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Travelers Insurance Co. v. Hitchner

Decided: April 30, 1960.

THE TRAVELERS INSURANCE COMPANY, A CORPORATION OF THE STATE OF CONNECTICUT, PLAINTIFF,
v.
J. RUSSELL HITCHNER, T/A RUSS' ROLLER RINK, DEFENDANT



Civil action. On motion for judgment on the pleadings.

Cafiero, J.s.c.

Cafiero

Plaintiff moves for a judgment on the pleadings. Defendant agrees that the matter shall be submitted on briefs without oral argument.

The action is one based upon a liability policy issued by the plaintiff with limits of liability of $5,000 for each person and $10,000 for each accident. To the policy was attached a $500 deductible bodily injury clause. The complaint alleges that on March 22, 1956, during the term of the policy, a civil action was instituted against the defendant by a patron of the Roller Rink for bodily injuries sustained due to defendant's negligence, and seeking $20,000 as damages. Plaintiff filed an answer in behalf of the insured, but before trial and after investigation, settled the claim for $1,000 and took a release in its name and in the name of Russell

Hitchner, t/a Russ' Roller Rink. Demand was then made of the defendant for contribution of the sum of $500, in accord with the terms of the policy. Defendant has refused to pay this sum and plaintiff seeks $500, with interest from January 31, 1959 and costs.

Defendant admits plaintiff made the settlement, but contends that it was made against his direct orders and wishes since he believed that an adequate defense could be presented in defense of the suit. He denies that plaintiff is entitled to contribution from him under the terms of the policy and contends that a proper and fair construction of the policy is that the company has an absolute right to settle so much of the claim for which it may be liable to the insured, but it cannot settle or compromise the first $500 of any claim without his consent.

The court may only render judgment on the pleadings when the pleading, alleged to state no defense, are liberally construed in favor of the pleader and are clearly and palpably insufficient in a legal sense. Kelly v. Hoffman , 137 N.J.L. 695, 5 A.L.R. 2 d 951 (E. & A. 1948); Evangelista v. Public Service Coordinated Transport , 7 N.J. Super. 164 (App. Div. 1950); Baldwin Const. Co. v. Essex County Board of Taxation , 24 N.J. Super. 252 (Law Div. 1952); Heljon Management Corp. v. Di Leo , 55 N.J. Super. 306 (App. Div. 1959). With this standard in mind, it is concluded that the motion should be granted.

The printed policy contains the standard provision:

"II -- Defense, Settlement, Supplementary Payments -- with respect to such insurance as is afforded by this policy for bodily injury liability * * * the company shall: (a) defend any suit against the insured alleging such injury * * * and seeking damages on account thereof * * * but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient."

The deductible bodily injury liability endorsement attached to the policy provides as follows:

"Such insurance as is afforded by the policy applies, subject to the ...


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