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Nuzzi v. United States Casualty Co.

Decided: October 17, 1938.

SALVATORA NUZZI AND VINCENZO NUZZI, HER HUSBAND, AND VINCENZO NUZZI, IN HIS OWN RIGHT, PLAINTIFFS-RESPONDENTS,
v.
UNITED STATES CASUALTY COMPANY, A CORPORATION OF THE STATE OF NEW YORK, DEFENDANT-APPELLANT; FRANCESCO PIARULLI, PLAINTIFF-RESPONDENT, V. UNITED STATES CASUALTY COMPANY, A CORPORATION OF THE STATE OF NEW YORK, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the plaintiffs-respondents, Salvatora Nuzzi and Vincenzo Nuzzi, Samuel P. Orlando.

For the plaintiff-respondent, Francesco Piarulli, Albert S. Woodruff.

For the defendant-appellant, Walter S. Keown, George D. Rothermel and Merritt Lane.

Brogan

The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. These are appeals from two summary judgments entered in the Supreme Court. Judge Palmer heard the case without a jury and his disposition of the defenses in each case amounted to a striking out of the answer and the separate defenses. Judgments were entered against the defendant insurance company for reduced amounts within the coverage of the insurance contract. A review of the facts is essential.

The plaintiffs recovered judgments in the Camden County Common Pleas Court on October 23d, 1935, against the Diamond Fuel Company and its driver, Albert Mosely, for the

following sums: Salvatora Nuzzi, $16,780; Vincenzo Nuzzi, her husband, $17,434, and Francesco Piarulli, $1,595. These judgments arose out of personal injuries suffered by the Nuzzis and personal injury and property damage by Piarulli. Mr. and Mrs. Nuzzi were passengers in Piarulli's car when it collided with an automobile truck of the Diamond Fuel Compay. The accident happened on September 28th, 1934, and on that day the truck of Diamond Fuel Company had been included within the coverage of a policy of insurance by a rider issued by one Alex. M. Malamut. The insurer, United States Casualty Company, saw fit to disclaim liability on the contract of insurance and refused to defend the assured or the driver in the law action. Pending the trial of the negligence action in the Pleas, the United States Casualty Company filed a bill in the Court of Chancery seeking an annulment of the policy on the ground that the rider which was issued on September 28th, 1934, the date of the accident, and which included the automobile truck involved in the accident, was procured by fraud, in that Malamut, a subagent of the insurance company, and who was at the same time the president (although inactive) of the Diamond Fuel Company, had the rider issued after he learned that the accident had happened. This proceeding in Chancery, to cancel the policy, resulted in a decree, dated January 11th, 1937, dismissing the bill of complaint. Vice-Chancellor Davis, who heard the case, held that the alleged fraud was not proved. The decree was affirmed by this court (United States Casualty Co. v. Diamond Fuel Co., 122 N.J. Eq. 369). The plaintiffs, holders of the judgments, unable to have same satisfied by the assured, brought suit thereon in the Supreme Court against the insurer, the defendant in this cause.

The complaints allege the entry of the judgments mentioned, the return of execution against the tortfeasors unsatisfied, and that the defendant's contract of insurance was valid and in full force and effect.

The answer of the insurance company consisted of a general denial of liability; in addition, four separate defenses

were pleaded -- (1) that Malamut had no authority to issue a valid policy, rider or endorsement binding upon the defendant; (2) that the insurance policy was invalid because it carried the endorsement of Malamut, who was at the time president of the assured, Diamond Fuel Company, which affiliation was altogether unknown to the insurance company until after the loss.

The third separate defense -- failure to co-operate in the trial of the original suit in the Common Pleas -- was abandoned, and the fourth -- that the insurance company tendered the return of the premium paid for the insurance to the Diamond Fuel Company -- was not argued and is considered as abandoned.

A special defense to the second and fourth counts of the complaint was interposed, viz., that the defendant's limit of liability as contained in the said policy is stated to be the sum of $10,000 for the injury or death of one person and $20,000 for the injury or death of more than one person arising out of a single accident; that the judgment for Mrs. Nuzzi exceeds the limit of liability as stated in the policy, to wit, $10,000; and that the claim of Vincenzo Nuzzi, in the sum of $17,434.20, includes damages not only for his bodily injuries, loss of earnings and personal incidental expenses, but also included the hospital and medical expenses of his wife, Salvatora, and loss of services and loss ...


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