For reversal -- Chief Justice Weintraub, and Justices Heher, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
The plaintiff appealed to the Appellate Division of the Superior Court from a judgment which the Hudson County District Court had entered in favor of the defendants. We granted certification under R.R. 1:10-1(a).
The plaintiff, a New York corporation, is an insurance broker and licensed to do business in New Jersey. The defendants, James Rickard and Madlyn Rickard, husband and wife, owned and operated a fleet of nine taxicabs in Jersey City. On April 11, 1957, because of adverse accident experiences, their policy of liability insurance was cancelled, effective April 16, 1957. Because of statutory requirements the defendants were compelled to obtain a new liability policy prior to the latter date or suspend their operations. Faced with this situation the defendants communicated with the plaintiff through its president, Ostertag. On April 11 it was agreed in a telephone conversation between Ostertag and the defendant James Rickard that the plaintiff would place the necessary insurance for the defendants with an insurance company on an assigned risk basis within the five-day period, provided that the defendants pay the plaintiff a service charge of 10% of the premium on the policy in addition to any commission that would be paid to the plaintiff by the insurance company. Later that day the above agreement was reduced to writing and signed by James Rickard. The plaintiff was successful in placing the insurance through the New Jersey Assigned Risk Bureau in New York City, and within the five-day period a policy was issued to the defendants by the Lincoln Mutual Casualty Insurance Company. Later the policy was cancelled by Lincoln for the defendants' failure to make payment of the premium. The defendants did not pay the plaintiff the 10% service charge and the plaintiff brought the present action which is for $837.05, representing 10% of the total premium for the insurance coverage.
At the trial the defendants contended that they had agreed with an agent of the plaintiff that the premium for the
new policy would not exceed a 25% increase over the premium of their cancelled policy, whereas the policy obtained from Lincoln required a 35% increase. The trial judge found as a fact that the plaintiff had not so agreed. This determination is not an issue on this appeal. The trial judge found that "the written agreement to pay the service charge of 10% is in fact the agreement of the parties," but held that the agreement was unenforceable under N.J.S.A. 17:29 A -15 (L. 1944, c. 27, § 15).
The principal issue on this appeal is whether the above statutory provision precludes a broker from receiving a service charge from the insured in addition to a commission from the insurer. The trial judge was of the view that "the rating System" and "rate making" process includes the amount that a broker becomes entitled to upon placement of an insurance policy, and that as the rating system approved by the Commissioner of Banking and Insurance does not include a service charge, such a charge cannot be made.
In order to determine the applicability of N.J.S.A. 17:29 A -15 to the present question it is necessary to consider the role that that section plays in the overall act regulating the making and applying of insurance rates. L. 1944, c. 27; N.J.S.A. 17:29 A -1 to 28. The act is a comprehensive statutory scheme designed to regulate and standardize the rates which insurance companies may charge for various forms of insurance coverage. The administrative control necessary to further the statutory objective is vested in the Commissioner of Banking and Insurance. This control is made operative by the Commissioner's authority to determine whether insurance rates are reasonable and adequate, and not unfairly discriminatory. In making such determination the Commissioner is directed to consider
"* * * the factors applied by insurers and rating organizations generally in determining the bases for rates; the financial condition of the insurer; the method of operation of such insurer; the loss experience of the insurer, past and prospective, including where pertinent, the conflagration and catastrophe hazards, if any, both within
and without this State; to all factors reasonably related to the kind of insurance involved; to a reasonable profit for the insurer, and, in the case of participating insurers, to policyholders' dividends. * * *" N.J.S.A. 19:29 A -11.
Rate-making may be engaged in by rating organizations which consist of two or more insurers engaged in the business of rate-making, N.J.S.A. 17:29 A -2; N.J.S.A. 17:29 A -1(f), or by individual insurers, N.J.S.A. 17:29 A -4. Rate-making is defined in N.J.S.A. 17:29 A -1(c) as follows:
"'Rate-making' means the examination and analysis of every factor and influence related to and bearing upon the hazard and risk made the subject of insurance; the collection and collation of such factors and influences into rating systems; ...