Gaulkin, J.c.c. (temporarily assigned).
The question here is whether this is a proper case for declaratory judgment. That is a question of paramount importance in every declaratory judgment action for, as Judge Clapp warned in Utility Blade & Razor Co. v. Donovan , 33 N.J. Super. 566, 571 (App. Div. 1955), "an unwarranted use of the declaratory action, may turn a valuable remedy into a nuisance."
In January 1952 plaintiff Finley was driving George Frantz' Cadillac car in Florida when the car overturned and Frantz was killed.
There had been issued to Finley, a resident of New Jersey, by the Atlantic Casualty Insurance Company, hereafter called
"Atlantic," a $50,000 liability policy on Finley's own Plymouth automobile, but the policy provided that the insurance applied as well to any other automobiles driven by Finley. However, the policy provided that as to such other automobiles the insurance "shall be excess insurance over any other valid and collectible insurance available to" Finley.
Frantz, on the other hand, was a resident of Florida. The Factory Mutual Liability Insurance Company, hereafter called "Factory," had issued to him a $50,000 liability policy covering the Cadillac. This policy contained the usual "omnibus clause" extending the coverage to any person driving the automobile with Frantz' permission.
In February 1953 Barbara Frantz, the deceased's widow, started suit in Florida against Finley and "The McBee Company," a corporation hereafter called "McBee," for $250,000. Mrs. Frantz alleged that the accident was due to Finley's negligence, and said:
"2. That the defendant, Robert Birch Finley, was at the time and place hereinabove alleged employed by the defendant, McBee Company, * * * and was then and there acting within the course of his employment, and the said George Albert Frantz, was at said time and place the servant and employee of the defendant, McBee Company, * * * and was then and there riding in said automobile within the course of his employment."
Finley called upon both Atlantic and Factory to defend him. Factory refused on the ground that clause III b of its policy excludes:
"* * * any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or ...