Samuel N. Zarpas, Inc. v. Morrow

• Decision Date: 18 April 1963
• Docket Number: Civ. No. 661-62.
• Citation: 215 F. Supp. 887
• Parties: SAMUEL N. ZARPAS, INC., now known as Missile Sites, Inc., Plaintiff, v. Daniel J. MORROW and William R. Mauzy, individually and trading as Mauzy and Morrow and Associates, Defendants, Third-Party Plaintiffs, v. W. J. ROBBINS & COMPANY and Alan Boud Flack, Third-Party Defendants.
• Court: U.S. District Court — District of New Jersey

215 F. Supp. 887

SAMUEL N. ZARPAS, INC., now known as Missile Sites, Inc., Plaintiff, v. Daniel J. MORROW and William R. Mauzy, individually and trading as Mauzy and Morrow and Associates, Defendants, Third-Party Plaintiffs, v. W. J. ROBBINS & COMPANY and Alan Boud Flack, Third-Party Defendants.

Civ. No. 661-62.

United States District Court D. New Jersey.

April 18, 1963.

Haines & Schuman, Toms River, N. J., for plaintiff.

Berry, Whitson & Berry, Henry H. Wiley, Toms River, N. J., for defendants and third-party plaintiffs.

Dawes & Dawes, Kenneth J. Dawes, Sr., Trenton, N. J., for third-party defendant Flack.

LANE, District Judge.

Third-party defendant moves for dismissal of declaratory judgment action wherein a determination of liability under the provisions of a Land Surveyors Errors and Omissions Policy is sought.

In March 1960, Underwriters at Lloyd's, London, issued through their agent, third-party defendant W. J. Robbins & Company, for the period from April 1, 1960 to April 1, 1961, the Errors and Omissions Policy here involved, insuring the third-party plaintiffs, Mauzy and Morrow, civil engineers and land surveyors, against liability in connection with professional services rendered. The policy contains the following relevant clauses:

"NOW, THEREFORE, this Insurance, subject to the terms and conditions hereof, indemnifies the Assured against any claim or claims for breach of duty as Land Surveyors which may be made against them during the period stated in the said Schedule by reason of any negligent act, error or omission, whenever or wherever committed or alleged to have been committed, on the part of the Assured or any person who has been, is now, or may hereafter during the subsistence of this Insurance be employed by the Assured, in the conduct of any business conducted by or on behalf of the Assured in their capacity as Land Surveyors." (Emphasis added.)

"6. (ii) If during the subsistence hereof the Assured shall become aware of any occurrence which may subsequently give rise to a claim against them by reason of any negligent act, error or ommission sic, and shall during the subsistence hereof give written notice to the Underwriters of such occurrence, any claim which may subsequently be made against the Assured arising out of that negligent act, error or omission shall be deemed for the purposes of this Insurance to have been made during the subsistence hereof."

Plaintiff Zarpas had contracted to construct a Nike Hercules Missile Site at Dicktown, New Jersey, and on March 23, 1961, retained defendants Mauzy and Morrow to perform engineering and surveying work there. Defendants' work was completed on or about March 24, 1961 (a week prior to the termination date of the policy). On October 27, 1961 (six months subsequent to the termination date of the policy) Zarpas notified Mauzy and Morrow that its work was negligently done in that one of the buildings on the site had been improperly located. This...