Deblon v. Beaton

Deblon v. Beaton

Opinion

 [*347]  [**173]   Christina Deblon, widow of Charles Deblon, instituted suit against the owner and driver of a motor vehicle in which her decedent was a passenger, charging negligence and claiming per quod damages individually, Survival Act damages as general administratrix of decedent's estate, and Wrongful Death Act damages as administratrix ad prosequendum. Allstate Insurance Company's ["Allstate"] liability policy, with a $ 50,000 limit of bodily injury liability for one person, covered the named insured owner, Catherine Foley, and also covered the driver, Leslie Beaton, under the usual omnibus clause. Leslie Beaton was also the named insured under a liability policy issued by Jersey Insurance Company of New York of the Pacific of New York Group ("Jersey"), which policy, if effective, would be "excess insurance" up to its $ 10,000 limit, after the primary [***2]  Allstate insurance, under the standard "other insurance" clause. Jersey apparently denies coverage and has filed a disclaimer, for reasons not germane to the  [*348]  present inquiry, but if its policy is effective, it is only as excess insurance and there is no question of mutually repugnant excess coverage clauses as in Cosmopolitan Mut. Ins. Co. v. Continental Cas. Co., 28 N.J. 554 (1959).

 [**174]  Christina Deblon, in all three capacities as a plaintiff, executed a "covenant not to sue on claim," reciting a consideration of $ 46,500 and purporting to release only Leslie Beaton, Catherine Foley and Allstate Insurance Company while "reserving unto her as general administratrix and administratrix ad prosequendum of the estate of Charles Deblon the right to proceed against * * * the Jersey Insurance Company of New York * * *." Additional language of the instrument stated that "Christina Deblon in no way releases (Jersey) and no rights are waived against said parties [Beaton and Foley] as named assureds under * * * said policy * * *."

Plaintiff originally sought an order construing the covenant as effectively preserving her rights against defendants Beaton and [***3]  Foley as named assureds under the Jersey policy, and this court directed that Jersey be added as a party defendant and indispensable to such a binding determination. R.R. 4:32-1 and 4:34. A count was added to the complaint and directed to Jersey, resulting in the latter's motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to R.R. 4:12-2(e). Matters outside the pleadings, such as insurance policies, have been presented to the court by the parties; there is no genuine issue as to any material fact and the questions presented are matters of law, so that the motion under R.R. 4:12-2(e) is treated as one for summary judgment under R.R. 4:58.

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