holding that where an intentional and negligent act are alleged in the same complaint "[t]here may be cases in which the interests of the carrier and the insured coincide so that the carrier can defend such an action with complete devotion to the insured's interest"
How later courts described this case
- holding that where an intentional and negligent act are alleged in the same complaint "[t]here may be cases in which the interests of the carrier and the insured coincide so that the carrier can defend such an action with complete devotion to the insured's interest"
- declining to accord preclusionary effect to the insured's conviction of atrocious assault and battery to establish the insured's intent to harm the victim and recognizing that the victim had an interest in the liability policy sufficient to be heard on questions of coverage and that he should not be estopped by a judgment entered in a proceeding begun after he was injured if he was not a party to it
- stating that the carrier was entitled to try the issue of whether the injuries in fact were within the policy exclusion for intentional acts
- stating that a claimant’s interest under N.J.S.A. 17:28-2 “is derivative of the insured’s (absent a statute providing otherwise)”
Written by the judges who cited it.
Distinguished
Distinguished by NJ Manufacturers Insurance Co. v. Brower, 161 N.J. Super. 293 (1978)
Burd, supra, relied upon by Geschke, is distinguishable and does not support a contrary conclusion.
The opinion
Jacobs, J.
(dissenting). The insurance carrier in effect refused to participate in the defense of the assured, either with or without reservation. The trial court found that this flat abandonment of the assured violated the broad policy *400 covenant to defend and subjected the carrier to responsibility for the ensuing consequences. In granting summary judgment against tbe carrier, the trial court accepted pertinent principles recently expressed in tbe full opinion of tbe California Supreme Court in Gray v. Zurich Ins. Co., 65 Cal. 2d 263 , 54 Cal. Rptr. 104 , 419 P. 2d 168 (1966). See also Lowell v. Maryland Casualty Company, 65 Cal. 2d 298 , 54 Cal. Rptr. 116 , 419 P. 2d 180 (1966); Missionaries of the Co. of Mary, Inc. v. Aetna Cos. & S. Co., 155 Conn. 104 , 230 A. 2d 21, 26 (1967); Boston Ins. Co. v. Maddux Well Service, 459 P. 2d 777, 779-80 (Wyo. Sup. Ct. 1969); cf. Farbstein & Stillman, “Insurance for the Commission of Intentional Torts,” 20 Hastings L. J. 1219, 1232-33 (1969); but cf. Keeton, “Insurance Law Rights at Variance With Policy Provisions,” 83 Harv. L. Rev. 961 , 970 n. 15 ( 1970). Since I believe that, under the particular circumstances presented here, application of those principles would more clearly and more justly fulfill the reasonable expectations of the assured in the purchase of his insurance policy with “Comprehensive Personal Liability Coverage” (cf. Gerhardt v. Continental Ins. Cos., 48 N. J. 291, 297-98 (1966)), I vote to affirm.