Belopolsky, J.c.c., Temporarily Assigned.
This matter comes before the court on cross-motions for Summary Judgment. The defendant, The Ohio Casualty Insurance Company, seeks to deny payment to a wife, who played no part in her house being destroyed by fire, under a fire insurance policy, because her spouse intentionally set fire to their home. The house was destroyed and the husband took his own life while the building was in flames.
The policy in question was issued in the name of plaintiff and her husband. It contained the standard provision, required by N.J.S.A. 17:36-5.20, that the policy shall be void because of fraud by the "insured."
It is undisputed that the intentional burning of one's own house is fraud, 44 Am. Jur. 2d, Insurance , § 1365. The sole question in issue here, and one which is novel in New Jersey, is whether the intentional burning by one spouse of a homestead, held in tenancy by the entirety, will bar the recovery by the innocent spouse under a fire insurance policy.
The insurance company asserts that the insured interest here was joint, arising both from the legal identity of husband and wife, and the legal estate which they possessed. This joint interest or identity, it is argued, creates, in law, but one insured under the policy. Therefore, the fraudulent act of one spouse would necessarily become the act of both and bar the innocent spouse's recovery. Kosior v. Continental Ins. Co. , 299 Mass. 601, 13 N.E. 2d 423 (Sup. Jud. Ct. 1938); Matyuf v. Phoenix Ins. Co. , 27 Pa. D. & C.R. 2d 351 (Cty. Ct. 1933); Jones v. Fidelity & Guaranty Ins. Corp. , 250 S.W. 2d 281 (Tex. Civ. App. 1952); Bridges v. Commercial Standard Ins. Co. , 252 S.W. 2d 511 (Tex. Civ. App. 1952); California Ins. Co. v. Allen , 235 F.2d 178 (5 Cir. 1956); Klemens v. Badger Mut. Ins. Co. , 8 Wis. 2d 565, 99 N.W. 2d 865 (Sup. Ct. 1959); 44 Am. Jur. 2d, Insurance, § 1365; See also, Monaghan v. Agricultural F. Ins. Co. , 53 Mich. 238, 18 N.W. 797 (Sup. Ct. 1884),
dealing with joint ownership by a mother and her children; Federal Ins. Co. v. Wong , 137 F. Supp. 232 (D.C. Cal. 1956), dealing with joint ownership of a truck.
Plaintiff points out that where the interests of the coinsureds are several, the innocent party has not been precluded from recovering, notwithstanding the fraudulent acts of the other. Mechanics' Ins. Co. v. Inter-Southern L. Ins. Co. , 184 Ark. 625, 43 S.W. 2d 81 (Sup. Ct. 1931); Mercantile Trust Co. v. New York Underwriters Ins. Co. , 376 F.2d 502 (7 Cir. 1967); Rent-A-Car Co. v. Globe & Rutgers Fire Ins. , 158 Md. 169, 148 A. 252 (Ct. App. 1930); Hoyt v. New Hampshire Fire Ins. Co. , 92 N.H. 242, 29 A.2d 121 (Sup. Ct. 1942); see also the annotation in 24 A.L.R. 3d 450.
Plaintiff contends that New Jersey has abolished the common law legal identity of husband and wife, the most recent evidence of this being Immer v. Risko , 56 N.J. 482 (1970), which abolished interspousal immunity. Therefore, the insured interest under the fire insurance policy should be interpreted to be several and not joint, thus allowing the wife to recover as any innocent coinsured would.
Whether there is a joint or several interest present requires an examination of the status of the legal identity of husband and wife in New Jersey. The New Jersey Married Women's Act, N.J.S.A. 37:2-1 et seq. , secured a separate legal identity for married women, Sillery v. Fagan , 120 N.J. Super. 416 (Cty. D. Ct. 1972), and released them from the disabilities of coverture, Patusco v. Prince Macaroni, Inc. , 50 N.J. 365 (1967).
The concept of an identity of husband and wife has come under criticism. Justice Haneman, in Long v. Landy , 35 N.J. 44, 50 (1961), referred to the legal identity of husband and wife as "artificial and technical." In Immer v. Risko, supra , Justice Proctor explored the question at great length and concluded (56 N.J. 488) that the legal identity
of husband and wife was a "metaphysical concept" which "cannot be ...