Fenwick MacHinery, Inc. v. A. Tomae & Sons, Inc.

Pashman, J.,

dissenting. I join fully in the dissenting opinion .which Justice Handler has filed in this case. The insurance contract here at issue was clearly ambiguous as to whether coverage was provided for the leased equipment which was destroyed. The judgment of the Appellate Division should therefore be affirmed.

I only wish to add a few words in order to clarify the basis underlying the majority’s holding. The majority correctly notes that the sole dispute in this appeal involves the insurance company and its broker, the insured having already been guaranteed compensation for his loss. Inasmuch as both, parties to the controversy are insurance experts, it appears to hold that there is no need to call into play the protective rules and mechanisms which we have carefully designed to guarantee maximum coverage to the public. See, e. g., Perrine v. Prudential Ins. Co., 56 N. J. 120, 126 (1970); Allen v. Metropolitan Life Ins. Co., 44 N. J. 294, 305 (1965); Bauman v. Royal Indem. Co., 36 N. J. 12, 25 (1961); Mazzilli v. Accident & Cas. Ins. Co., 35 N. J. 1, 7-8 (1961).

*593Although I disagree with its conclusions in this regard, it is clear that should a subsequent controversy arise involving a direct dispute between an insured member of the public and the insurer, the latter would not likely prevail. In such a case, the "reasonable expectations” test would unquestionably be applicable. See, e. g., Perrine v. Prudential Ins. Co., supra; Allen v. Metropolitan Life Ins. Co., supra; Bauman v. Royal Indem. Co., supra; Kievit v. Loyal Protective Life Ins. Co., 34 N. J. 475, 482 (1961). There can be no doubt but that the contract clauses here at issue are "ambiguous” insofar as the average consumer of insurance is concerned.