Goldmann, Kilkenny and Carton. The opinion of the court was delivered by Kilkenny, J.A.D.
Defendants Leo J. Antonino, t/a Moonachie Taxi, and Guiseppi Antonino appeal in this automobile collision, property damage negligence action from a judgment in plaintiff's favor and against them in the sum of $692 and costs.
Suit was instituted on July 16, 1965 in plaintiff's name by his insurance carrier under its subrogation rights to recover from defendants for its benefit moneys which it had paid because of collision coverage for the repair of plaintiff's automobile which had been damaged in a four-car accident in Moonachie on November 19, 1962. The suit was against Jones, owner and operator of one of the automobiles, and Moonachie Taxi, later amended to read "Leo Antonino, t/a Moonachie Taxi." By a third-party complaint Jones brought in Dorothea J. Spain, owner and operator of another of the four vehicles involved, and Guiseppi Antonino, owner and operator of the taxi, and employed by his son Leo in the conduct of the latter's taxi business.
On the day of trial and before any evidence was introduced, defendants Leo and Guiseppi Antonino moved to dismiss the action as to them on the ground that, in an earlier suit instituted on November 4, 1963 by Guiseppi Antonino against plaintiff herein, Jones and Spain, the same insurance carrier prosecuting the present action by the same attorneys had settled Guiseppi's claim against its insured by the payment of $100 to Guiseppi and had obtained therefor a dismissal of the former suit with prejudice and a release by Guiseppi of the insured.
In that earlier action a similar disposition, also for a $100 consideration paid by Dorothea Spain, had been made as to Guiseppi's suit against her. Jones had not been served in that action and Guiseppi voluntarily dismissed his suit as to him without prejudice. The trial court reserved the motion to dismiss the present action on the ground aforesaid pending the taking of testimony on the issue of liability. After a plenary trial it found that Guiseppi Antonino was negligent in the operation of the taxi at the time and place in issue, as was defendant Jones, and that plaintiff was free from contributory negligence. It also found that third-party defendant Dorothea Spain was not liable. Accordingly, it entered a judgment in favor of plaintiff and against defendants Jones and Leo J. Antonino for $692 and costs, as first above noted.
On the third-party complaint filed by Jones the trial court found no cause of action against Dorothea Spain, but directed entry of a judgment against Guiseppi Antonino. It denied the motion to dismiss made by the Antoninos.
The sole contentions made by Leo J. and Guiseppi Antonino on this appeal are: (1) plaintiff was estopped from proceeding or recovering against them, and (2) a stipulation of dismissal with prejudice consented to by the parties is a terminal disposition of the issues involved. Reference, of course, is made to the earlier litigation instituted by Guiseppi Antonino against plaintiff herein, Rossum, and the others, which resulted in Rossum's insurance carrier paying Guiseppi $100 for a release of its insured and a dismissal of that suit with prejudice. That release was unilateral in that Rossum did not then execute a reciprocal release in Guiseppi's favor. Also, in that earlier action Rossum had filed no counterclaim, albeit he might have done so. R.R. 7:1-3; R.R. 5:2-1; R.R. 4:13-1.
The precise question herein -- whether an insurance carrier may prosecute a subrogation claim in the name of its insured against a party with whom it has made a prior settlement on behalf of its insured and from whom it has obtained a release
and dismissal with prejudice of a pending action against its insured -- has not been answered by our courts in any prior decision, so far as we are aware.
The closest case in point of fact is Kelleher v. Lozzi, 7 N.J. 17 (1951). Kelleher sued Lozzi for her property loss and personal injuries resulting from an intersection collision of their respective automobiles. A previous suit had been instituted by Lozzi against Kelleher for personal injuries and Kelleher filed an answer denying liability, but no counterclaim. That suit was settled and dismissed without costs upon Kelleher's paying Lozzi $550 for the dismissal and a release executed by Lozzi. At a prior pretrial conference the parties had stipulated to admit in evidence Lozzi's property damage bill in the amount of $331.50 and a physician's bill for services to Lozzi in the amount of $266.
The trial court struck the later complaint of Kelleher against Lozzi. On the Supreme Court's certification the judgment of dismissal was affirmed. It held that the settlement upon payment and release of a prior case, arising out of the same accident in which Lozzi had sued Kelleher, estopped Kelleher from taking the opposite position in the subsequent case and that consequently she failed to state a claim upon which relief could be granted. The court reasoned that the parties had by their settlement really made their own adjudication, and payment by the one for a release and dismissal by the other was an acknowledgement that the one who paid was at fault, thereby estopping the payor from subsequently taking the opposite position. In the court's words, Kelleher "was not at liberty so to pursue her elective courses that she could lead the plaintiff into a settlement and the giving of a release with the reasonable and logical expectation that by this ...