Werner Indus., Inc. v. First State Ins., 548 A.2d 188 (N.J. 1988). · Go Syfert
Werner Indus., Inc. v. First State Ins., 548 A.2d 188 (N.J. 1988). Cases Citing This Book View Copy Cite
303 citation events (107 in the last 25 years) across 19 distinct courts.
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 49 distinct citers. How cited ↗
examined Limited Hoffman Construction Co. v. Fred S. James & Co. (3×)
Or. Ct. App. · 1991 · confidence low
Co., 112 N.J. 30 , 548 A.2d 188 (1988) (declarations described coverage in excess over "amount recoverable" but additional language in policy limited insurer's liability to excess over the "limits of liability indicated beside the underlying insurance"); Wurth v. Ideal Mut.
discussed Cited as authority (verbatim quote) VALEANT PHARMACEUTICALS INTERNATIONAL, INC. v. AIG INSURANCE COMPANY OF CANADA
D.N.J. · 2022 · quote attribution · 1 verbatim quote · confidence high
even an unambiguous contract has been interpreted contrary to its plain meaning so as to fulfill the reasonable expectations of the insured... .
discussed Cited as authority (verbatim quote) THE PLASTIC SURGERY CENTER, P.A. v. CIGNA HEALTH AND LIFE INSURANCE COMPANY
D.N.J. · 2021 · quote attribution · 1 verbatim quote · confidence high
the fundamental principle of insurance law is to fulfill the objectively reasonable expectations of the parties.
discussed Cited as authority (verbatim quote) MICHAEL ABBOUD VS. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA(L-680-14, MONMOUTH COUNTY AND STATEWIDE) (2×) also: Cited "see"
N.J. Super. Ct. App. Div. · 2017 · quote attribution · 1 verbatim quote · confidence high
at times, even an unambiguous contract has been interpreted contrary to its plain meaning so as to fulfill the reasonable expectations of the insured . . . .
examined Cited as authority (verbatim quote) Murray v. United of Omaha Life Insurance (2×) also: Cited as authority (quoted)
3rd Cir. · 1998 · quote attribution · 2 verbatim quotes · confidence high
at times, even an unambiguous contract has been interpreted contrary to its plain meaning so as to fulfill the reasonable expectations of the insured.
examined Cited as authority (quoted) Bromfeld v. Harleysville Insurance Companies (2×)
N.J. Super. Ct. App. Div. · 1997 · quote attribution · 2 verbatim quotes · confidence low
at times, even an unambiguous contract has been interpreted contrary to its plain meaning so as to fulfill the reasonable expectations of the insured....
examined Cited as authority (quoted) Doto v. Russo (2×)
N.J. · 1995 · quote attribution · 2 verbatim quotes · confidence low
at times, even an unambiguous contract has been interpreted contrary to its 557 plain meaning so as to fulfill the reasonable expectations of the insured____
cited Cited as authority (rule) Mist Pharmaceuticals, LLC v. Berkley Insurance Company
N.J. · 2026 · confidence medium
Co., 112 N.J. 30, 35-36 (1988).
cited Cited as authority (rule) Barry Ingram v. Farmers Insurance Company of Flemington
N.J. Super. Ct. App. Div. · 2026 · confidence medium
Co., 112 N.J. 30, 35 (1988).
