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Lumbermen''s Mutual Casualty Co. v. Carriere

Decided: October 12, 1978.

LUMBERMEN'S MUTUAL CASUALTY COMPANY, A CORPORATION, PLAINTIFF-APPELLANT,
v.
ESTHER COHEN CARRIERE, DEFENDANT-RESPONDENT, AND NICHOLAS CARRIERE, DEFENDANT



On appeal from the Superior Court of New Jersey, Law Division, Union County.

Lora, Michels and Larner. The opinion of the court was delivered by Michels, J.A.D.

Michels

This is an appeal from a judgment of the Law Division dismissing, under principles of comity and without prejudice, a declaratory judgment action instituted by plaintiff Lumbermen's Mutual Casualty Company against defendants Esther C. Carriere and Nicholas Carriere. The court held that the pendency of a prior action in the New York courts between the same parties involving the same issues precluded New Jersey courts from proceeding with this action. We disagree and reverse.

A brief recitation of the chronology of events is helpful to a resolution of the issues involved. On May 6, 1969 plaintiff issued an automobile public liability policy of insurance to Mrs. Carriere as the named insured. The policy, providing coverage for a 1969 Ford Galaxy automobile, also insured Mr. Carriere as the spouse of the named insured. The coverage period ran from May 6, 1969 to May 6, 1970. At the time the policy was issued Mrs.

Carriere listed her employer as Gage and LaRoy, real estate brokers in Parsippany, New Jersey, and her home address as Paterson, New Jersey. The policy was renewed for another year, commencing May 6, 1970, and in February 1971, while coverage was in force and effect, Mr. Carriere purchased another 1969 Ford Galaxy automobile. The policy was thereafter amended (1) to provide the coverage for the additional automobile and (2) to reflect a change in Mrs. Carriere's residence from Paterson to Newfoundland, New Jersey.

In the early part of 1971 Mr. and Mrs. Carriere moved to West Milford, New Jersey, and, in August 1971, formed a real estate brokerage firm under the name of N. & E. Carriere Realty, Inc. The principal office of the company was located in West Milford, New Jersey, and Mr. Carriere was listed as the broker and Mrs. Carriere as a salesperson. Apparently the policy was amended again to reflect Mrs. Carriere's change of address.

Sometime toward the end of 1972 Mr. and Mrs. Carriere separated as a result of marital discord. They sold one of the 1969 Ford Galaxy automobiles, the policy thereafter being amended to terminate coverage on that automobile. In December 1972 Mr. Carriere purchased a 1973 Ford LTD automobile and arranged for the policy to be amended to provide coverage for it and at the same time to designate him as the named insured in place of Mrs. Carriere. This was accomplished by an appropriate endorsement issued by plaintiff. Thereafter, on or about December 12, 1972, Mr. and Mrs. Carriere settled certain financial matters arising out of their separation and executed an agreement which, in part, provided for the liquidation of Mrs. Carriere's interest in the real estate brokerage firm. On January 7, 1973 Mrs. Carriere moved out of the marital residence and established her home in Brooklyn, New York. She took with her the 1969 Ford Galaxy which was still listed as a covered vehicle on Mr. Carriere's policy.

In June 1972 the New Jersey Automobile Reparation Reform Act (commonly known as the No Fault Law) (N.J.S.A. 39:6A-1 et seq.) was passed by the Legislature. This act required, among other things, that all insurers, including plaintiff, make available to their respective insureds on and after January 1, 1973 basic personal injury protection coverage as specified in N.J.S.A. 39:6A-4 and additional personal injury protection coverage as specified in N.J.S.A. 39:6A-10. In conjunction with this legislation, the Commissioner of Insurance (Commissioner) promulgated a minimum schedule of additional personal injury protection benefits (see N.J.A.C. 11:3-7.3) and required all insurers to notify their respective insureds of the availability of this new coverage. In accordance therewith plaintiff notified Mr. Carriere in writing of the promulgation of the new law and the options available to him for additional personal injury protection coverage. On or about January 16, 1973 plaintiff issued to Mr. Carriere a New Jersey Additional Personal Injury Protection Endorsement (Additional PIP) which provided additional loss of income benefits of $400 weekly, with a maximum total of $41,600, and additional essential service benefits of $20 a day, with a maximum total of $14,600. The Additional PIP endorsement attached to and forming part of Mr. Carriere's policy provided coverage to "(1) the named insured and his spouse if a resident of the same household."

On March 29, 1973 Mrs. Carriere was involved in an accident in Brooklyn, New York, while driving the 1969 Ford Galaxy, sustaining serious personal injuries as a result. She made claim for income continuation benefits under the Additional PIP endorsement attached to and forming part of Mr. Carriere's policy. Plaintiff denied liability and refused to pay any benefits to Mrs. Carriere, contending that she was not a resident of the same household as the named insured and did not sustain any loss of income because she was not employed at the time of the accident. Mrs. Carriere thereupon instituted suit against plaintiff in the Civil Court of the City of New York to recover income continuation benefits

under the endorsement, and on July 3, 1974 recovered a judgment in the total sum of $10,551. Plaintiff paid the judgment in full and thereafter continued to pay Mrs. Carriere income continuation benefits of $400 weekly until April 15, 1975, by which time it had paid her a ...


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