Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.
The present third-party action began after Shirley G. Portella and her husband instituted suit against Sonnenberg for injuries sustained when Mrs. Portella fell into an open elevator shaft in Sonnenberg's furniture store in Camden.
By its terms the bodily injury liability policy issued by Travelers covering the store did not cover accidents arising out of the use of elevators. But Sonnenberg filed a third-party complaint against Travelers and Maginnis, the local agent who issued the policy, alleging that complete coverage with no exceptions had been requested, but that through the negligence or mistake of Maginnis or Travelers, or both, such coverage was not provided. The insured sought damages against both Travelers and Maginnis and reformation of the policy. Meanwhile the Portella action was held in abeyance pending the outcome of this litigation.
The trial court rendered a decision in favor of Sonnenberg against Maginnis alone, and denied reformation, but the case was remanded by us to the trial court for necessary findings of fact and conclusions of law. After additional testimony was taken on remand the court concluded that
both Travelers and Maginnis were liable to Sonnenberg, and that reformation be granted. Both third-party defendants bring the present appeal.
The judge below found that one Victor N. Baron, a cousin of Sonnenberg and then a licensed insurance broker, originally told Maginnis about Sonnenberg's furniture store and suggested that Maginnis might be able to write a liability policy covering the store.
What followed was sharply disputed at the trial below. Sonnenberg claimed that Maginnis came personally to the store premises, walked "through the premises," took specific note of and possibly rode on the elevator in the open shaft of which the alleged accident later occurred. Sonnenberg further testified that he requested coverage for "any and every contingency." Maginnis, on the other hand, testified that he never visited the store but issued the policy in reliance on facts given to him over the phone by Baron. However, there was no mention of elevators in his conversations with Baron prior to the accident.
Maginnis issued and countersigned the Travelers policy in question on March 4, 1957. He also wrote truck insurance and a workmen's compensation policy for Sonnenberg. When the Travelers policy arrived Sonnenberg looked at it, but he admitted that he did not read it thoroughly.
The accident occurred in August 1957, and the subsequent events are again in sharp dispute. Sonnenberg testified that when notified of the accident Maginnis assured him that he was "completely covered" and would file a claim with the company, and that not until several weeks later did Maginnis report to him that he was not covered for elevator accidents. Maginnis presented a very different version of the post-accident events. He denied ever admitting that he thought the Travelers policy covered the Portella accident. He testified that immediately after the accident he told Baron that Sonnenberg had no elevator coverage. He admitted that he went to Sonnenberg's store following the accident and subsequently filed a claim, but his testimony
was that he told Sonnenberg there was no elevator coverage, but that he would submit the claim to the company anyway on the chance that Travelers might honor it.
The trial court resolved the factual conflicts in favor of Sonnenberg, concluding that both he and Maginnis intended the coverage to be complete and without any exclusion for elevator accidents.
The appellants' principal contention on appeal is that such a finding was against the weight of the evidence.
There is no question that a party to an insurance policy may have the contract reformed where there is a mutual mistake or where the complaining party's unilateral mistake is accompanied by the fraud or unconscionable conduct of the other party. Heake v. Atlantic Casualty Ins. Co. , 15 N.J. 475, 481 (1954); see Nazarro v. Globe & Republic Ins. Co. , 122 N.J. Eq. 361 (Ch. 1937), affirmed 127 N.J. Eq. 279 (E. & A. 1940); Sardo v. Fidelity & Deposit Co. of Maryland , 100 N.J. Eq. 332, 334 (E. & A. 1926); Volker v. Conn. Fire Ins. Co. , 22 N.J. Super. 314, ...