FEDERAL INSURANCE COMPANY v. AMERICAN BUILDING COMPANY, INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1755-07T21755-07T2

FEDERAL INSURANCE COMPANY as

subrogee of Langeveld Bulb

Co.,

Plaintiff-Appellant,

v.

AMERICAN BUILDING COMPANY, INC.,

Defendant-Respondent.

_________________________________________________

 

Submitted July 8, 2008 - Decided

Before Judges C.S. Fisher and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9629-06.

Miller & Lamastra, attorneys for appellant (John D. Gulyas, on the brief).

Marshall, Dennehey, Warner, Coleman & Goggin and Robert B. Hill (McLain & Meritt) of the Georgia bar, admitted pro hac vice, attorneys for respondent (Mr. Hill, of counsel; Walter F. Kawalec, III, on the brief).

PER CURIAM

Plaintiff Federal Insurance Company appeals the dismissal, by way of a motion for summary judgment, of its second lawsuit against defendant American Building Company, Inc., based upon damage to buildings owned by plaintiff's insured, Langeveld Bulb Company. We find no merit in plaintiff's arguments and affirm.

The circumstances preceding the dismissal of this suit are relatively simple. Langeveld owns property in Lakewood, which was insured by plaintiff. A snowstorm on February 22, 2003 damaged two prefabricated steel structures -- what have been referred to by the parties as Buildings 2 and 3 -- on Langeveld's property. Plaintiff honored the obligations imposed by its insurance policy and paid Langeveld $3,840,160.48 to compensate it for this damage.

Plaintiff thereafter commenced an action in the Law Division in Ocean County on June 10, 2004. The complaint named American as a defendant. By way of subsequent amendments, Iorio Construction and other parties were also named as defendants. The parties engaged in extensive discovery.

Plaintiff provided a timely expert report that was limited to the damage caused to Building 2. In a deposition, plaintiff's expert confirmed that he had no opinion as to the cause of the leak in Building 3's roof, and, by the close of discovery, plaintiff had not retained an expert regarding the damage to Building 3. Iorio, however, timely served an expert report, prepared by Randy Patarcity, P.E., which made reference to the damage to Building 3.

Plaintiff later settled with Iorio and, after the close of disocvery, indicated its reliance upon Patarcity's expert report. In a series of motions, the Ocean County judge consistently refused to allow plaintiff to rely upon Patarcity's report. The remaining defendants, including American, thereafter successfully moved for summary judgment.

Plaintiff did not appeal the judgment entered in favor of American, or any other defendant, in the Ocean County matter. Instead, plaintiff filed the action at hand -- naming American as a defendant -- in the Law Division in Middlesex County on December 6, 2006. Again, plaintiff asserted the damage to Langveld's property on February 22, 2003, and again sought damages from American based upon American's alleged negligent manufacture and design of a portion of the structures. American successfully moved for summary judgment, which was memorialized in an order entered on November 2, 2007, based upon the entire controversy doctrine.

Plaintiff appeals from the November 2, 2007 order, presenting the following arguments for our consideration:

I. THE TRIAL COURT INCORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT AS THERE WERE MATERIAL FACTS IN DISPUTE AND IN VIEWING THE FACTS AS ALLEGED BY PLAINTIFF IN A LIGHT MOST FAVORABLE TO THE NONMOVANT PLAINTIFF, DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW.

II. THE APPLICATION OF THE ENTIRE CONTROVERSY DOCTRINE WAS NOT APPROPRIATE UNDER THE FACTS OF THIS CASE.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

We note that plaintiff has taken pains, in attempting to avoid application of the entire controversy doctrine, to suggest that the Ocean County action was limited in scope. Plaintiff argues that the Ocean County judge dismissed only one specific claim -- the damage to Building 2 -- and that this left plaintiff free to pursue elsewhere its claim based upon damage to Building 3.

Assuming we were to agree with plaintiff that the summary judgment in the Ocean County action "applied only to one of two claims" -- a contention that is not supported by the record -- we nevertheless reject the argument that this alleged unadjudicated claim could be pursued in a new lawsuit. If there was truth in this assertion that the Ocean County summary judgment failed to dispose of one of plaintiff's claims, then it was incumbent on plaintiff to demonstrate to the Ocean County judge that this was so and, upon failing to so convince the judge, to pursue an appeal regarding the scope of the judgment that had been entered in that action. Plaintiff did not have the luxury of simply filing a new action in a different vicinage against American in order to pursue this alleged unadjudicated claim.

The entire controversy doctrine does not permit such serial lawsuits. To the contrary, the entire controversy doctrine was devised as a means of promoting judicial economy and fairness to the parties; it operates to compel a litigant, among other things, to pursue all its claims against a party in a single lawsuit. See Harley Davidson Motor Co., Inc. v. Advance Die Casting, Inc., 150 N.J. 489, 496 (1997). It does not matter whether plaintiff withheld presentation of the claim regarding Building 3 in the first action or whether the claim was presented and not finally adjudicated. In the former instance, because plaintiff alleged that the damage to Building 3 was brought about as a result of the same transaction or occurrence as the damage to Building 2, plaintiff had no right to file separate complaints. In the latter instance, plaintiff was left to pursue the alleged failure of the trial judge to adjudicate the claim regarding Building 3 through an appeal and not by way of a new action. And lastly, to the extent that plaintiff seems to argue that the Ocean County judge erred in precluding its reliance upon Iorio's expert, it obviously was inappropriate for plaintiff to attempt to pursue those arguments by way of a second lawsuit rather than by way of an appeal of those rulings in the first suit.

We reject plaintiff's arguments for these reasons, as well as those set forth in the oral decision of Judge Edward J. Ryan, with which we substantially agree.

Affirmed.

(continued)

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A-1755-07T2

July 24, 2008