Goldmann, Halpern and Lora.
This is a declaratory judgment action brought by appellant Concord Insurance Company against its own insured, Catherine Miles, individually and as administratrix of the estate of her son Charles Miles, and others, claiming that it was not obligated under its automobile liability policy to defend or to pay any judgments obtained against the estate of Charles Miles who was driving his mother's car when he was involved in a three-car accident which resulted in the death of Charles, David Censullo and Rebecca Moody, and injury to Julian J. Meloni.
In its complaint for declaratory judgment plaintiff contended that Charles Miles was driving his mother's car without her consent, knowledge or permission, and without her authorization either express or implied, and hence was not an insured under the terms of the policy.
The pretrial order recited that plaintiff sought a declaration that it had no obligation under the terms of the policy, and set forth as its factual and legal contentions that at the time of the accident Charles Miles had no permission, express or implied, to operate Catherine Miles' vehicle; that he was not a person insured under the terms of the policy, and therefore it had no obligation to enter a defense on behalf of
either the estate or Catherine Miles in her capacity as administratrix of the estate, and should not be obligated to pay any judgments entered against them.
The trial judge, sitting without a jury, ruled that the burden of proof was upon plaintiff and not the claimants, and finding the proofs in equipoise, he held that it had failed to carry its burden of proof and thereupon entered the judgment here under appeal.
There is a divergence of judicial opinion on the question of which party carries the burden of proof in a declaratory judgment action brought by an insurance company seeking an adjudication of noncoverage.
The Declaratory Judgment Act, N.J.S.A. 2A:16-50 et seq. , is silent as to such burden of proof and it would appear that no New Jersey case has dealt with that issue where the insurer brings a declaratory judgment action.
The so-called New Hampshire rule, on which plaintiff relies, holds that the burden of proving that the use of the car was within the coverage of the policy is on the insurer's adversary in a negligence action, and the mere reversal of the parties in the declaratory judgment action does not change that burden. Travelers Ins. Co. v. Greenough , 88 N.H. 391, 190 A. 129, 130 (Sup. Ct. 1937). In Borchard, Declaratory Judgments (2d ed. 1941), at 404-409, 407, it is stated that "the burden of proof in actions for a declaration is not automatically on the plaintiff * * * but on him who 'without evidence would be compelled to submit to an adverse judgment before the introduction of any evidence,' or who asserts the affirmative of an issue." 20 Appleman, Insurance Law and Practice , § 11376 at 197-198, states that the burden of proof is not imposed according to the priority in taking legal steps to determine conflicting issues (citing the Greenough case); that the burden of proof is considered to rest where it would have been imposed if the insurer had chosen to defend a suit by the insured instead of bringing an action for declaratory judgment. See cases cited therein, and Annotation "Burden of proof in actions under general
declaratory judgment acts," 23 A.L.R. 2d 1243 (1952); 22 Am. Jur. 2d, Declaratory Judgments , § 98 at 965 (1965).
However, there is ample authority that the burden of proof is the same as in ordinary actions at law or in equity: the person seeking the declaratory relief must prove his case, as must any plaintiff, and the burden of proof lies with him. Anderson on Declaratory Judgments (2d ed 1951), § 375; 62 Harv. L. Rev. 787, 836 (1949); Continental Cas. Co. v. Padgett , 123 F. Supp. 847 (D.C.S.C. 1954); Liberty Mutual Ins. Co. v. Sweeney , 216 F.2d 209 (3 Cir. 1954), citing with approval 6A Moore's Federal ...