Viducich v. Greater New York Mut. Ins. Co., No. A--87

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtGAULKIN
Citation80 N.J.Super. 15,192 A.2d 596
PartiesJohn S. VIDUCICH, Plaintiff-Respondent, v. GREATER NEW YORK MUTUAL INSURANCE COMPANY, an insurance corporation, Defendant-Appellant.
Docket NumberNo. A--87
Decision Date01 July 1963

Page 15

80 N.J.Super. 15
192 A.2d 596
John S. VIDUCICH, Plaintiff-Respondent,
v.
GREATER NEW YORK MUTUAL INSURANCE COMPANY, an insurance
corporation, Defendant-Appellant.
No. A--87.
Superior Court of New Jersey
Appellate Division.
Argued June 10, 1963.
Decided July 1, 1963.

Page 16

[192 A.2d 597] Jerome S. Lieb, East Orange, for appellant (Harkavy & Lieb, East Orange, attorneys).

Arnold M. Stein, Denville, for respondent (Stein & Einhorn, Denville, attorneys).

Before Judges CONFORD, GAULKIN and KILKENNY.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Defendant appeals by our leave from the denial of its motion for summary judgment.

The question presented is whether the pleadings, depositions and affidavits which were before the trial judge show 'palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment * * * as a matter of law.' R.R. 4:58--3. We think that they do, and that the summary judgment should have been granted.

Plaintiff's complaint alleges that defendant issued workmen's compensation and public liability insurance policies to plaintiff's employer, Code Corporation (Code), under the terms of which 'defendant reserved the right to inspect the premises, machinery, apparatus and other equipment' of Code

Page 17

and the right 'to make recommendations and to provide supervision * * * for the correction, removal or avoidance of any defects or potential defects or potential industrial hazards * * * and to prescribe and enforce rules and regulations' relating thereto; that 'one of the reasons' defendant reserved these rights 'was to make certain that the premises, machinery, apparatus and other equipment were reasonably safe, and presented no unreasonable risk of harm to employees of Code Corporation'; that 'on at least one occasion prior to November 18, 1959' defendant inspected the machinery 'pursuant to the terms' of the policies, but '(s)uch inspection or inspections were performed in a negligent and careless manner, and in utter disregard of the fact that there existed upon the premises of Code Corporation a certain wood-shaping machine which was maintained in a dangerous manner, and which had improper equipment, faulty or no safety devices, and * * * was a dangerous instrumentality which presented an unreasonable risk of harm to employees of Code Corporation * * *.' Plaintiff alleged that as a result of this he was injured on November 18, 1959 while operating said machine. Another count of the complaint repeats the foregoing allegations and adds the charge that defendant 'negligently and carelessly selected, hired and retained incompetent * * * persons * * * to make such inspection or inspections * * *.'

Defendant's answer asserts:

'The right of inspection reserved by the Defendant in its policies of insurance is a privilege to the Defendant in connection with its determination of the risk to be assumed and the premium to be charged for same. Such reservation imposed no duty upon the Defendant to its assured, Plaintiff or anyone else and Defendant did not assume such liability or duty.'

The workmen's compensation policy provides:

'4. Inspection and Audit.

The company and any rating authority having jurisdiction by law shall each be permitted to inspect the work places, [192 A.2d 598] machinery and

Page 18

equipment covered by this policy and to examine and audit the insured's books, vouchers, contracts, ducoments and records of any and every kind at any reasonable time during the policy period and any extension thereof and within three years after termination of this policy, as far as they relate to the premium bases or the subject matter of this insurance.'

The liability policy provides:

'2. Inspection and Audit.

The company shall be permitted to inspect the insured premises, operations and elevators and to examine and audit the insured's books and records at any time during the policy period and any extension thereof and within three years after the final termination of this policy, as far as they relate to the premium bases or the subject matter of this insurance.'

The affidavits and depositions establish without question that Code was a new venture, incorporated in June 1959 to manufacture guitars. It applied to defendant for insurance and defendant causes an inspection to be made of Code's premises and machinery on July 28 by Underwriters Reporting Service and on July 29 by Underwriters K. Bureau. Defendant's Mr. Schwarz testified: 'This Underwriting and Rating Report--Since the Firm, or the Code Corporation, being a new venture, had not been inspected by the appropriate rating authorities, it was incumbent upon the Insurance Carrier to inspect for rating and classification in order to determine its premium remuneration.' The reports of these inspections were submitted to defendant, and disclosed no dangers. Code had no knowledge of the contents of the report.

The policies were countersigned and issued August 19, 1959, but they covered retroactively from July 17, 1959. Plaintiff contends, and it is not denied, that the risk must have been covered on binder prior to the issuance of the policies.

