For reversal -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Clifford, J.
Plaintiff, The Sussex Mutual Insurance Company (hereinafter Sussex), issued to defendant Hala Cleaners, Inc., t/a One Hour Martinizing (hereinafter Hala) a Special Multi-Purpose Policy. Defendant Harold Fishman was president of Hala. Under "Section I -- Property Coverage" the policy insured Hala against direct loss of or damage to personal property by fire and other perils at premises located at 149 Meeker Avenue, Newark, which Hala leased from defendant Essess Realty Co. (hereinafter Essess). It also provided coverage under "Section II -- Liability Coverage", for personal injury and property damage liability. On January 5, 1971, while the policy was in effect, the premises and contents thereof were severely damaged by fire. In its wake came this and other litigation.
First, Hala instituted suit in March, 1971, against Sussex seeking the appointment of appraisers to determine the value of its damaged property. Judge Herbert held that Hala was entitled under the fire coverage to have appraisers appointed, 115 N.J. Super. 11 (Ch. 1971), noting in the course of his opinion that "liability under the policy" was "disputed." Id. at 12. Next came Hala's suit, by complaint filed in January, 1972, against Sussex for payment of its claim under the fire coverage of the policy. Before that case came to trial Essess instituted an action in March, 1972, naming Hala, Fishman and others as defendants, in which it sought recovery for the damage to its property resulting from the same fire. In addition to charging the various
defendants with negligence, Essess alleged in its complaint that "Hala, by and through its agent, servant or employee, Harold Fishman, deliberately caused" the fire, on account of which it asked for punitive as well as compensatory damages. After some correspondence between Hala and Sussex, to which further reference will be made below, Sussex filed an answer on Hala's behalf in the Essess case in June, 1972 and obtained a stay of that suit pending the outcome of the Hala-Sussex case. [It is this action by Sussex with respect to Hala's defense of the Essess suit which claims our attention here.] Finally, Sussex commenced the instant action in the Chancery Division on August 4, 1972 for a judgment declaring that it is "not obligated [under the liability coverage] to defend the action instituted by Essess Realty Co. or to pay any judgment that may be obtained * * *."
This Chancery Division case was originally consolidated with the Law Division action in which Hala as plaintiff sought recovery under the fire insurance portion of the policy, and the two cases were pretried together in October, 1973. This was followed by a supplemental pretrial conference eleven days later. Thereafter, at the commencement of the Law Division case, the trial judge severed the instant matter. This entirely proper step permitted the Law Division trial to address the narrow question of Sussex's obligation to pay Hala under the fire coverage, leaving for later resolution the issue of Sussex's duty under the liability coverage to defend Hala in the Essess suit. The attorney for Essess was present at the commencement of the Hala trial on the policy and expressly agreed that he would be "bound by the jury's adjudication" of the several issues proposed to be submitted to it on special interrogatories directed to Sussex's defenses of arson and fraud.
The case in which Hala sought recovery for its damages from Sussex under the fire insurance then went to trial and resulted in a judgment in favor of the defendant insurance company. The jury made specific findings, as recorded in
its answers to the special interrogatories, as follows: (1) Hala, through Fishman, had "wilfully ignited" the property with the intent to burn it and recover for its loss; (2) the insurance policy was "suspended" on the date of the fire because of an "increase in hazard;" (3) Hala, through its owner, Fishman, wilfully attempted to defraud the insurance company; (4) Sussex had not waived its defenses of intentional setting of the fire and increase in hazard, and was not estopped from denying coverage; and (5) Hala had suffered no loss of earnings payable under the policy.
Thereafter the instant cause came on for trial.*fn1 It will be recalled that in this case Sussex sought a declaration that it was relieved of its duty under the policy to defend and indemnify Hala in the action instituted by Essess against Hala. The case was heard by the same judge who had presided over the earlier jury proceedings resulting in a judgment in Sussex's favor. The single issue, as framed by the trial judge, centered about "the defense of waiver or estoppel," Hala contending that "by virtue of Sussex Mutual having undertaken the defense of the case in Union County [the claim of Essess against Hala and others], they are estopped now to deny coverage under the liability policy * * *."
The trial judge viewed this rather narrow issue as having two parts, namely, whether Sussex's actions prior to the institution of Hala's suit on the fire portion of the policy afforded any basis for a finding of waiver or estoppel, and further, or alternatively, whether such a basis might be found in the insurance carrier's action in filing an answer on Hala's behalf to the Essess complaint. As to the first, the trial judge concluded that principles of res judicata compelled him to declare that no waiver or estoppel resulted from Sussex's
actions prior to the commencement of Hala's suit, the jury having made specific findings favorable to Sussex on these issues -- findings with which, as he specifically pointed out, the trial court agreed.*fn2 As to the second assertion, that a waiver or estoppel resulted from Sussex's "inaction or action" after Essess's suit against Hala had been instituted, again the trial judge found for the insurance company. He reasoned that by filing an answer and obtaining a stay the carrier had not undertaken to control the Essess suit on Hala's behalf but rather had simply attempted to "maintain the status quo of the Essess Realty suit, pending an adjudication as to whether or not they would be compelled to defend that suit and extend coverage to Hala Cleaners." Accordingly, the trial court entered ...