Environmental Ins. Declaratory Judgment Actions, In re

Page 278

149 N.J. 278

693 A.2d 844, 65 USLW 2751

In re ENVIRONMENTAL INSURANCE DECLARATORY JUDGMENT ACTIONS.

CIBA-GEIGY CORPORATION, Plaintiff-Appellant and Cross-Respondent, v. LIBERTY MUTUAL INSURANCE COMPANY, Insurance Company of North

America, Accident & Casualty Insurance Company of

Winterthur, Admiral Insurance Company, Aetna Casualty &

Surety Company, Agrippina Versicherungs-Aktiengesellschaft,

AIU Insurance Company, Alba General Insurance Company Ltd.,

Allianz Versicherungs-Aktiengesellschaft, American Home

Assurance Company, American Re-Insurance Company, American

Star Insurance Company, Andrew Weir Insurance Company Ltd.,

Anglo French Insurance Company Ltd., Anglo Saxon Insurance

Company Ltd., Argonaut Northwest Insurance Company,

Assicurazioni Generali Di Trieste E. Venezia S.P.A., Baloise

Fire Insurance Company, The Baloise Insurance Company of

America, Bellefonte Insurance Company, Bercanus Insurance

Company Limited, Bermuda Fire and Marine Insurance Company

Ltd., Birmingham Fire Insurance Company of Pennsylvania,

Bishopsgate Insurance Company Ltd., The British Commercial

Insurance Company Ltd., British National Life Insurance

Society Ltd., British & Overseas Insurance Company Ltd.,

Brittany Insurance Company Ltd., Bryanston Insurance Company

Limited, California Union Insurance Company, The Central

National Insurance Company of Omaha, CIA Agricola De Seguros

S.A., City General Insurance Company Ltd., Citizens Casualty

Company of New York, City Insurance Company, CNA Reinsurance

of London Limited, Colonia Versicherung Aktiengesellschaft,

Columbia Casualty Company, Compagnie Belge D'Assurances

Generales Incendie Accidents et Risques Divers, Compagnie

Europeenne D'Assurances Industrielles S.A., Continental

Casualty Company, Dart and Kraft Insurance Company Ltd.,

Dart Insurance Company Limited, Delta-Lloyd Non-Life

Insurance Company Ltd., The Dominion Insurance Company Ltd.,

The Drake Insurance Company Ltd., Economic Insurance Company

Ltd., Edinburgh Assurance Company Ltd., El Paso Insurance

Company Limited, Employers Mutual Casualty Insurance

Company, English and American Insurance Company Ltd.,

Eurinco Allgemeine Versicherungs A.G., European General

Reinsurance Company Ltd., European General Reinsurance

Company, Ltd., of Zurich, Excess Insurance Company Ltd.,

Excess Mutual Reinsurance Company, Federal Insurance

Company, Fidelidade Insurance Company, The Fidelity and

Casualty Company of New York, Fireman's Fund Insurance

Company, First State Insurance Company, Gerling-Konzern

Allegemeine Versicherungs-Aktiengesellschaft, Gibralter

Casualty Company, Granite State Insurance Company, Great

American Insurance Company, Guildhall Insurance Company

Ltd., Haftpflichtverband Der Deutschen Industrie V.A.G.,

Harbor Insurance Company, Hawk Insurance Company Ltd.,

Helvetia Accident Swiss Insurance Company Ltd., Helvetia

General Insurance Company Ltd., Highlands Insurance Company,

Home & Overseas Insurance Company, Ltd., The Home Insurance

Company, Insco Ltd., Insurance Company of State of

Pennsylvania, Integrity Insurance Company, Interstate Fire &

Casualty Company, Lexington Insurance Company, London and

Edinburgh General Insurance Company, Ltd., London and

Edinburgh Insurance Co., Ltd.--now Mercury Insurance

Holdings Ltd., The London & Overseas Insurance Company Ltd.,

Louisville Insurance Company Ltd., Ludgate Insurance Company

Ltd., Lumbermens Mutual Casualty Company,

Mead Reinsurance Corporation, The Mercantile and

General Reinsurance Company Ltd., Midland Insurance Company,

Minster Insurance Company Ltd., Mutual Reinsurance Company

Ltd., National Casualty Company, National Casualty Company,

Ltd., National Casualty Company, (of Detroit), National

Casualty Company of America Ltd., National Union Fire

Insurance Company of Pittsburgh, New England Insurance

Company, New London Reinsurance Company Limited, North

Atlantic Insurance Company Limited, Orion Insurance Company

Ltd., Pacific Insurance Company, Pine Top Insurance Company,

Prudential Reinsurance Company, Puritan Insurance Company,

for itself and as successor to the Manhattan Fire and Marine

Insurance Company by change of name, River Thames Insurance

Company Ltd., Republic Insurance Company, Royal Insurance

Company of America, Royal Scottish Insurance Company Ltd.,

Safety Mutual Casualty Corporation, Scottish Lion Insurance

Company Ltd., Southern American Insurance Company, Sovereign

Marine and General Insurance Company Ltd., The Sphere

Insurance Company Ltd., St. Helen's Insurance Company Ltd.,

St. Katherine Insurance Company Ltd., St. Paul Fire and

Marine Insurance Company, Stronghold Insurance Company

Limited, Swiss Reinsurance Company, Swiss Union General

Insurance Company Ltd., Switzerland General Insurance

Company Limited, Terra Nova Insurance Company Ltd., Trent

Insurance Company Ltd., Turegum Insurance Company, Twin City

Fire Insurance Company, Underwriters at Lloyd's London,

