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ESTATE OF LOUIS PENN v. AMALGAM. GEN. AGEN.

148 N.J. Super. 419 (1977)

372 A.2d 1124

ESTATE OF LOUIS PENN, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. AMALGAMATED GENERAL AGENCIES AND RICHARD-LEWIS AGENCY, DEFENDANTS, AND EMPIRE MUTUAL INSURANCE COMPANY, DEFENDANT-RESPONDENT AND CROSS-RESPONDENT, AND WESTERN WORLD INSURANCE COMPANY, DEFENDANT-APPELLANT.

Superior Court of New Jersey, Appellate Division.

Decided March 14, 1977.

Attorney(s) appearing for the Case

Mr. Marc L. Dembling argued the cause for appellant Western World Insurance Company (Messrs. Lieb, Teich & Berlin, attorneys; Mr. Jerome S. Lieb, of counsel and on the brief).

Mr. Martin N. Piper argued the cause for respondent and cross-appellant Estate of Louis Penn (Messrs. Brenman & Piper, attorneys).

Mr. Joseph S. Montalbano argued the cause for respondent and cross-respondent Empire Mutual Insurance Company.

Before Judges LORA, CRANE and MICHELS.

The opinion of the court was delivered by MICHELS, J.A.D.

The principal question raised by this appeal is whether a primary carrier owes to an excess carrier the same positive duty to take the initiative and attempt to negotiate a settlement within the policy coverage that it owes to its assured. The trial judge on cross-motions for summary judgment, held that the fiduciary duty imposed upon a carrier with respect to its assured by Rova Farms Resort v. Investors...

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