To support his cause of action against defendant, plaintiff must show (1) that defendant contracted to make inspections and report the result to Code, or (2) undertook to do so gratuitously under circumstances which created a duty upon defendant,

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owed to Code or its employees, to do it with due care, and (3) in either case was negligent, such negligence resulting proximately in the injury. Van Winkle v. American Steam Boiler Co., 52 N.J.L. 240, 19 A. 472 (Sup.Ct.1890); Nelson v. Union Wire Rope Corp., 39 Ill.App.2d 73, 187 N.E.2d 425 (App.Ct.1963); Restatement, Torts § 325; Annotation 6 A.L.R.2d 284 (1949).

Defendant did not contract to make inspections or report the results to Code. Indeed, plaintiff's complaint does...

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11 practice notes
  • Arcell v. Ashland Chemical Co., Inc.
    • United States
    • Superior Court of New Jersey
    • July 14, 1977
    ...88 N.J.Super. 421, 212 A.2d 664 (App.Div.1965), aff'd o.b. 46 N.J. 398, 217 A.2d 325 (1966), and Viducich v. Greater N.Y. Mut. Ins. Co., 80 N.J.Super. 15, 192 A.2d 596 (App.Div.1963), certif. den. 41 N.J. 129, 195 A.2d 21 (1963). I find this position to be without merit. American Can's liab......
  • State v. Morris, Nos. 2218 and 2253
    • United States
    • Supreme Court of Alaska (US)
    • October 29, 1976
    ...289 (5th Cir. 1973); Evans v. Liberty Mutual Ins. Co., 398 F.2d 665, 667 (3rd Cir. 1968); Viducich v. Greater New York Mutual Ins. Co., 80 N.J.Super. 15, 192 A.2d 596 (1963); DeJesus v. Liberty Mutual Ins. Co., 423 Pa. 198, 223 A.2d 849 (1966). These cases hold that while the insurer may be......
  • Smith v. Allendale Mut. Ins. Co., Docket Nos. 60645 and 62465
    • United States
    • Supreme Court of Michigan
    • March 30, 1981
    ...of information regarding the inspections by the insurer to the insured. See, e. g., Viducich v. Greater New York Mutual Ins. Co., 80 N.J.Super. 15, 192 A.2d 596 (2) The purpose of the inspection. This factor also encompasses consideration of the duty element, especially as reflected in the ......
  • Nelson v. Union Wire Rope Corp., No. 37795
    • United States
    • Supreme Court of Illinois
    • March 18, 1964
    ...F. 617.) As is shown by defendant's own citation of authority, viz., Viducich v. Greater New York Mutual Insurance Co., 80 N.J.Super, 15, 192 A.2d 596, plaintiffs, to support their actions, had only to show (1) that defendant undertook to make safety inspections and to render safety enginee......
  • Request a trial to view additional results
11 cases
  • Arcell v. Ashland Chemical Co., Inc.
    • United States
    • Superior Court of New Jersey
    • July 14, 1977
    ...88 N.J.Super. 421, 212 A.2d 664 (App.Div.1965), aff'd o.b. 46 N.J. 398, 217 A.2d 325 (1966), and Viducich v. Greater N.Y. Mut. Ins. Co., 80 N.J.Super. 15, 192 A.2d 596 (App.Div.1963), certif. den. 41 N.J. 129, 195 A.2d 21 (1963). I find this position to be without merit. American Can's liab......
  • State v. Morris, Nos. 2218 and 2253
    • United States
    • Supreme Court of Alaska (US)
    • October 29, 1976
    ...289 (5th Cir. 1973); Evans v. Liberty Mutual Ins. Co., 398 F.2d 665, 667 (3rd Cir. 1968); Viducich v. Greater New York Mutual Ins. Co., 80 N.J.Super. 15, 192 A.2d 596 (1963); DeJesus v. Liberty Mutual Ins. Co., 423 Pa. 198, 223 A.2d 849 (1966). These cases hold that while the insurer may be......
  • Smith v. Allendale Mut. Ins. Co., Docket Nos. 60645 and 62465
    • United States
    • Supreme Court of Michigan
    • March 30, 1981
    ...of information regarding the inspections by the insurer to the insured. See, e. g., Viducich v. Greater New York Mutual Ins. Co., 80 N.J.Super. 15, 192 A.2d 596 (2) The purpose of the inspection. This factor also encompasses consideration of the duty element, especially as reflected in the ......
  • Nelson v. Union Wire Rope Corp., No. 37795
    • United States
    • Supreme Court of Illinois
    • March 18, 1964
    ...F. 617.) As is shown by defendant's own citation of authority, viz., Viducich v. Greater New York Mutual Insurance Co., 80 N.J.Super, 15, 192 A.2d 596, plaintiffs, to support their actions, had only to show (1) that defendant undertook to make safety inspections and to render safety enginee......
  • Request a trial to view additional results

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