Civil action. On motion for summary judgment.
[99 NJSuper Page 138] This matter is before me on a motion by plaintiff Germer and her counsel, D'Alessandro, for summary judgment against defendants Public Service Mutual Insurance Company (hereinafter Public Service) and Seaboard
Fire & Marine Insurance Company (hereinafter Seaboard). Both defendants have filed cross-motions for summary judgment against plaintiffs.
The case arose out of an automobile accident in which Germer was injured while a passenger in the vehicle of Dorothy Root. Root's vehicle had collided with an automobile owned by Eileen Stallone. Thereafter, pursuant to the insurance policy held by Root, a claim for medical payments in the amount of $2,000 was made to and paid by Seaboard. Upon the receipt of said monies, a proof of loss containing a provision assigning to the insured the right of subrogation to her rights was signed by Germer.
Plaintiff instituted an action against Root and Stallone to recover for personal injuries received in the accident. D'Alessandro, the other plaintiff in this motion, represented her in the prosecution of that action. At the time of the collision Stallone had a policy of insurance with defendant Public Service with limits of $10,000/$20,000. A verdict of no cause of action was returned against Root and a judgment of $60,500 entered against Stallone.
Germer appealed the verdict as to Root after a motion for a new trial was denied. Stallone also appealed and co-operated with plaintiff in her appeal. However, the Appellate Division affirmed the verdicts and judgment below.
Plaintiffs thereafter commenced the present action against Public Service to recover the amount of $10,000 plus interest on the entire judgment returned against Stallone, the insured. Public Service paid the $10,000 into court on June 2, 1967 (the judgment had been entered on February 7, 1966) and crossclaimed against Seaboard who counterclaimed against plaintiff for the $2,000. Plaintiffs counterclaimed against Seaboard to determine (1) whether the subrogation clause in the proof of loss is against public policy, (2) the priority of liens, (3) whether counsel who prosecuted the case is entitled to counsel fees and costs as a lien, and (4) to determine whether payment should be on a pro rata basis.
The issues before the court on this motion are (1) whether plaintiffs are entitled to receive interest on the entire judgment or upon the amount which defendant Public Service is required to pay under its insurance policy, and (2) whether, if the medical payment subrogation clause is valid, Seaboard is entitled to recover $2,000 or a pro rata share from the $10,000 in proceeds afforded by the Public Service policy, subject to costs and counsel fees.
With respect to the first issue, plaintiffs rely principally upon Roth v. General Casualty & Surety Co., 106 N.J.L. 516 (E. & A. 1929), wherein a unanimous decision was rendered affirming the court below, and Kraynick v. Nationwide Insurance Co., 80 N.J. Super. 296 (Law Div. 1963). Public Service contends that these authorities do not control the case and, moreover, that the company offered to pay its liability immediately after the judgment was entered against the insured and therefore no interest should be charged against them.
Plaintiff D'Alessandro denies this last contention in his affidavit. Although this apparently raises a factual dispute, there are clearly no facts whatsoever in the record to indicate that defendant made an unconditional legal tender of such monies to plaintiff. Totowa v. American Surety Co. of New York, 39 N.J. 332, 350 (1963); Robbins v. Mack International Motor Truck Corp., 113 N.J.L. 377, 384 (E. & A. 1934). This appeared, too, during the course of the argument wherein defendant exhibited to the court the checks which it had tendered, and it appeared clearly that there was not an unconditional legal tender but a tender on condition that a warrant for satisfaction of judgment be signed in advance thereof.
In Kraynick plaintiff recovered a judgment against defendant's insured. Thereafter, she sued the insurance company and received a verdict in her favor. The insurer appealed from the judgment and the case was reversed and remanded. Upon the retrial of the cause a verdict was again ...