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Simons v. American Mutual Liability Insurance Co.

Decided: October 3, 1969.


Yancey, J.c.c. (temporarily assigned).


[107 NJSuper Page 210] This is a motion for summary judgment made pursuant to R. 4:46-1 by defendant, American Mutual Liability Insurance Company (American Mutual), duly licensed to do business in New Jersey. Plaintiff C.J. Simons & Co. filed a cross-motion for summary judgment on its behalf.

The facts underlying these proceedings are uncontroverted. Defendant issued two policies to Hersh Enterprises, Inc., one a workmen's compensation policy and the other a general liability policy. Both policies were to remain in force from August 24, 1964 to August 24, 1965. On January 5, 1965 Hersh Enterprises assigned its policies to plaintiff. Defendant acknowledged this assignment in writing. Prior to the expiration of the policies defendant declared a dividend on each policy consisting of $1,995.41 on the workmen's compensation policy and $1,139.66 on the general policy. The insured, Hersh Enterprises, defaulted in its payment of the insurance premiums, leaving a balance still due to defendant of $4,000.09. Thereafter, Hersh Enterprises became bankrupt. In the bankruptcy proceedings which followed defendant filed a statement of account with the judge in bankruptcy on March 18, 1966 which indicated that it had credited the dividends to the account of Hersh Enterprises instead of paying the amount to the insured's assignee, C.J. Simons & Co. The result of this credit was that an unpaid balance of $865.02 was still due to defendant.

Plaintiff's position is that they are the insured's assignee and that once the dividends were declared they became payable to it, and that defendant wrongfully credited the insured's account with these dividends. Defendant contends that nothing was owed either the insured or his assignee due to the default of the insured in its payment of the premiums.

A "dividend" represents a share of surplus apportioned by the directors of mutual insurance companies for distribution to policyholders, and it is commonly considered a reduction of premium. Sniader v. Sniader , 40 Ill. App. 384, 188 N.E. 2 d 255 (App. Ct. 1963). The dividend acts as a return to mutual insurance policyholders (all of whom are "owners" of the company) of a portion of earned premiums not expended in the operations of the company. In re Marcalaus Mfg. Co. 3 Cir. 205 F.2d 627 (1953).

It appears to be common practice amongst insurers to have any dividends or premium refunds credited against any of the insured's obligations to the insurer. "It is not inconsistent to refuse actual payment of a refund to an insured in default while permitting a credit to be given him 'to the extent of his obligations to the Company.'" Ibid. , at 629.

In the present case the American Mutual liability insurance policy, provision 18, stated:

This policy is non-assessable. The insured is a member of the Company and shall participate to the extent and upon the conditions fixed and determined by the Board of Directors, in accordance with the provisions of the law, in the distribution of dividends so fixed and determined

On May 19, 1965 defendant's board of directors at a regular meeting adopted a resolution concerning the payment of dividends to policyholders whose policies were to terminate in the month of August 1965. The pertinent portion of that resolution states: "Provided no dividends shall be paid or credited to a policyholder or principal until the terms of the policy or bond as respects payment of premium shall have been complied with." Due to the fact that the insured, Hersh Enterprises, Inc., defaulted in payment of its premiums, it was not entitled to be paid any dividend according to the terms of the insurance policy and the resolution passed by the board of directors.

In the Marcalaus case the mutual insurer's board of directors passed a resolution similar to the one in the present case, stating that a premium refund should not be "payable" to any insured in default in his payment of any premium due the insurer. The court held that although this meant that a refund was not payable to the insured, such a default would not necessarily deprive the insured of the right to have the amount of the refund credited against his obligation to the insurer. The procedure outlined in Marcalaus was adhered to in the present action; defendant credited the declared dividends against the insured's outstanding

obligations to it, instead of paying the insured a ...

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