Remsden v. Dependable Ins. Co.
| Decision Date | 23 December 1976 |
| Citation | 71 N.J. 587,367 A.2d 421 |
| Parties | Ricardo REMSDEN, Plaintiff-Appellant, v. DEPENDABLE INSURANCE CO., Defendant-Respondent. |
| Court | New Jersey Supreme Court |
Leonard J. Altamura, Union City, for plaintiff-appellant (Altamura & Finnerty, Union City, attorneys).
Bryan Cohen, Camden, for defendant-respondent (Ballen & Cohen, Camden, attorneys; Arthur E. Ballen, Camden, on the brief).
The opinion of the court was delivered by
The plaintiff Ricardo Remsden instituted an action in the Hudson County District Court to recover from his collision insurance carrier, the defendant Dependable Insurance Company, Inc., compensation for damages resulting from an accident involving his vehicle. The District Court concluded that the plaintiff was not entitled to recover because of a false representation made in the plaintiff's application for the policy. The Appellate Division affirmed by a vote of 2 to 1 and the appeal is before us as of right by virtue of the dissent. R. 2:2--1(a).
The Dependable Insurance Company, Inc., authorized to issue policies in the State under the surplus lines law, N.J.S.A. 17:22--6.40 Et seq., distributed a one page application form to customers seeking a collision policy. Following a part of the form entitled 'Insured's Statement' was a request for 'the only drivers of the described vehicles'. This was followed by a statement that 'motor vehicle reports will be drawn on all listed drivers.' The plaintiff, who sought coverage for his Ford Mustang, filled in only his name as a driver. At the bottom of the form and above the signature appeared the statement: 'Failure on the part of the insured to indicate other drivers and new drivers as they become drivers and residents of insured's household shall void coverage with respect to such other drivers.'
The defendant issued its policy in which it agreed to pay for direct and accidental damage to the plaintiff's automobile caused by collision within a one year period commencing November 15, 1971. No reference was made in the policy to the application form or to any of the statements contained therein. On November 30, 1971, the car while being driven by the plaintiff's brother Felix was involved in an accident. The property damage was stipulated at $2600. The insurance carrier, although it expressly disclaimed any intentional misrepresentation or fraud, refused payment because Felix's name had not been listed as a driver on the application.
The trial court held that, although the defendant had not proven or relied upon fraud, the plaintiff had made a false statement in the application which the defendant had relied upon and therefore the policy was voidable. The Appellate Division, agreeing with the trial court, rejected the plaintiff's contention that the application statements were meaningless because they were not incorporated or referred to in the policy. It also concluded that the application language calling for the names of drivers was clear and unambiguous and that the defendant relied upon the representation that only the named insured would drive the car.
Judge Botter dissented on a number of grounds. We find it necessary to advert to only...
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