cited Cited as authority (rule) J.H. v. the Lawrenceville School
N.J. Super. Ct. App. Div. · 2026 · confidence medium
Co., 112 N.J. 30, 37 (1988) (quoting Wurth v. Ideal Mut.
cited Cited as authority (rule) Wcpp Risk Purchasing Group, Inc. v. Lexington Insurance Company
N.J. Super. Ct. App. Div. · 2025 · confidence medium
A-0928-23 9 Co., 112 N.J. 30, 35 (1988).
discussed Cited as authority (rule) CIS MANAGEMENT, INC. v. COMMERCE & INDUSTRY INSURANCE COMPANY (2×) also: Cited "see, e.g."
D.N.J. · 2025 · confidence medium
Co., 548 A.2d 188, 192 (N.J. 1988) (“Were this a policy of personal insurance coverage, we might be more inclined to accept [a more expansive reading of coverage.] But this is a policy A.2d at 1013 (citing Voorhees v. Preferred Mut.
cited Cited as authority (rule) ECB USA, Inc. v. Chubb Insurance Company of New Jersey
11th Cir. · 2024 · confidence medium
Co., 548 A.2d 188, 192 (N.J. 1988))).
cited Cited as authority (rule) ECB USA, Inc. v. Chubb Insurance Company of New Jersey
11th Cir. · 2024 · confidence medium
Co., 548 A.2d 188, 192 (N.J. 1988))).
discussed Cited as authority (rule) MONTACHEM INTERNATIONAL, INC. v. FEDERAL INSURANCE COMPANY
D.N.J. · 2023 · confidence medium
Co., 112 N.J. 30, 37 (1988), but attempt to read “the offending section” in the context “of the entire policy in order to determine whether harmony can be found between the alleged ambiguous language and the remainder of the policy,” Morrison, 381 N.J.
discussed Cited as authority (rule) AC OCEAN WALK, LLC v. AMERICAN GUARANTEE (L-0703-21, ATLANTIC COUNTY AND STATEWIDE) (2×)
N.J. Super. Ct. App. Div. · 2022 · confidence medium
Co., 112 N.J. 30, 36 (1988)).
discussed Cited as authority (rule) CTC TRANSPORTATION INSURANCE SERVICES, LLC v. QBE INSURANCE CORPORATION
D.N.J. · 2021 · confidence medium
Co., 112 N.J. 30, 38 (1988) (declining to construe policy in favor of insured where the policy covered “commercial risks procured through a broker, and thus involved parties on both sides of the bargaining table who were sophisticated with regard to insurance”).
discussed Cited as authority (rule) POLIZZI v. LIBERTY MUTUAL FIRE INSURANCE COMPANY
D.N.J. · 2021 · confidence medium
Co., 112 N.J. 30, 37 (1988), but rather, attempt to read “the offending section” in the context“of the entire policy in order to determine whether harmony can be found between the alleged ambiguous language and the remainder of the policy,” Morrison, 381 N.J.
cited Cited as authority (rule) Dc2ny, Inc. v. Academy Bus, LLC
D.D.C. · 2020 · confidence medium
Co., 548 A.2d 188, 192 (N.J. 1988) (quotations omitted). 1.
cited Cited as authority (rule) PORTO PAVINO, LLC v. LEGACY COLD STORAGE, LLC
D.N.J. · 2020 · confidence medium
Co., 548 A.2d 188, 191 (N.J. 1988).
cited Cited as authority (rule) JOSEPH J. TOLOTTI VS. UNITED SERVICES AUTOMOBILE ASSOCIATION, ETC. (L-0607-17, CUMBERLAND COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2020 · confidence medium
Co., 112 N.J. 30, 35 (1988).
cited Cited as authority (rule) DANIEL M. YABLONSKY VS. ENCOMPASS INSURANCE COMPANY OF NEW JERSEY (L-1974-14, MORRIS COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2019 · confidence medium
