The complaint seeks a declaratory judgment relieving the plaintiff (Allstate) of liability under an automobile liability insurance policy in connection with an action now pending in the Law Division entitled "Raymond Grillon v. George A. Bradley and Kenneth Douglas" and bearing Docket No. L-17880-65. The Law Division action has been stayed pending the outcome of these proceedings. No service was made upon the defendant Bradley in this action although notice was given to him by publication. He has not entered an appearance. The matter is before the Court on final hearing.
On August 13, 1964, Raymond Grillon (defendant herein and plaintiff in the Law Division action) was injured when he was struck by a parked automobile which in turn had been struck by an automobile owned by Kenneth Douglas and operated by George A. Bradley. At the time of the accident there was in force a policy of automobile liability insurance issued by Allstate to Kenneth Douglas covering the vehicle driven by Bradley. Proper notice of the accident was given to Allstate which promptly commenced its investigation. A copy of the police report was obtained on or about August 19, 1964 which indicated that another vehicle may have caused or contributed to the accident by cutting Bradley off. A detailed written statement was taken from Bradley in early September 1964. This statement indicated that there
was no agency between Bradley and Douglas at the time of the accident and also that there would be a substantial defense on the question of liability for the accident.
Shortly after the accident Allstate attempted to interview Grillon but was unable to do so at first because of his condition and later because it was advised that Grillon was represented by an attorney.
As a result of the accident Grillon sustained a compound fracture of the right tibia and fibula. He was taken to Patterson Army Hospital where he remained until April 28, 1965 except for periods of convalescent leave. While he was at the hospital, there were three operations performed. The United States Government has asserted a claim for hospital care in the amount of $4,151. Allstate was advised by Grillon's attorney that he had received no civilian medical care, but that he was to be examined by a civilian doctor for evaluation purposes.
On June 27, 1965, Allstate requested a physician, chosen by it to evaluate Grillon's injuries, to obtain a physical examination of him. When the doctor was unable to arrange the examination, Allstate contacted the attorney representing Grillon on July 27, 1965, October 8, 1965, October 15, 1965, October 27, 1965 and May 9, 1966. On each occasion there were protestations of cooperation, but Allstate was never able to obtain a physical examination. The attorney who at that time was representing Grillon knew the interest of Allstate, its claim file number and the name of the claimsman in charge.
The Law Division action was instituted February 24, 1966 against both Bradley and Douglas. Summons and complaint was served personally upon Bradley on March 21, 1966. No service was made upon Douglas. Upon being served with the summons and complaint, Bradley made no attempt to send it to Allstate or to notify Allstate of the institution of suit although he knew that Allstate was the automobile liability insurer. He left the State of New Jersey and went to California on April 9, 1966 without notifying anybody that he
was going. Since that time Bradley has returned to New Jersey briefly on about seven occasions. He testified that under no circumstances was he going to tell Allstate where he could be located. It was not until October 25, 1967 -- one year, seven months and four days after service upon Bradley -- that Allstate was advised that suit had been commenced. The advice and a copy of the summons and complaint was received from Grillon's present attorneys, who were not substituted in the Law Division action until shortly before October 25, 1967, on which date the substitution of attorney was filed.
The insurance policy provides in Condition No. 2:
"If claim is made or suit is brought against the insured, he shall immediately forward to Allstate every demand, notice or summons ...