey
    • 2 Luglio 1965
    ...not be able to recover in a subrogation action for property damage brought thereafter. See Providence Washington Ins. Co. v. Hogges, 67 N.J.Super. 475, 478, 171 A.2d 120 (App.Div.1961). It is said that the subrogee 'steps into the shoes of the insured and can recover only if the insured lik......
  • Request a trial to view additional results

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