Co., 112 N.J. 30, 35 (1988).
cited Cited as authority (rule) EVANSTON INSURANCE COMPANY VS. A&R HOMES DEVELOPMENT, LLC (L-4547-16, HUDSON COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2019 · confidence medium
Co., 112 N.J. 30, 35-36 (1988)).
cited Cited as authority (rule) Oxford Realty Group Cedar v. Travelers Excess and Surplus Lines Company (077617)
N.J. · 2017 · confidence medium
Co., 112 N.J. 30, 38 (1988).
cited Cited as authority (rule) Oxford Realty Group Cedar v. Travelers Excess and Surplus Lines Company (077617)
N.J. · 2017 · confidence medium
Co., 112 N.J. 30, 38 (1988).
cited Cited as authority (rule) Alexander Bardis v. Kitty Stinson
N.J. Super. Ct. App. Div. · 2016 · confidence medium
Co., 112 N.J. 30, 35-36 (1988).
cited Cited as authority (rule) Alexander Bardis v. Kitty Stinson
N.J. Super. Ct. App. Div. · 2016 · confidence medium
Co., 112 N.J. 30, 35-36 (1988).
discussed Cited as authority (rule) Landmark Insurance Company v. NIP Group
Ill. App. Ct. · 2011 · confidence medium
Under this doctrine, “if an insured’s ‘reasonable expectations’ contravene the plain meaning of a policy, even its plain meaning can be overcome.” Voorhees, 607 A.2d at 1260 (quoting Werner Industries v. First State Insurance Co., 548 A.2d 188, 191 (N.J. 1988).
cited Cited as authority (rule) Ayala v. ASSURED LENDING CORPORATION
D.N.J. · 2011 · confidence medium
Co., 112 N.J. 30 , 548 A.2d 188, 191 (1988) (internal quotation and citation omitted).
discussed Cited as authority (rule) G-I Holdings, Inc. v. Reliance Insurance
3rd Cir. · 2009 · confidence medium
Co., 112 N.J. 30 , 548 A.2d 188, 192 (1988). 16 Any knowledge of G-I that *257 Hartford had taken over claims administration for Reliance should not reasonably have caused G-I to expect coverage from Hartford for the entire policy period.
cited Cited as authority (rule) National Union Fire Ins. v. Miss. Ins. Guar. Ass'n
Miss. · 2008 · confidence medium
Co., 112 N.J. 30 , 548 A.2d 188, 189 (1988); Rapid City Reg'l Hosp., Inc. v. S.D.
discussed Cited as authority (rule) Hardy Ex Rel. Dowdell v. Abdul-Matin
N.J. Super. Ct. App. Div. · 2008 · confidence medium
The Court continued: "`Objectively reasonable' expectations `may govern even in the absence of ambiguity, in recognition of the generally one-sided nature of insurance contracts.'" Id. at 250, 649 A. 2d 1272 (quoting Clegg v. N.J.
cited Cited as authority (rule) Newport Associates Development Co. v. Travelers Indemnity Co.
3rd Cir. · 1998 · confidence medium
Co., 112 N.J. 30 , 548 A.2d 188, 191 (N.J.1988); see also Sparks v. St.
cited Cited as authority (rule) Oritani Savings & Loan Ass'n v. Fidelity & Deposit Co.
3rd Cir. · 1993 · confidence medium
Co., 112 N.J. 30 , 548 A.2d 188, 192 (1988) (per curiam); McNeilab, 645 F.Supp. at 545-46 .
cited Cited as authority (rule) Oritani Savings And Loan Association v. Fidelity And Deposit Company Of Maryland
3rd Cir. · 1993 · confidence medium
Co., 112 N.J. 30 , 548 A.2d 188, 192 (1988) (per curiam); McNeilab, 645 F.Supp. at 545-46 .
