Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.
Plaintiff Maryland Casualty Company (hereinafter Maryland) instituted an action in the Superior Court, Law Division, for a declaratory judgment pursuant to the provisions of N.J.S. 2A:16-50 et seq. Maryland thereby sought an adjudication of its rights and obligations under two certain policies of insurance, a "Workmen's Compensation and Employers' Liability Policy" and a "Comprehensive General Liability Policy," issued by it to Conti Contractors, Inc. (by appropriate court order the name of the designated insured was later corrected to read "Gerald Conti, t/a Conti Contractors"). Plaintiff contended that the provisions of said policies did not require it: (a) to honor a demand that it defend two certain suits (among others) pending in the Superior Court, Law Division, and (b) to satisfy any judgments which might therein be recovered. The suits in question had been instituted by Anna G. Zanca, general administratrix and administratrix ad prosequendum of the estate of Fred B. Zanca, deceased, and by Sidd Kravitz, general administrator and administrator ad prosequendum of the estate of Michael Angelo Lozado, deceased, against the Village of Ridgewood (hereinafter Ridgewood) and others for damages under the Wrongful Death Act. Alleged negligence of the municipality and its officials was asserted as the basis for the actions instituted as the result of an accident occurring on October 3, 1958. Zanca v. Conti , 73 N.J. Super. 23 (App. Div.), certif. den. 37 N.J. 522 (1962).
Ridgewood, three members of its governing body and its clerk answered Maryland's complaint in the instant case and also filed a counterclaim by which they sought a judgment granting the following relief, to which we have hereinabove referred:
"A. Requiring the plaintiff [Maryland] forthwith to conduct, and at its own cost and expense, the defense of the suits instituted by Anna G. Zanca and Sidd Kravitz and any other suits which may be instituted against these defendants or any of them arising out of the
operations of the said Gerald G. Conti under the terms of the contract of April 15th, 1958 and to pay within the limits of the policy coverage any judgments which may be obtained by the said Anna. G. Zanca or Sidd Kravitz or any other person who shall hereafter institute suit.
B. To indemnify these defendants against any and all claims made by the said Anna G. Zanca or Sidd Kravitz or any other person who shall hereafter institute suit against these defendants or any of them arising out of the operation of the said Gerald G. Conti under the terms of the contract of April 15th, 1958 or pursuant to his operations thereunder.
C. That the said Maryland Casualty Company indemnify these defendants for attorneys fees already incurred in the defense of the said suits."
The case was resolved by the trial court on the basis of the pleadings, pretrial order, the aforesaid insurance policies, and the written contract between Ridgewood and Gerald G. Conti, dated April 15, 1958, for the construction of a sanitary sewer on Linwood Avenue and Route 17 in Ridgewood. The trial court, by its declaratory judgment entered November 27, 1960, held that under the aforesaid policies Maryland had no obligation to defend Ridgewood and others named in the Zanca and Kravitz actions aforesaid or to pay any judgments which might be returned against them in those suits.
Meanwhile, in the Zanca and Kravitz cases, defendants (Ridgewood, Irma D. Raymond, executrix of the last will and testament of Robert T. Raymond, deceased (former Ridgewood engineer), Merville Seely (assistant Ridgewood engineer), and Henry J. Gerritsen (its inspector)) on their motion were granted a summary judgment (R.R. 4:58-2,-3). The motion for summary judgment was considered and resolved on the basis of the pleadings, affidavits and depositions. Zanca and Kravitz appealed to this court, seeking a reversal of the judgment as to Ridgewood only. They contended that, in view of the proofs adduced, certain factual questions were presented which could be resolved only at a plenary trial. We agreed and, reversing the summary judgment aforesaid, remanded the case to the Law Division for
trial as to Ridgewood. Zanca v. Conti, supra , 73 N.J. Super. , at p. 39. The case is pending.
By stipulation between the parties in the instant case the appeal by Ridgewood et al. from the judgment of the trial court in favor of Maryland under the action for a declaratory judgment was held in abeyance pending this court's resolution of the appeal in the Zanca and Kravitz cases aforesaid. Following the aforesaid decision of this ...