This matter is opened on cross-motions for summary judgment. For either party to prevail the respective application must palpably show the existence of no genuine issue as to any material fact and that such party is entitled to judgment as a matter of law. Both parties presume to support this right on briefs, supplemented by oral argument.
The question to be determined sub judice is, whether or not, under the insurance policy here involved, plaintiffs are entitled to reimbursement of monies paid for the satisfaction of a judgment recovered against plaintiffs, together with accumulated expenses, interest and costs. The following
resume, of which there is no substantial dispute, is essential to fully understand the contra applications.
Plaintiffs herein, George D. Malanga, Alfred L. Malanga and Louis J. Malanga, t/a Mal-Bros. Contracting Company (admittedly a partnership), had issued to it by defendant herein a comprehensive contract of insurance by which the insurer, among other things, agreed: "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, * * * sustained by any person and caused by accident." And also, "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident." In addition, the said policy provided that: "assault and battery shall be deemed an accident unless committed by or at the direction of the insured." Also, it was provided that the insurer shall "defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; * * *." (Italics added)
While the policy of insurance was in effect, and on March 19, 1955, an incident arose wherein one John Thompson was involved, which resulted in litigation. Thompson filed an original complaint in the Superior Court of New Jersey, Law Division, Middlesex County, against George D. Malanga and Alfred Malanga, individually and as partners t/a Mal-Bros. Contracting Company; Thomas Gallo, Mario Gallo, Gene Gallo and Vincent Gallo, individually and as partners t/a Gallo Contracting Company. That complaint was in five counts; the first count was against the Gallos, but was not prosecuted. The remaining counts set forth claims against the Malangas: the second count for reasonable value of the use of land; the third count for trespass upon land; the fourth count for personal injuries and damages by reason of willful assault, and a fifth count for malice. It was alleged in the pleading that during the course of business the named defendants, individually and
as partners, operated a certain bulldozer in a manner which caused injuries and damages to Thompson.
Following service the complaint was turned over to the insurer for attention under the terms of the policy. Upon examination of that pleading the insurer questioned the fact of insurance coverage, and observing the lack of any, returned the pleading to the insured, who were advised to procure an attorney to protect their interest. Thereupon, in a manner of acquiescence, the insured engaged personal counsel who filed formal answer and otherwise proceeded to defend.
Thereafter, Thompson filed an amended complaint, similarly as theretofore set forth, except that in a sixth count there was incorporated a claim for damages which was grounded on negligence. The amended pleading was forwarded to the insurer for attention and acknowledgment was confirmed by letter. Because of the added count, the insurer willingly assumed to defend "as long as the counts that do or may fall within the purview of your policy remain in existence." That acknowledgment was accompanied with forms of non-waiver agreements and a request for execution, but this was not done. The insurer engaged substituted counsel who filed formal answer to the amended complaint and undertook a full defense.
Certain preliminary motions were made and denied which resulted in that case being moved and tried before the court and jury in the aforesaid venue. At the close of the plaintiff's case there was a motion to strike the sixth count on the ground there was no proof of negligence, which was reserved. At the end of the entire case the aforesaid motion to strike was renewed and granted. Counts two and three were abandoned. This resulted in the submission to the jury the factual question of liability as contained in the fourth and fifth counts. In that respect the trial court put to the jury for determination the questions of Alfred L. Malanga's ...