discussed Cited as authority (rule) Reliance Ins. v. Armstrong W. Ind. (2×)
N.J. Super. Ct. App. Div. · 1992 · confidence medium
Co., 112 N.J. 30, 38 [ 548 A. 2d 188 ] (1988) and Zuckerman v. Nat.
discussed Cited as authority (rule) Vargas v. Hudson County Board of Elections
3rd Cir. · 1991 · confidence medium
Co., 112 N.J. 30 , 548 A.2d 188, 190-91 (1988), the opinion referred at one point to the “objectively reasonable expectations of the parties,” but later in the same paragraph referred to the “reasonable expectations of the insured.” Obviously, the two are not the same.
cited Cited as authority (rule) CPC International, Inc. v. Northbrook Excess & Surplus Insurance
D.R.I. · 1991 · confidence medium
Co., 112 N.J. 30 , 548 A.2d 188, 191 (1988).
cited Cited as authority (rule) Leksi, Inc. v. Federal Insurance
D.N.J. · 1990 · confidence medium
Co., 112 N.J. 30, 35 , 548 A.2d 188, 190 (1988) (citation omitted).
cited Cited as authority (rule) STATE, DEP v. Signo Trading Intern.
N.J. Super. Ct. App. Div. · 1989 · confidence medium
Co., 112 N.J. 30, 35-36 (1988); Rao v. Universal Underwriters Ins.
cited Cited as authority (rule) Scarfi v. Aetna Cas. & Sur. Co.
N.J. Super. Ct. App. Div. · 1989 · confidence medium
Co., 112 N.J. 30, 35-36 (1988); Rao v. Universal Underwriters Ins.
cited Cited as authority (rule) Rapid City Regional Hospital, Inc. v. South Dakota Insurance Guaranty Ass'n
S.D. · 1989 · confidence medium
Co., 112 N.J. 30, 37 , 548 A.2d 188, 191 (1988) (citation omitted).
discussed Cited "see" Paul Revere Life Ins. Co. v. Haas (2×)
N.J. Super. Ct. App. Div. · 1993 · signal: see · confidence high
See Werner, 112 N.J. at 35 , 548 A. 2d 188 ; Altman, 795 F. Supp. at 223 .
examined Cited "see" Clegg v. Auto. Full Underwriting (3×)
N.J. Super. Ct. App. Div. · 1992 · signal: see · confidence high
See id., 112 N.J. at 35-36 , 548 A. 2d 188 . *640 Given the discretionary nature of UIM coverage, a purchaser would reasonably and objectively expect that he is buying such protection up to the declared limits primarily for himself and his resident spouse.
discussed Cited "see" Oritani Savings & Loan Ass'n v. Fidelity & Deposit Co. (2×)
D.N.J. · 1990 · signal: see · confidence high
See Werner, 112 N.J. at 39 , 548 A.2d 188 .
Retrieving the full opinion text from the archive…
Werner Industries, Inc., a New Jersey Corporation, Plaintiff-Respondent,
v.
First State Insurance Company, a Delaware Corporation, Defendant-Appellant; The Rice Agency, a New Jersey Corporation, Defendant and Third Party Plaintiff, v. Weghorn International, Inc., Third Party Defendant
Supreme Court of New Jersey.
Oct 11, 1988.
548 A.2d 188
Donald J Volkert, Jr., argued the cause for appellant (Siff, Rosen & Parker, attorneys; Robert F. Walsh, on the briefs)., Peter R. Bray argued the cause for respondent {Cole, Geaney, Yamner & Byrne, attorneys).
Handler.
Cited by 126 opinions  |  Published
3 passages pin-cited by 4 cases
Pinpoint authority: #35,541 of 633,719
Citer courts: Third Circuit (2) · Supreme Court of New Jersey (2) · New Jersey Superior Court App … (2)

