Sutera v. Provident Ins. Co. of N. Y.

Decision Date11 May 1961
Docket NumberNo. A--103,A--103
Citation67 N.J.Super. 554,171 A.2d 340
PartiesRuth Miller SUTERA, Plaintiff-Respondent, v. PROVIDENT INSURANCE COMPANY OF NEW YORK, Defendant-Appellant. Ann NASTOI, Plaintiff-Respondent, v. PROVIDENT INSURANCE COMPANY OF NEW YORK, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Leo D. Burrell, Newark, for defendant-appellant (Fred W. Jung, Jr., Newark, attorney).

Stephen Mongiello, Hoboken, for plaintiff-respondent Ann Nastoi.

John E. Wolf, Maplewood, for plaintiff-respondent Ruth Miller Sutera (Lawrence Wolfberg, Union City, and Steisel, Gundersdorf, Wolf & Sorrentino, Jersey City, attorneys).

Before Judges CONFORD, FREUND and KILKENNY.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

Plaintiffs brought separate actions against the defendant insurance company to recover on its contract to insure Walter Kauger and Grace Kauger (his wife) on a standard automobile liability insurance policy. The actions are predicated on judgments previously recovered in the Hudson County District Court as follows: (a) in favor of plaintiff Ruth Sutera for $1,000, and (b) in favor of plaintiff Ann Nastoi for $1,200, against Grace Kauger in each instance, for personal injuries sustained by plaintiffs in an automobile accident which occurred December 9, 1956, involving a collision between the Kauger car and another owned and operated by one Guarraci. Plaintiff Nastoi was a passenger in the Kauger car and plaintiff Sutera a passenger in the Guarraci vehicle.

Defendant defended the present actions, which were consolidated, on the grounds of fraud and failure of cooperation by its assured, Grace Kauger. At the conclusion of all the proofs the trial court, sitting with a jury, granted motions for judgments in favor of the plaintiffs, and denied a motion for judgment in favor of the defendant in both actions.

Paragraph 1 of the 'Conditions' of the policy requires the insured to give notice of an accident to the company, including reasonably obtainable information respecting the time, place and circumstances of the accident and names of available witnesses. Paragraph 18 of the conditions provides that the insured shall cooperate with the company and shall assist in securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. Paragraph 8 is to the effect that no action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of the policy.

The defense of the claims at the trial was based primarily upon the testimony of Fred W. Jung, Jr., a lawyer, and Edward Curran, Jr., an investigator employed by defendant.

Jung's testimony was to the following effect. Early in 1957 he was retained by the defendant company to defend the negligence actions brought by the present plaintiffs in December 1956 insofar as defendant's assured, Grace Kauger, was involved. Mrs. Sutera (then Ruth Miller), joining as co-plaintiff with Guarraci, had sued Grace Kauger as the operator of the Kauger vehicle; Miss Nastoi had sued Guarraci and Mrs. Kauger as the respective operators of the vehicles involved. The cases were consolidated for trial. Jung first filed a counterclaim against Guarraci for contribution as a joint tortfeasor. Shortly thereafter he arranged with Mrs. Kauger to represent her personally on a counterclaim against Guarraci for her personal injuries and damages to her car. At that time Mrs. Kauger informed him that she was the driver of her car at the time of the accident. Somewhere between one and three months prior to the taking of depositions in the case (taken May 24, 1957), an attorney for one of the plaintiffs informed Jung that it was his information that Mrs. Kauger was not driving her car at the time of the accident. Jung promptly questioned her about this, but she insisted she had been the driver, saying, 'They are lying * * *. I was driving. There was no man in the car.' When the deposition of Guarraci was taken, on the date mentioned, he testified that '* * * there was a man driver at the seat.' Mrs. Kauger and another woman, he said, were in the front seat. Again Jung questioned Mrs. Kauger closely: 'You have to tell me the truth * * *. Was there anyone else in the car?' She answered: 'Absolutely not * * *. I was driving the car.' On the same occasion the depositions of plaintiff Nastoi were taken, and she, too, testified that Mrs. Kauger was the driver of the car. Based upon what Mrs. Kauger told him, Jung had her sign sworn answers to interrogatories to the effect that she was the driver of the car. He reviewed the matter with her again a week or ten days later and she adhered to her story. He said he then 'believed her.'

The negligence case was reached for trial in the District Court June 2, 1958. The judge in chambers asked the parties concerning the possibility of settlement. When Jung counsulted Mrs. Kauger concerning her views as to this, she said to him, 'Mr. Jung, I can't hold this back any longer, I have got to tell the truth.' She then told him that she was not driving the car that night; that she owned a tavern in Union City; that plaintiff Nastoi, who was a friend and customer of hers, and a woman named Rose Pisanello were there and were in the company of two men; that all five got into the Kauger car; and that at the time of the accident one of the men, named Esposito, was driving, with Mrs. Kauger and the Pisanello woman alongside in the front seat, and Miss Nastoi and the other man in the back seat. She also told Jung that 'when the accident happened she ordered both the driver of her car and the man in the back seat out and to beat it before the police came.' Previously she had 'repeatedly' told Jung that there were only three people in the car, 'herself, Nastoi and Pisanello.' Earlier the defendant's investigations had interviewed Miss Nastoi and Miss Pisanello, but they had refused to give any information at all.

