Conford, Freund and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
[84 NJSuper Page 480] Defendant General Accident Fire and Life Assurance Corporation, Ltd. (General Accident) appeals from a judgment on the pleadings in favor of plaintiff Hackensack Water Company (Hackensack). The issue
involved is coverage under an insurance policy issued by General Accident to Hackensack.
Hackensack instituted the instant action against General Accident to recover the sum of $505 it had expended to defend a third party action instituted by Vergona & Sons, Inc. (hereafter Vergona).
On June 8, 1960 Lester Jansen, an employee of Hackensack, was injured in the course of his business duties for his employer while on the premises of Vergona. Hackensack is self-insured with respect to workmen's compensation coverage and it paid Jansen workmen's compensation benefits. Jansen then instituted an action grounded in negligence against Vergona. Vergona filed a third party action against Jansen's employer, Hackensack, seeking indemnification.
The third party complaint was not based on Hackensack's alleged assumption of liability by contract but rather on the allegation that the injuries to Jansen were caused by the sole, or primary, negligence of Hackensack, and that either Vergona was not negligent or any negligence on its part was secondary in character, resulting in a right to indemnification as a matter of common law.
Hackensack had a combined comprehensive liability insurance policy with General Accident, the pertinent provisions of which read:
"COVERAGE B -- BODILY INJURY LIABILITY -- EXCEPT AUTOMOBILE To pay on behalf of the insured all sums which the insured shall become legally obligated to pay or the liability of others assumed by him under contract for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons."
"II DEFENSE, SETTLEMENT, SUPPLEMENTARY PAYMENTS With respect to such insurance as is afforded by this policy, the company shall:
(a) 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; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient; * * *."