Lead Opinion

PER CURIAM.

The question in this case is whether the coverage under an excess “umbrella” liability insurance policy must “drop down” to become the first line of coverage for risks covered by the primary liability insurance carrier in the event of the primary carrier’s insolvency. We hold that the language of the excess policy here does not call for that result, and reverse the contrary ruling of the court below.

I

The facts of this case are quite simple. Werner Industries, Inc. (Werner) bought products liability insurance from two sources through the Rice Agency, an insurance broker. Werner purchased the first line of products liability coverage of $500,000 for bodily injury and $250,000 for property damage from Ambassador Insurance Company (Ambassador). Werner also bought an excess policy from First State Insurance Company (First State) to cover liability in excess of the amount set forth on the Ambassador policies. Under normal circumstances, Werner’s personal injury insurance coverage from both its[*33] primary policy, with Ambassador, and its “umbrella” policy,[1] with First State, could be represented schematically by this diagram:

$ 3,000,000 First State's risk $ 500,000 Ambassador's coverage

Unfortunately, Ambassador has become insolvent. Under the New Jersey Surplus Lines Insurance Guaranty Fund Act (Guaranty Fund), N.J.S.A. 17:22-6.70 to -6.83, Werner Industries is provided with coverage in the amount of $300,000. (At the time of this decision, the Guaranty Fund has insufficient funding and is only paying 40% of all claims, with a promise to pay the balance in the future if funding permits.) Several personal injury suits have been brought against Werner Industries, with a potential liability well in excess of the Guaranty Fund. Before us, Werner argues that under the umbrella or excess policy First State is obligated to provide the coverage[*34] between what the Guaranty Fund will pay, $300,000, and what would have been provided under the primary policy if Ambassador had not become insolvent, i.e., an additional $200,000 of coverage. (Under the Guaranty Fund as currently funded, Werner would receive only 40% of $300,000, or $120,000, thus requiring an additional $380,000 of coverage.) First State contends that it is obligated to pay only sums in excess of the amount shown on the underlying policy — in this case, sums in excess of $500,000 for a personal injury claim up to an aggregate maximum of $3 million.

In an action for declaratory judgment, plaintiff asserted that the policy “language requires First State to assume the risk of the primary insurer’s insolvency and it should be required to pay, starting with the first dollar, any judgment entered against Werner.” On cross-motions for summary judgment, the Law Division found that the insuring agreement as written provided coverage for the ultimate net loss only in excess of the amount of underlying insurance listed on the schedule of the First State policy. The policy itself, the Law Division observed, “is not ambiguous merely because two words, read without reference to any other provisions in the policy, suggest an ambiguity.” The policy states that the company shall be liable for the ultimate net loss only in excess of the greater of (a) an amount equal to the limits of liability indicated on the schedule of other coverage (here the $500,000 policy of Ambassador) or (b) $10,000 for other risks that are not covered by the Ambassador policy. (The risks in dispute are clearly covered by the Ambassador policy.) The Law Division thus concluded that “it is plain that the parties contemplated that First State would not be obligated to make any payment until the first $500,000.00 for personal injury or $250,000.00 for property damage was paid out from some other source.”

The Appellate Division reversed the trial court and remanded for entry of judgment in favor of Werner. 217 N.J.Super. 436 (1987). It found that the language in the policy describing First State’s umbrella coverage as “ ‘in excess of the amount recov[*35] erable under the underlying insurance’ (emphasis added)” is “substantially ambiguous” and “can reasonably be interpreted to expose [the excess carrier] to liability for amounts which the insured is not able to recover from the underlying insurer because of its insolvency.” Id. at 444-45. The referenced language appeared on the “Declarations” page of the First State policy, that is, the page that contains the numerical limits of liability. As noted, the Law Division relied on the insuring agreement itself, which provided that the company would be liable for the loss only in excess of the “limits of liability indicated beside the underlying insurance.”[2] The Appellate Division, observing that “the declaration page is set forth in bold face print in contrast to the insuring agreement,” found the declaration and agreement language to be “clearly inconsistent” and resolved that perceived ambiguity against the insurer. Id. at 446.

II

The fundamental principle of insurance law is to fulfill the objectively reasonable expectations of the parties. See, e.g., Zuckerman v. National Union Fire Ins. Co., 100 N.J. 304 (1985). Nevertheless, “[t]he recognition that insurance policies are not readily understood has impelled courts to resolve ambiguities in such contracts against the insurance companies.” Sparks v. St. Paul Ins. Co., 100 N.J. 325, 336 (1985) (citations omitted). At times, even an unambiguous contract has been[*36] interpreted contrary to its plain meaning so as to fulfill the reasonable expectations of the insured:

