On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
King, Simpson and Scalera. The opinion of the court was delivered by Scalera, J.s.c. (temporarily assigned). Simpson, J.A.D., dissenting.
In this case we are asked to hold that a personal injury claimant may sue a liability carrier for "bad faith" without an assignment of that claim from the carrier's insured. Plaintiff appeals from the Law Division judge's order granting summary judgment and dismissing the complaint. We reaffirm the principle expressed by us in Biasi v. Allstate Ins. Co. 104 N.J. Super. 155 (App.Div.1969), certif. den. 53 N.J. 511 (1969), that the personal injury claimant may not sue the carrier to recover the excess verdict beyond the coverage without an assignment of the claim from the insured.
On January 1, 1982 plaintiff, Peggy Anne Murray, was involved in a motor vehicle accident when her car collided with a motor vehicle owned by William B. Olsen and operated by Thomas W. Olsen. As a result, plaintiff instituted a suit for personal injuries. At the time of the accident defendant Allstate had in effect a policy of insurance issued to William B. Olsen which covered the operation of the vehicle by Thomas W. Olsen. In accordance with the terms of the policy, Allstate tendered a defense to both Olsens.
On June 14, 1984 a jury trial resulted in a verdict in favor of plaintiff and against Thomas W. Olsen only in the amount of $75,000. Allstate undertook to prosecute an appeal of that result on behalf of its insured. This court heard numerous motions addressed to that appeal of the tort action and ultimately entered an order which provided that,
A stay of the judgment pending appeal is granted conditioned upon appellant's posting a supersedeas bond in the sum of $103,880. Plaintiff shall not be entitled to levy, execute or otherwise pursue the bond for any sums over and above the contractual obligation of the Allstate Insurance Company under appellant's automobile liability insurance policy unless and until Allstate's liability for an excess judgment is established in a "bad faith" suit.
Eventually defendant did file the bond required and the appeal proceeded. Ultimately this court affirmed the jury's verdict for $75,000.
During the pendency of the appeal of the tort action, plaintiff filed the instant suit against Allstate, its adjuster, Naughton, and several unidentified employees of Allstate identified as John Does. In that complaint, plaintiff essentially asserted that Allstate and its employees had "failed to negotiate [a settlement] in good faith on behalf of Thomas W. Olsen" thus entitling plaintiff to a judgment for the entire amount of the jury's verdict in the tort action plus "costs of suit and attorneys fees."*fn1
Defendants brought a motion for summary judgment contending that they were entitled to a dismissal because plaintiff had not secured from Allstate's insured, Thomas W. Olsen, a written assignment to prosecute the claim. Plaintiff opposed the motion asserting a right to bring the action independent of any assignment and also submitted an affidavit by Thomas W. Olsen's personal attorney in which he said that his client had
indicated a willingness to provide such an assignment. However, Olsen has since left the State and cannot be located. No assignment has been obtained. Following oral argument, the Law Division judge granted defendant's motion for summary judgment, relying upon this court's decision in Biasi v. Allstate Ins. Co., 104 N.J. Super. 155 (App.Div.1969), certif. den. 53 N.J. 511 (1969).
Plaintiff here asserts that the trial court erred because,
Point I . . . [T]he court erred when it refused to abide the appellate division's prior ruling on this matter in holding that the bad faith suit could be instituted.
Point II The lower court erred when it held that plaintiff could not proceed in this matter unless it had a written assignment from the insured.
Point III. [T]he court erred when it dismissed the plaintiff's complaint for failure to state a claim upon ...