Unigard Mutual Insurance Company, Unionamerica Insurance

Company Ltd., United Standard Insurance Company Ltd., The

Victory Insurance Company Ltd., Walbrook Insurance Company

Ltd., "Wintethur" Swiss Insurance Company, World Auxiliary

Insurance Corporation, Ltd., Yasuda Fire & Marine Insurance

Company (U.K.) Limited, Yuval Insurance Company Ltd., Zurich

Insurance Company, Defendants,

and

Commercial Union Insurance Company, as successor to The

Ocean Accident & Guarantee Corporation, Ltd., American

Employers' Insurance Company, The Employers' Liability

Assurance Corporation, Ltd., Employers' Surplus Lines

Insurance Company, General Reinsurance Corporation, Allstate

Insurance Company, as successor-in-interest to Northbrook

Excess and Surplus Insurance Company, formerly Northbrook

Insurance Company, North Star Reinsurance Corporation, and

Zurich International Limited, Defendants-Respondents and

Cross-Appellants,

and

Century Indemnity Company (as successor to CCI Insurance

Company, which itself is the successor to the

Insurance Company of North America),

Defendant-Respondent.

GEI INTERNATIONAL INCORPORATED, a New Jersey corporation, (formerly known as Andrew Denholm, Inc.), and Andrew Denholm, Inc., Plaintiffs-Appellants, v. ST. PAUL FIRE and MARINE INSURANCE COMPANY, Federal

Insurance Company, Atlantic Mutual Insurance Company,

Northwestern National Insurance Company, Midland Insurance

Company, Chubb Group of Insurance Companies, Fireman's Fund

Insurance Co., Inc., Ideal Mutual Insurance Co., Inc., Orb

Holding Co., John Black, Robert Dederer, Frank Vanderhoof,

Metramatic Corporation, High Speed Checkweigher Inc.,

successor in interest to Metramatic Corporation, AG fur

Prazisionsinstrumente and New Jersey Property/Liability

Guaranty Association, Defendants.

John BLACK, Robert Dederer and Frank Vanderhoof,

individually and as former corporate officers, directors and

shareholders of NGR Design and Manufacturing Co., Inc. and

Metal Detectors, Inc., Metramatic Corporation and ORB

Holding Co., Defendants and Third Party Plaintiffs, v. FIREMAN'S FUND INSURANCE CO., INC., St. Paul Mercury

Insurance Company, Northwestern National Insurance

Co., and New Jersey Property/Liability

Guaranty Association,

Third-Party Defendants.

Supreme Court of New Jersey.

Argued Sept. 9, 1996.

Decided May 12, 1997.

Robert Mahoney, Roseland, for plaintiffs-appellants GEI International Incorporated, etc., et al. (Friedman Siegelbaum, attorneys Mr. Mahoney and James M. Andrews, of counsel, and on the brief).

Vincent R. FitzPatrick, Jr., New York City, a member of the New York bar, for plaintiff-appellant and cross-respondent Ciba-Geigy Corporation (Hayden, Perle & Silber, attorneys).

James W. Christie, III, for defendants-respondents and cross-appellants Commercial Union Insurance Company, as successor to The Ocean Accident & Guarantee Corporation, Ltd.; The Employers' Liability Assurance Corporation, Ltd.; American Employers' Insurance Company; and Employers' Surplus Lines Insurance Company (Christie, Pabarue, Mortensen and Young, Cherry Hill, attorneys).

Stefano V. Calogero, Parsippany, for defendants-respondents and cross-appellants General Reinsurance Corporation, North Star Reinsurance Corporation, Allstate Insurance Company, as successor in interest to Northbrook Excess and Surplus Insurance Company, formerly Northbrook Insurance Company and Zurich International Limited (Cuyler Burk, attorneys).

Paul R. Koepff, New York City, a member of the New York bar, for defendant-respondent Century Indemnity Company (as successor to CCI Insurance Company, which itself is the successor to the Insurance Company of North America) (Graham, Curtin & Sheridan, attorneys).

Paul E. Breene, Newark, submitted briefs on behalf of amicus curiae, New Jersey Public Risk Managers' Association (Anderson Kill Olick & Oshinsky, attorneys; Mr. Breene and Jennifer D. Marell, of counsel).

The opinion of the Court was delivered by

POLLOCK, J.

These appeals pose the issue whether a constitutional right to a jury trial exists in an action for a declaratory judgment concerning claims against insurers for breach of contract and the recovery of future remediation costs. Resolution of the issue depends on whether such an action is more like a traditional common-law action for damages or one for equitable relief.

In Ciba-Geigy v. Liberty Mutual Insurance Co., plaintiff Ciba-Geigy Corporation ("Ciba-Geigy") sued its insurers seeking a judgment declaring that the insurers are obligated to defend and indemnify it for future costs of environmental remediation. Ciba-Geigy also seeks compensatory damages for remediation costs that it has already incurred. The Law Division granted Ciba-Geigy's motion, in which the insurers initially joined, for a jury trial.

On March 6, 1996, defendant Century Indemnity Company ("Century"), changed its position and moved for a trial by the court without a jury. Defendants Unigard Security Insurance Company and Great American Insurance Company joined Century's motion. Ciba-Geigy and five other...