The interpretation of insurance contracts to accord with the reasonable expectations of the insured, regardless of the existence of any ambiguity in the policy, constitutes judicial recognition of the unique nature of contracts of insurance. By traditional standards of contract law, the consent of both parties, based on an informed understanding of the terms and conditions of the contract, is rarely present in insurance contracts. W.D. Slawson, “Standard Form Contracts and Democratic Control of Lawmaking Power,” 84 Harv.L.Rev. 529, 539-41 (1971); R. Keeton, Insurance Law 350-52 (1971). Because understanding is lacking, the consent necessary to sustain traditional contracts cannot be presumed to exist in most contracts of insurance. Such consent can be inferred only to the extent that the policy language conforms to public expectations and commercially reasonable standards. See W.D. Slawson, supra, 84 Harv.L.Rev. at 566; R. Keeton, supra, at 350-52. In instances in which the insurance contract is inconsistent with public expectations and commercially accepted standards, judicial regulation of insurance contracts is essential in order to prevent overreaching and injustice. R. Keeton, supra, at 350-52; R. Keeton, "Insurance Law Rights at Variance with Policy Provisions,” 83 Harv.L.Rev. 961, 967 (1970). [Sparks, supra, 100 N.J. at 338.]

We agree with the Law Division that taken in its entirety the language of the policy is plain in its meaning. It does not provide drop-down coverage in the event of the primary insurer’s insolvency. We also conclude on this record that, so interpreted, the policy is not “inconsistent with public expectations [or] commercially accepted standards.”

We recognize that some courts have reached the contrary conclusion. Massachusetts has held (at least in the case of personal-line coverage of an individual) that when the policy does not explicitly confront the consequences of insolvency, and the policy provides for drop-down coverage when the primary policy’s underlying limit is “reduced,” the excess carrier’s responsibility should drop down to fulfill the reasonable expectations of a hypothetical insured. Massachusetts Insurers Insolvency Fund v. Continental Casualty Co., 399 Mass. 598, 506 N.E.2d 118 (1987). Chief Justice Marshall of Georgia, having thoroughly canvassed the varying authorities, denied drop-down coverage in the case before his court, relying however on a narrow distinction in that policy requiring that “other insurance,” but not the “underlying insurance,” be “collectible”[*37] before the excess carrier be obligated to indemnify. United States Fire Ins. Co. v. Capital Ford Truck Sales, Inc., 257 Ga. 77, 355 S.E.2d 428, 433 (1987). Using similar reasoning, the Appellate Division in our case emphasized that the Declarations page of the policy referred to First State’s liability being “ ‘in excess of the amount recoverable under the underlying insurance’ (emphasis added).” 217 N.J.Super. at 444.

Other courts, however, have emphasized that courts should not focus “on one sentence of th[e] policy’s ‘Conditions’ section * * * to the exclusion of the balance of the contract. Such an interpretation is distorted and legally inappropriate.” Wurth v. Ideal Mut. Ins. Co., 34 Ohio App.3d 325, 518 N.E.2d 607, 612 (1987) (excess liability carrier not required to drop down to cover losses indemnified by insolvent primary carrier); see also Pergament Distributors, Inc. v. Old Republic Ins. Co., 128 A.D.2d 760, 513 N. Y.S.2d 467 (A.D.1987) (limits of liability that referred to sum in excess of amounts “covered” by underlying insurance did not signify collectibility).

In the last analysis, a “policy that fulfills the reasonable expectations of the insured with respect to the scope of coverage” is valid and enforceable. Zuckerman v. National Union Fire Ins. Co., supra, 100 N.J. at 324. The history of this litigation illuminates the expectations of the parties:

(1) Werner initiated this action because it wanted to be certain that First State was obligated to provide coverage “above the limits of the primary carrier.” We can only interpret this language as meaning solely those losses in excess of the $500,000 Ambassador policy. In the action Werner also sought damages from its commercial insurance broker, the Rice Agency, for negligently or fraudulently placing the primary insurance coverage with Ambassador.

(2) First State stipulated to its coverage in excess of the Ambassador policy and sought a discontinuance of Werner’s action against it. Werner could have continued its suit against its insurance broker. However, Werner then shifted its tactics[*38] and contended that the excess liability policy required First State to cover losses in excess of the $300,000 available from the Guaranty Fund.

(3) However, Werner’s strategy before the trial court was to contend that due to the Guaranty Fund’s insufficient funding, First State was “required to pay, starting with the first dollar, any judgment entered against Werner” in pending personal injury litigation, less any amount eventually paid by the Guaranty Fund.

