Simpson, J.c.c. (temporarily assigned).
For purposes of this motion by defendant Richard Surnack for summary judgment, the material facts are not in dispute. Surnack was employed by defendant Consolidated Freightways. He drove his "company car" from his home to Sears-Roebuck to have the air conditioner repaired. When it developed that the car would be there all day, he called his employer for instructions and was told to have his wife pick him up, take her home, and then proceed in his own car with company calls. On the way home, he was in an accident and Olga Surnack was hurt.
The accident occurred on July 23, 1969. Based upon the holding in Immer v. Risko , 56 N.J. 482 (1970), abolishing interspousal immunity in automobile negligence damage suits, Olga Surnack sued her husband as well as his employer.
Consolidated Freightways crossclaimed against Richard Surnack for joint tort-feasor contribution and employee-employer indemnification. In view of the decision in Darrow v. Hanover Tp. , 58 N.J. 410 (1971), that the abolition of interspousal immunity is prospective only and not applicable to accidents occurring prior to July 11, 1970, the parties agree that Mrs. Surnack's claim against her husband must be dismissed. Nor is it disputed that the crossclaim of Consolidated against Surnack for contribution must be dismissed. Kennedy v. Camp , 14 N.J. 390 (1954).
The issue presented is whether Consolidated can maintain its crossclaim against Richard Surnack for indemnification when interspousal immunity was still in effect. The question of indemnification under these circumstances, based upon an employee's breach of his duty to the employer to exercise due care, does not appear to have been decided in this State.
Ohio Casualty Company insures Richard Surnack's vehicle, and Consolidated in a separate action is seeking a declaratory judgment that the policy covers it as an additional insured pursuant to N.J.S.A. 39:6-46. Although technically not a party to the present action, counsel for the moving party, Richard Surnack, appeared as counsel for said carrier and stipulated he represented Ohio Casualty for all purposes (i.e. , for the benefit of both the insured and the insurer).
Although the question has not been decided in New Jersey, it has received attention by our highest court. In Hudson v. Gas Consumers' Ass'n , 123 N.J.L. 252 (E. & A. 1939), an automobile personal injury case, a wife's right to sue her husband's employer on the basis of his negligence was sustained. By way of dictum the court there said that if the wife recovered against the employer, the latter would have an indemnity action over against the employee-husband, based upon a breach of duty owed by a servant to his master. However, as noted by Justice Francis, in his dissenting opinion in Immer, supra , 56 N.J. at 498, our Supreme
Court subsequently cast serious doubt on the validity of this dictum.
Thus, in Eule v. Eule Motor Sales , 34 N.J. 537 (1961), an automobile personal injury case wherein it was held that interspousal immunity did not preclude a wife from suing a partnership of which her husband was a member, for his negligence as its agent, the theoretical liability of an employee to indemnify his employer was termed an anachronistic departure from modern employment realities. Reference was made to the enterprise theory of risk of loss and the routine employer purchase of insurance that also protects employees. The prospect of a claim for indemnity was deemed of academic significance only, except for the rare case where the liability of an employee may serve as a stepping stone to reach someone else. Finally, it was noted in Eule that even in such a case, upon a balancing of considerations, the right to indemnity from the negligent spouse might yield to the right of the injured spouse and be denied.
Consolidated recognizes the trend of juristic thinking evidenced by Chief Justice Weintraub's opinion for the majority in Eule , and candidly asserts it seeks to use defendant Richard Surnack as a stepping stone to reach the Ohio Casualty coverage under his liability policy. Maryland Cas. Co. v. N.J. Mfrs. (Cas.) Ins. Co. , 48 N.J. Super. 314 (App. Div. 1958), aff'd 28 N.J. 17 (1958), is an example of the "stepping stone" theory of indemnification, through a negligent employee to his insurance coverage, of an employer only vicariously liable under the doctrine of respondeat superior. However, interspousal immunity was not involved. No reason appears why the theory should not apply in this case, to the extent of Surnack's Ohio Casualty coverage. There are many reasons, on the other hand, why indemnification within the policy limits should be allowed.
From a plaintiff's viewpoint, full compensation is the important thing, and there is a strong public policy in New Jersey favoring the ...