This is an action for recovery under the collision provisions of an automobile insurance policy.
Plaintiff Rudolph Dwane, while driving his automobile in New York State on June 28, 1970, was involved in a serious accident. He and his wife suffered personal injuries and the automobile was extensively damaged. Both Mr. and Mrs. Dwane were removed to a hospital in Goshen, New York. The automobile, which was disabled, was towed to Anderson's Body Shop in Chester, New York.
The automobile was insured against collision damage by defendant company. Dwane, who was less seriously injured than his wife, notified the company of the accident by telephone call to its local agent in Cherry Hill, New Jersey. A week later, while Mrs. Dwane was still hospitalized in Goshen, Dwane saw the automobile at the Anderson shop. His observation, admittedly not with the eye of an expert, led him to believe that the damage was total and the automobile beyond repair.
Mrs. Dwane was confined to the hospital in Goshen for two weeks. Upon the return of the couple to Cherry Hill, Thomas Unger, a claim representative of defendant company, called on Dwane at his home and discussed with him at length the circumstances of the accident. A week later Dwane received from Unger a handwritten "Claim Memorandum" dated July 28, 1970, with which was enclosed a "Proof of Loss" with the request that the latter be signed and returned to the company. The "Claim Memorandum" stated that the "agreed figure for repair" was $1744.34 and that the "net claim" (the "agreed figure" less $50 deductible) was $1694.34.
Dwane declined to execute the "Proof of Loss," being of the opinion, as he told Unger, that the automobile was not repairable. He asked that the car be towed to a place closer to his home so that he might "keep an eye on it." The request was refused, Dwane being informed that it was "company policy" to pay only for the towing of the vehicle from the scene of the accident.
The "agreed figure" set forth in Unger's "Claim Memorandum" was arrived at in this wise:
The claim was assigned by the company to an independent adjuster who engaged Ford's Appraisal Service, an automotive appraisal specialist in Goshen, to negotiate with Anderson's Body Shop with respect to the estimated cost of repairs. This appraiser prepared an estimate dated July 9, 1970 containing the statement that "When authorized, the below named (Anderson's Body Shop) will complete and guarantee the listed repairs for a total of $1744."
On receipt of this estimate, Unger sent the "Claim Memorandum" and "Proof of Loss" to Dwane. Plaintiff himself had no part in the negotiations between the appraiser and the body shop or in the preparation of the estimate. He was not told where repairs would be made. Moreover, it is inferable that he was never informed that the making or authorizing of repairs was his responsibility.
Having declined, as stated, to execute the "Proof of Loss," Dwane consulted his present counsel, Frederick R. Grayer. Grayer conferred with Unger and achieved an understanding that if the estimate were agreed to and the proof of loss executed accordingly, any undiscovered damage requiring further repair would be paid for by the company. This understanding was set forth in a letter by Grayer to Unger, dated August 14, 1970. With that understanding and subject thereto, Dwane, on counsel's advice, executed the "Proof of Loss" and returned it to the company. Thereafter defendant issued its check dated August 20, 1970 to the order of Rudolph Dwane for $1694.34. The check was received and deposited by Dwane.
Anderson's Body Shop failed to return the automobile or to advise plaintiff that repairs were completed or even in progress. Repeated attempts by Dwane to communicate with them having proved fruitless, he again turned for help to Unger, who on February 23, 1971 addressed a letter to Anderson's Body Shop demanding advice as to the repair of the car and explanation for the long delay. So far as appears, there was no reply ...