It is difficult for us to see in this scenario of events anything other than a litigation strategy designed to make the best of a bad situation. We say this without any criticism, but merely to point out that on this record we cannot conclude that it was within the commercial expectations of Werner Industries that its umbrella carrier was to be its primary carrier in case of that carrier’s insolvency.

In other circumstances, “[b]ecause insurance contracts are contracts of adhesion, the terms of which are not customarily bargained for, courts have a special responsibility to prevent the marketing of policies that provide unrealistic and inadequate coverage.” Sparks v. St. Paul Ins. Co., supra, 100 N.J. at 341. Were this a policy of personal insurance coverage, we might be more inclined to accept the Appellate Division’s view as a matter of public policy. After all, a line in the policy would cover the issue. But this is a policy covering commercial risks procured through a broker, and thus involved parties on both sides of the bargaining table who were sophisticated with regard to insurance.

Because, in our view, the policy here provided neither unrealistic nor inadequate coverage, and because there has been no showing whatsoever that this policy did not meet Werner’s expectations, we reverse. Application of canons of construction dictating interpretation against a drafter “should be sensible and in conformity with the expressed intent of the parties.” Broadway Maintenance Corp. v. Rutgers, 90 N.J. [*39] 253, 271 (1982). Such canons “should not to be used as excuse to read into a private agreement that which is not there, and that which people dealing fairly with one another could not have intended.” Tomaiuoli v. United States Fidelity and Guar. Co., 75 N.J.Super. 192, 207 (App.Div.1962). Our goal always is to “justly fulfill the reasonable expectations of the assured in the purchase of his insurance policy.” Burd v. Sussex Mut. Ins. Co., 56 N.J. 383, 400 (1970) (Jacobs, J., dissenting). In the present case, the language of the policy clearly did not provide for any “dropping down” by the secondary insurer for losses not recoverable by reason of the insolvency of the primary insurer. Absent evidence that some other action by First State created a different understanding by the insured, the unambiguous language of the contract must be enforced.

We therefore remand the matter, as we did in Sparks v. St. Paul Ins. Co., supra, 100 N.J. at 342 n. 6, to permit the trial court to consider proof of whether “the terms of this policy were specifically understood and bargained for.” In this context, that would mean inquiring into any background evidence that the insured, through its broker, conveyed to the insurer a contrary intent than that found in the unambiguous language of the policy and was induced to enter this policy by the insurer’s conduct. We note further that Werner may have a remedy against the Rice Agency, its commercial broker, on a theory of broker’s negligence if the umbrella policy provided by the broker did not provide the coverage it undertook to supply because of its failure to exercise requisite skill or diligence. In negotiating that policy with the insurer, the broker may become liable to his principal for the loss sustained by the insured. See Bates v. Gambino, 72 N.J. 219 (1977).

The judgment of the Appellate Division is reversed and the matter remanded to the Law Division for further proceedings in accordance with this opinion.

1

Werner paid $5,000 for this umbrella coverage. In this age of escalating liability insurance premiums, we can well imagine that First State might have rated this policy differently had the customer been buying the potential first line of coverage, and Werner might have expected to pay a greater premium.

2

The Law Division referred as well to additional provisions of the policy, including Condition (g), which provided that First State’s coverage was not available "unless and until the INSURED, or the INSURED’S underlying insurer, shall be obligated to pay the amount of the UNDERLYING LIMIT," and Condition (o) of the policy, which required Werner to maintain the underlying policy in force and effect during the effective dates of the First State policy, and if it fails to do so, the First State policy "shall apply in the same manner it would have applied had such policy been so maintained in force.” The Appellate Division placed no significance on this Condition since Werner had maintained the policy in force. It was not through Werner’s fault that Ambassador became insolvent.

Dissent

[*40] HANDLER, J.,

dissenting..

I would affirm the judgment of the Appellate Division, substantially or the reasons expressed in the opinion of Judge Baime, reported at 217 N.J.Super. 436 (1987).

For reversal and remand — Chief Justice WILENTZ and Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN — 6.

For affirmance — Justice HANDLER — 1.