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Biasi v. Allstate Insurance Co.

Decided: January 15, 1969.

DEBORAH BIASI, AN INFANT, BY THE GUARDIAN OF HER PERSON AND PROPERTY, MARION BIASI, PLAINTIFF-APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, A CORPORATION, DEFENDANT-RESPONDENT, AND ELIZABETH DRESSLER, DEFENDANT



Conford, Kilkenny and Leonard. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

[104 NJSuper Page 156] Plaintiff appeals from a summary judgment entered against her by the trial court.

On May 26, 1964 defendant Elizabeth Dressler (Dressler) while operating an automobile owned by her now deceased husband Henry Dressler struck the infant Deborah Biasi. On this date defendant Dressler's vehicle was covered by a $10,000 limit automobile liability policy, issued by defendant Allstate Insurance Company.

The infant, through her parent, Marion Biasi, as guardian, and Marion Biasi individually, instituted suit against Dressler in the Hudson County Court. Following trial, a judgment in the amount of $25,000 was entered in favor of the infant and a judgment of $1,000 in favor of her parent. The latter judgment was reduced by the trial judge to $411.42. Following denial of defendant's motion for a new trial, an appeal was taken to the Appellate Division which affirmed the judgment. Thereafter, Allstate paid to plaintiff the sum of $10,000 together with $969.87 interest and $221.65 court costs, leaving outstanding on plaintiffs judgment the sum of $15,411.42. Defendant Dressler has no available assets from which this judgment may be satisfied except weekly earnings of $75.

Subsequently, the attorneys for plaintiff suggested that defendant Dressler sue Allstate and forwarded to her for execution the form of an assignment. This instrument purported to assign to plaintiff Marion Biasi "all rights which I may have against Allstate * * * to recover against Allstate damages for the judgment recovered against me * * * in excess of the policy limits of my insurance policy with Allstate, said rights arising by reason of Allstate's breach of the contract of insurance between the said Allstate and myself." The assignment further provided that the consideration therefore was that upon the conclusion of the suit brought pursuant thereto by plaintiff Marion Biasi against Allstate Marion would give defendant Dressler a warrant of satisfaction of the judgment of record in " Biasi v. Dressler." Defendant Dressler never executed this assignment nor did she accept the further suggestion made by plaintiff's attorneys

that she join as a party plaintiff in a suit to be filed by plaintiff against Allstate.

Thus, plaintiff instituted the present action against Allstate and joined Dressler as a party defendant. In her complaint plaintiff alleges that Allstate "breached the terms of the insurance policy * * * by its failure to exercise good faith and reasonable care in the preparation, investigation, settlement negotiations, trial and appeal of the case of Deborah Biasi against Elizabeth Dressler, which breach proximately resulted in the * * * judgment against the defendant Elizabeth Dressler greatly in excess of the limits of her policy with the defendant, Allstate * * *." Plaintiff seeks to recover the unpaid portion of the outstanding judgment in her suit against Dressler, to wit, $15,411.42.

Defendant Allstate moved for summary judgment. Annexed to its motion was an affidavit by Dressler in which she states that she told plaintiff's attorney that she would not sue Allstate because she felt that the company had "handled the case all right" and further, that "I am completely satisfied with the way Allstate handled my case and I do not wish to sue Allstate nor do I want the Biasis to do so." The trial judge granted the motion for summary judgment.

At oral argument before us plaintiff confined its contention that Allstate had breached its insurance policy solely to the allegation that the insurer did not exercise good faith and reasonable care in that it failed to settle plaintiff's case for an amount less than the policy limits. Upon inquiry by us as to what would have been a reasonably acceptable settlement offer, counsel for plaintiff responded, "$7,500."

Plaintiff contends that a party injured in an automobile accident who recovers a judgment against another motorist, who caused the injury, for a sum in excess of the liability policy limits of defendant motorist's insurance coverage can, without holding an assignment from the insured, bring an action against the insurance company for breach of the

latter's obligation to act in good faith in reference to negotiation of settlement of the claim prior to judgment. Plaintiff bottoms its contention upon the argument that plaintiff has a common law right to succeed to any claim arising out of the ...


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