Universal Indem. Ins. Co. v. Caltagirone

• Decision Date: 31 January 1936
• Docket Number: No. 53.,53.
• Citation: 182 A. 862
• Parties: UNIVERSAL INDEMNITY INS. CO. v. CALTAGIRONE et al.
• Court: New Jersey Supreme Court

182 A. 862

UNIVERSAL INDEMNITY INS. CO.

v. CALTAGIRONE et al.

No. 53.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1936.

Appeal from Court of Chancery.

Suit by the Universal Indemnity Insurance Company against James Caltagirone and others. From a decree dismissing the bill of complaint, complainant appeals.

Affirmed.

Ridley & Flanigan, of Jersey City (John L. Ridley, of Jersey City, of counsel), for appellant.

Feder & Rinzler, of Passaic, for respondent.

WELLS, Judge.

This is an appeal from a decree of the Court of Chancery dismissing a bill of complaint filed by the Universal Indemnity Insurance Company, hereinafter called the Insurance Company, against James Caltagirone, Comfort Bus Lines, hereinafter called Bus Company, and Joseph Nemcth.

Caltagirone suffered injury as the result of a collision between a bus owned by the Bus Company and driven by Joseph Nemeth, and an automobile owned by one Frank Janiec and operated by his son, Edward Janiec. As the result of an action in the New Jersey Supreme Court, Caltagirone secured a judgment in the amount of $2,000 against the four named parties as joint tort-feasors.

At the time of the accident Frank Janiec was the holder of a $5,000 automobile liability policy issued by the Insurance Company. It is undisputed that the policy covered the driver of the car, Edward Janiec. as an "additional assured." After the judgment was recovered, the Insurance Company offered to share the amount thereof equally with the Bus Company, which offer was refused.

An execution was issued against all four defendants and returned unsatisfied.

Thereupon Caltagirone instituted action in the New Jersey Supreme Court against the Insurance Company, based on the policy, to recover the full amount of judgment and costs.

The Insurance Company then filed its bill of complaint, reciting, inter alia, the above facts, and asking that the action of Caltagirone be enjoined, and that he be directed to issue a new execution in the first cause; that the Bus Company and Nemeth be decreed to pay one-half of the judgment; that the complainant be absolved from further liability upon its payment of one-half; and that the Bus Company make a discovery of its assets. From the dismissal of the bill this appeal is taken.

Complainant Insurance Company seeks relief in equity because of certain acts suggested as fraudulent conduct on the part of Caltagirone.

The bill alleges that if said execution had been properly executed, full recovery could have been had thereon as against the Bus Company and Joseph Nemeth; that the Bus Company is the owner of a large garage at Wallington, N. J., and is the owner and operator of a fleet of at least twelve automobile buses.

The bill charges that the sheriff was directed to return the execution unsatisfied as part of an agreement between Caltagirone and the Bus Company to place full responsibility of payment upon the complainant Insurance Company.

The pending action in the Supreme Court is grounded on that provision of the policy now provided for by P.L.1931, c. 194 (N.J.St.Annual 1931, § 99—90e), re-enacting with slight amendment P.L. 1924, c. 153. The pertinent provision is as follows: "No policy of insurance against loss or damage resulting from accident to or injuries suffered by an employee or other person and for which the person insured is liable * * * shall be issued or delivered in this State by any corporation or other insurer authorized to do business in this State, unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages for injury sustained or loss occasioned during the life of such policy, and stating that in case execution against the insured is returned unsatisfied in an action brought by the injured person, or his or her personal representative in case death results from the accident, because of such insolvency or bankruptcy, then an action may be maintained by the injured person, or his or her personal representative, against such corporation under the terms of the policy for the amount of the judgment in the said action not exceeding the amount of the policy."

It is quite apparent that the condition precedent to a legal action of this character is the return unsatisfied of an execution against the insured. The presence of other joint tort-feasors, the treatment of them if they be present, and their financial responsibility, are immaterial. The insurer's liability as to the injured party is determined solely by the liability of the insured. No contest is here made as to the insolvency of the insured Janiecs, a fact of which the unsatisfied execution is prima facie evidence. Horn v. Commonwealth Casualty Co., 105 N.J.Law, 616, 147 A. 483.

Caltagirone need not have sued the Bus Company at all. Newman v. Fowler, 37 N.J.Law, 89; Clark v. Cliffside Park, 110 N.J.Law, 589, 166 A. 309. It follows that he need not look to the Bus Company for satisfaction. Therefore, the issuance of the execution, except against the Janiecs, was superfluous and immaterial as to the rights or liabilities of the Insurance Company, and is...