United Roofing Co. v. Indep. Bonding & Cas. Ins. Co.

• Decision Date: 20 May 1931
• Docket Number: No. 52.,52.
• Citation: 155 A. 140
• Parties: UNITED ROOFING CO. v. INDEPENDENT BONDING & CASUALTY INS. CO.
• Court: New Jersey Supreme Court

155 A. 140

UNITED ROOFING CO.

v. INDEPENDENT BONDING & CASUALTY INS. CO.

No. 52.

Supreme Court of New Jersey.

May 20, 1931.

Suit by the United Roofing Company against the Independent Bonding & Casualty Insurance Company. On defendant's rule to show cause why verdict in favor of plaintiff should not be set aside and a new trial granted.

Rule discharged.

Argued October term, 1930, before GUMMERE, C. J., and TRENCHARD and LLOYD, JJ.

Hudspeth & Harris, of Jersey City, for the rule.

Winne & Banta, of Haekensaek, opposed.

PER CURIAM.

In this case a verdict was entered in favor of the plaintiff and against the defendant for $9,095.58, as a result of a trial before Che judge, sitting without a jury, at the Bergen circuit, the judge having made findings of fact.

The suit was upon a policy of insurance issued by the defendant company to the plaintiff insuring the plaintiff (among others) against the risks commonly known as liability damage, property damage, and collision damage.

The defendant holds this rule to show cause why the verdict entered herein should not be set aside and a new trial granted, reserving to the defendant the exceptions taken at the trial.

The trial court found as a fact that the defendant breached the contract of insurance, and awarded damages in the sum of $9,095.58 in favor of the plaintiff and against the defendant as the natural and probable consequences of the breach of the contract, ami we think this finding was correct.

The pleadings disclose that, on December 8, 1927, a Buick coupe was being driven in the course of the business of the plaintiff corporation in Teaneck, N. J., by Linwood E. Clarke, its general manager, and that it collided with a Reo truck owned by one Olsen and driven by one Rasmussen, in which another Olsen was a passenger; and that, as a result of this accident, the United Roofing Company was sued, and verdicts were rendered against it, and the plaintiff herein paid these judgments, and in this suit claims reimbursement.

The pleadings further allege that the Buick coupe was totally destroyed in the collision, and the plaintiff claims reimbursement for the value of the car.

The action of the plaintiff herein also includes a claim for reimbursement for legal expenses covering the engagement of attorneys, etc., in the trials of the suits commenced by Olsen and Rasmussen.

There is an allegation in each count of the complaint in the present suit that the defendant denied liability under the policy issued by it and refused to defend the suits against the plaintiff.

All of the counts predicate the right of recovery on the refusal of the defendant herein to defend the suits by reason of its alleged denial of liability on the policy of insurance.

The defendant in its answer, after making a general denial of the allegations of the complaint, asserts several separate defenses, the first of which seems now to have been abandoned; the second charges that the plaintiff caused a breach of the policy of insurance, in that it did not render all possible co-operation within its power to the defendant, and that it voluntarily assumed liability and interfered with the legal proceedings in the suits brought against it, and that it defended the suits without the consent of the defendant; the third alleges that the plaintiff did not have an insurable interest in the said Buick automobile in that it did not own the same.

Now the policy of insurance sued on was issued by the defendant to United Roofing Company, the plaintiff. In its insuring agreement defendant agreed as follows:

"(a) 1. To insure the assured against loss by reason of the liability imposed by law upon the assured for damages on account of bodily injuries, including death. At any time resulting therefrom, to any person or persons, accidentally suffered or alleged to have been suffered while this policy is in force by reason of the ownership, maintenance or use within the limits of the United States of America (exclusive of Alaska, the Philippines, and Hawaiian Islands and other 'possessions') or Canada of any automobile described in the declaration.

"2. To defend in the name and on behalf of the assured, any suits, even if groundless, brought against the assured to recover damages on account of such accidents as are covered under this policy.

"3. To pay, irrespective of the limits of liability hereinafter mentioned, all costs taxed against the assured in any legal proceeding defended by the company, all interest accruing after entry of judgment upon such part thereof as shall not be in excess of said limits of liability and the expense incurred by the assured for such immediate medical and surgical relief as is imperative at the time of the accident, together with all expenses incurred by the company for investigation, adjustment and defense."

The policy further provides, in addition to the protection agreed to be afforded to the United Rooting Company as the "named assured," the following protection for what it terms "additional assureds," as follows:

"4. Additional Assureds. The insurance provided by this policy is so extended as to be available, in the same manner and under the same provisions as it is available to the named assured, to any person or persons while riding in or legally operating any of the automobiles described in the Declaration or to any person, Arm or corporation legally responsible for the operation thereof, provided such use or...