Upon being confronted with this situation, Mr. Jung took the matter up with the District Court judge and requested that a mistrial be declared (a jury had been drawn). The court granted the application and adjourned the trial to a new date. A transcript of the discussion in chambers indicates that the judge verified from Mrs. Kauger directly, in the presence of counsel for all parties, what she had just told Jung, including the admission that her answers to interrogatories and depositions were false insofar as she had there sworn she was the driver of the car. She told the judge that one Esposito was driving the car. Soon thereafter Jung, with leave of court, withdrew as attorney for Mrs. Kauger, and the defendant insurance company promptly disclaimed liability on the policy on grounds of failure of cooperation and fraud by its assured. Another attorney was substituted for Mrs. Kauger, and the subsequent trial of the negligence action resulted in judgments against her of the description noted above.

There was also testimony by the defendant's investigator, Curran, to the effect that he interviewed Mrs. Kauger December 13, 1956 and took a statement from her, which she signed, wherein she said she was driving the car 'and, in addition, described various acts that she did in the operation of the car.' She said she was driving two 'girlfriends' home, Miss Nastoi and Miss Pisanello. He saw her four of five times thereafter, and she never changed the story. Curran also verified Jung's testimony as to the changed version by Mrs. Kauger on the day first set for trial. At that time she told Curran that one Esposito was the driver of the car. He testified that he subsequently interviewed Esposito, but when the court asked the witness what Esposito said, plaintiffs objected, and the objection was sustained.

Plaintiffs submitted no proof in contradiction of the essence of the foregoing testimony. None of the participants in the accident testified.

In granting plaintiffs' motions for judgment at the conclusion of the proofs, the trial judge stated that there was no evidence to establish fraud, merely inconsistent statements by the assured; that there was liability under the policy 'whether it was the assured or anyone with her consent' who was driving; that the judge could not conclude from the proofs who was the actual operator of the car; that there was 'ample time and ample opportunity' for the company to ascertain 'easily' who was the operator; that on the record before him Mrs. Kauger was the driver; and that 'therefore' the motions would be granted.

Without discussing the fraud aspect of the defense, it is entirely clear to us that the court overlooked the defense of failure of cooperation, and that the uncontradicted facts bespoke failure of cooperation by Mrs. Kauger as a matter of law, thereby relieving the insurance company of any further liability on the policy. The motion of defendant for judgment of involuntary dismissal should have been granted on that ground.

It would be supererogation for us here to expatiate on the law pertinent to the subject at hand in view of the thorough and...

To continue reading

Request your trial
7 cases
  • Maryland Cas. Co. v. Coman
    • United States
    • New Hampshire Supreme Court
    • September 10, 1965
    ...particular.' Pearl Assurance Co. Ltd. v. Watts, 58 N.J.Super. 483, 490, 156 A.2d 725, 729. See also, Sutera v. Provident Ins. Co. of N. Y., 67 N.J.Super. 554, 171 A.2d 340; Pearl Assurance Co. Ltd. v. Watts, 69 N.J.Super. 198, 174 A.2d 90; Glens Falls Indemnity Co. v. Keliher, 88 N.H. 253, ......
  • Dougherty v. Hanover Ins. Co.
    • United States
    • New Jersey Superior Court
    • April 30, 1971
    ... ... Ltd. v. Watts, Supra, at 490, 156 A.2d 725; accord, Pearl Assurance Co. Ltd. v. Watts, 69 N.J.Super. 198, 206, 174 A.2d 90 (App.Div.1961); Sutera v. Provident Insurance ... Co., 67 N.J.Super. 554, 171 A.2d 340 (App.Div.1961); Mariani v. Bender, Supra, at 500, 205 A.2d 323. On the issue of ... ...
  • Kraynick v. Nationwide Ins. Co.
    • United States
    • New Jersey Superior Court — Appellate Division
    • January 26, 1962
    ...provided he had been present at the trial, as fairly required by the terms of the policy. Compare Sutera v. Provident Ins. Co. of N.Y., 67 N.J.Super. 554, 563, 171 A.2d 340 (App.Div.1961), where it was held that statements made out of court but offered in court as evidence of the conduct of......
  • Ringwood Associates, Ltd. v. Jack's of Route 23, Inc.
    • United States
    • New Jersey Superior Court — Appellate Division
    • February 13, 1979
    ...Other examples of utterances considered as evidence of conduct and not hearsay statements include Sutera v. Provident Ins. Co. of N.Y., 67 N.J.Super. 554, 563, 171 A.2d 340 (App.Div.1961), certif. den. 36 N.J. 131, 174 A.2d 920 (1961) (statement by insured as evidence of noncooperation); Sc......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT