On appeal from Superior Court of New Jersey, Law Division, Morris County.
Allcorn, Morgan and Horn. The opinion of the court was delivered by Morgan, J.A.D.
Two insureds, Robert Tal and Mitchell Webb, appeal from a declaratory judgment in favor of their insurance carrier, Franklin Mutual Insurance Company (hereinafter "Franklin"), exonerating Franklin from liability on two homeowner's policies with respect to the death of one Thomas Flood because, according to the trial judge's findings, his death was "expected or intended" by the insureds within the meaning of the provision in each of the two policies excluding coverage for
f. . . . bodily injury . . . which is either expected or intended from the standpoint of the Insured. [Emphasis supplied]
The underlying event was a fight during the early morning hours of November 6, 1975 in which Thomas Flood, Jr., received injuries from a blow delivered by Robert Tal, from which Flood later died. The other insured, Mitchell Webb, was found to have participated in the events leading to the fatal blow, and on that basis to have expected or intended the result.
Flood's death, and the circumstances in which it occurred, spawned not only issues regarding insurance coverage but two
other proceedings as well. Prior to the declaratory judgment to be considered herein, a criminal proceeding against Robert Tal resulted in his conviction of involuntary manslaughter for the death of Thomas Flood. After the declaratory judgment, a civil action for Flood's wrongful death, brought by decedent's representative,*fn1 resulted in a plaintiff's verdict against both Webb and Tal, the Tal verdict being based upon negligence, and the verdict against Webb, being based upon both negligence and intentional conduct. Because Franklin was exonerated from coverage by the declaratory judgment, it did not participate in the liability trial.
Before confronting the propriety of the challenged declaratory judgment, we first address the most significant aspect of the case -- that the parties to the declaratory suit failed to join as a party the decedent's representative with respect to the action for Flood's wrongful death and with respect to the survival action on behalf of the decedent's estate. It was not until after this judgment and initiation of this appeal that decedent's representative became a party by way of intervention, and then only to establish that she was not bound by the declaratory judgment.
Whether decedent's representative is or is not bound by the declaratory judgment exonerating Franklin is an issue which, strictly speaking, is not before us. The binding effect of such a judgment should be decided only in a suit on the policies to collect the money judgments. Nevertheless, decedent's representative does presently have two money judgments of considerable magnitude against Webb and Tal and almost inevitably will seek to satisfy those judgments from the Franklin policies coverage of which is at issue on this appeal. The issue will have to be decided, the facts upon which the issue depends are undisputed, and all parties to this appeal have tacitly, at least,
acquiesced in having it resolved on a primary basis at the appellate level. Therefore, in the exercise of our original jurisdiction, we undertake to do so. R. 2:10-5.
Clearly, decedent's representative's contention that she is not bound by the judgment here under consideration is correct; no party contends otherwise. The failure to join decedent's representative to the declaratory suit robs the resulting judgment of any binding effect on her. Manifestly, it was the obligation of those seeking declaratory relief (in this matter both the insurance carrier and the insureds) to join "all persons having or claiming any interest which would be affected by the declaration . . .." N.J.S.A. 2A:16-56. One not a party thereto remains unaffected by any such judgment. N.J.S.A. 2A:16-57. Consequently, decedent's representative who now holds substantial money judgments against Webb and Tal resulting from the trial ...