Unsatisfied Claim and Judgment Fund Bd. v. Concord Ins. Co.

• Citation: 264 A.2d 757,110 N.J.Super. 191
• Parties: UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, Plaintiff, v. CONCORD INSURANCE CO., Lenox Finance Co., Ethel Oderman and Calvin Joyner, Defendants.
• Decision Date: 14 April 1970
• Court: Superior Court of New Jersey

Page 191

110 N.J.Super. 191

264 A.2d 757

UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, Plaintiff, v. CONCORD INSURANCE CO., Lenox Finance Co., Ethel Oderman and Calvin Joyner, Defendants.

Superior Court of New Jersey,

Law Division.

April 14, 1970.

Martin L. Sisselman, Jersey City, for plaintiff (James & Addas, Jersey City, attorneys).

Sheldon A. Siegel, Newark, for defendant Concord Ins. Co. (Goldberger, Siegel & Finn, Newark, attorneys).

Murray G. Simon, Newark, for defendants, Lenox Finance Co., Ethel Oderman and Calvin Joyner (Simon, Denstman & Noonan, Newark, attorneys).

TUMULTY, J.S.C.

This action comes before the court on a motion by the defendant Concord Insurance Company (Concord) for an order striking the complaint for reasons that will be set forth at length below. In order to determine the merits of this motion, it is necessary to set forth the facts preceding it. The question of law herein appears novel.

On or about December 24, 1968 Ethel Oderman was involved in an accident with Calvin Joyner. Prior to the accident Joyner had taken out a liability insurance policy with Concord for one year, effective January 19, 1968. The policy was financed by the Lenox Finance Company (Lenox), paid by it to Concord on behalf of Joyner. Sometime before the accident the premiums were not received by Concord and the policy was cancelled as of December 16, 1968, six days before the accident.

Mrs. Oderman subsequently brought suit in the county district court for damages sustained. When Joyner asked his carrier, Concord, to defend, it refused, claiming that the cancellation relieved it of this obligation. Mrs. Oderman, upon learning of the disclaimer, filed a notice of Intention to make a claim with the Unsatisfied Claim and Judgment Fund Board (Fund), pursuant to N.J.S.A. 39:6--65. As a result, the present action was instituted by the Fund in the Superior Court, Law Division, for a declaratory judgment to determine whether it or Concord was the proper party to defend Joyner in the county district court suit. The Fund also brought a second count against Lenox for negligence in processing the finance payments, and for indemnification of any adverse judgment it might suffer as the result of such negligence. This count charges that Joyner made each monthly payment to Lenox as it came due, and only because of Lenox's failure to forward it to Concord was there a lapse in the payment of the necessary premiums.

The motion before the court is in response to the declaratory judgment action of the plaintiff Fund. Defendant Concord is seeking to strike the complaint on the following grounds:

A. The Fund has no standing to bring this type of action;

B. It has other recourse, namely, to deny payment after a judgment is rendered, on the grounds that the judgment debtor was insured at the time of the accident;

C. Only the alleged insured or a qualifying third-party beneficiary can bring this type of action, and

D. Even if the Fund could properly seek such relief, the relief sought is the proper subject matter of the Chancery and not the Law Division.

The court is compelled to disagree with these contentions for various reasons. It is of the opinion that the best interests of justice will be served by the determination of this issue prior to, instead of after, the county district court matter is heard.

The issues raised will be more clearly understood if discussed individually rather than collectively. The court's attention is initially directed to the issue of jurisdiction.

There are two separate counts in the complaint before us. While the count we are basically concerned with is founded in equity, the other count is clearly founded in law. A strict reading of R. 4:3--1(a)(1) would indicate that if the court determines that the principal relief sought is equitable, the action should be brought in the Chancery Division.

However, our State Constitution (1947), Art. VI, § III, par. 4, gives to each Division of the Superior Court the power to exercise the functions of the other. It is well accepted that jurisdiction over one issue allows the court to decide as to all issues. A strict application of the rule is not necessary, and the fact that legal relief is also being sought makes the question of jurisdiction moot for our purposes. See Curley v. Curley, 37 N.J.Super. 351, 117 A.2d 407 (App.Div.1955); Hintenberger v. Garfield, 49 N.J.Super. 175, 139 A.2d 328 (Law Div. 1958) aff'd 52 N.J.Super. 526, 146 A.2d 123 (App.Div.1958). It is noteworthy that in LeFelt v. Nasarow, 71 N.J.Super. 538, 177 A.2d 315 (Law Div. 1962), aff'd 76 N.J.Super. 576, 185 A.2d 217 (App.Div.1962), certif. den. LeFelt v. Aetna Ins. Co., 39 N.J. 86, 187 A.2d 600 (1963), the very issue of declaratory relief was determined by the Appellate Division on review from the Law Division.

The next issue is whether the existence of a statutory remedy after judgment precludes the Fund from seeking equitable relief at this time. The court finds it does not. R. 4:42--3 states that 'A judgment for declaratory relief, if appropriate, is not precluded by the existence of another appropriate remedy.' See also, Vonins, Inc. v. Raff, 101 N.J.Super. 172, 243 A.2d 836 (App.Div.1968). Though the Fund has the right to deny payment after a judgment is entered, if declaratory relief is appropriate it can also avail itself of this remedy. The question is then reduced to one of 'appropriateness.'

A justiciable controversy between adverse parties must exist to warrant maintenance of a declaratory judgment action. N.J.S.A. 2A:16--50 et seq., 51, 53; Union Cty. Bd. of Chosen Freeholders v. Union Cty. Park Comm., 77 N.J.Super. 425, 186 A.2d 703 (Law Div. 1962), rev'd on other grounds 41 N.J. 333, 196 A.2d 781 (1964). Such a controversy exists where the court is asked to determine an insurer's liability. See Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941). The requirement of a real controversy, as opposed to one which is merely hypothetical or speculative, is also satisfied by the issues sought to be adjudicated herein. N.J.S.A. 2A:16--55; In re Badenhop, 61 N.J.Super. 526, 161 A.2d 318 (Cty.Ct.1960). A further requirement is that the declaration sought helps to terminate the controversy between the parties. State Farm Mut. Automobile Ins. Co. v. Semple, 407 Pa. 572, 180 A.2d 925 (Sup.Ct. 1962). The Fund is obviously seeking such a result by bringing the action at this time, hoping to avoid the necessity of added litigation on the same issues after the county district court matter is heard.

The court's attention now focuses upon the major issue pertaining to the motion before it. This issue is basically twofold. First, whether the Fund is an 'interested party' for the purpose of bringing a declaratory action on an insurance contract? Secondly, whether the Fund has standing and interest for such an action under the statute creating it, N.J.S.A. 39:6--65 et seq.? This statute provides that the Fund is not obligated to make any payment until after an unsatisfied judgment is entered against an uninsured motorist. In the court's opinion, neither theory precludes the Fund from seeking declaratory relief.

Under the first theory defendant Concord contends that the Fund is not a proper party for the institution of such an action. The court cannot agree. In State v. Murtes, 232 La. 486, 94 So.2d 446, 447 (Sup.Ct.1957), the word 'interested' is defined, among other things, as being 'liable to be affected or prejudiced.' 'Interest' generally means a concern which is more than mere curiosity, or academic or sentimental desire. State ex rel. Farmers Mut. Automobile Ins. Co. v. Weber, 384 Mo. 1159, 273 S.W.2d 318, 321 (Sup.Ct.1954). There is no doubt the Fund will be affected or...