KATHLEEN GELCHION v. CENTRAL PARKING SYSTEM OF NEW JERSEY, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2032-06T52032-06T5

KATHLEEN GELCHION and

MICHAEL GELCHION, her husband,

Plaintiffs,

v.

CENTRAL PARKING SYSTEM OF

NEW JERSEY, INC.,

HOUSING AND URBAN DEVELOPMENT

OF NEW BRUNSWICK,

Defendants,

and

ROBERT WOOD JOHNSON

UNIVERSITY HOSPITAL,

Defendant/Third-Party Plaintiff-

Respondent,

v.

LUMBERMENS MUTUAL CASUALTY COMPANY,

Third-Party Defendant-Appellant.

___________________________________________

 

Argued January 14, 2008 - Decided

Before Judges S. L. Reisner, Gilroy and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6456-03.

Elliott Abrutyn argued the cause for appellant (Morgan Melhuish Abrutyn, attorneys; Mr. Abrutyn, of counsel and on the brief; Thomas G. Rantas, on the brief).

Timothy P. Burns argued the cause for respondent (Robinson, Burns & McCarthy, attorneys; Mr. Burns, of counsel and on the brief; Steven T. Casiere, on the brief).

PER CURIAM

Third-party defendant Lumbermens Mutual Casualty Company appeals from the September 9, 2005 order of the Law Division, which granted summary judgment to defendant/third-party plaintiff Robert Wood Johnson University Hospital (the Hospital), directing that Lumbermens: 1) defend and indemnify the Hospital against the personal injury and per quod claims asserted by plaintiffs, Kathleen Gelchion and Michael Gelchion, respectively; and 2) reimburse the Hospital for counsel fees and costs incurred in defense of the action from May 27, 2004, to the conclusion of the matter. Lumbermens also appeals from the order of November 4, 2005, which denied its motion for reconsideration of the September 9, 2005 order, and for summary judgment on the Hospital's third-party complaint for insurance coverage. We affirm.

On December 26, 2002, plaintiff Kathleen Gelchion slipped and fell on a patch of ice on the fourth floor of a parking garage owned by the Hospital and maintained and operated by defendant Central Parking System of New Jersey, Inc. (CPS), pursuant to a management agreement (Agreement) that had previously been entered into between the Hospital and Kinney System Hospital Management, Inc., CPS's predecessor. Paragraph 10 of the Agreement provided that CPS would maintain the general cleanliness of the parking garage, but that the Hospital "shall remove ice and snow" therefrom. Paragraph 12 of the Agreement required CPS to obtain a comprehensive general liability insurance policy, naming the Hospital as an additional insured, and to provide a certificate of insurance to the Hospital on execution of the Agreement and on each anniversary date thereafter.

Paragraph 12E provided that the Hospital would look to the insurance proceeds under CPS's policy:

recognizing that both [the Hospital] and [CPS] are insured under the same policies for the payment of claims, liabilities, damages and costs to defend, and [the Hospital] agrees, as a result of the foregoing, that [CPS] shall have no responsibility whatsoever for any claims, damages, judgment, etc., related to the Premises or the Business not covered by the insurance required by this Agreement . . . .

Paragraph 21 of the Agreement provided for mutual indemnification against each other's acts of negligence not covered by insurance.

Pursuant to the Agreement, CPS provided a certificate of insurance through its insurance broker, referencing a policy of comprehensive general liability insurance issued by Lumbermens. The certificate of insurance provided in relevant part: "[t]his certificate is issued as a matter of information only and confers no rights upon the certificate holder." In addition, the certificate provided that coverage was limited to the Hospital "as an Additional Insured . . . only to the extent of the negligent performance of activities for Additional Insured by Named Insured." Further, the certificate provided that "[c]overage is limited by the terms and conditions of any written agreement between Named Insured and Additional Insured, and "in no event shall Named Insured or its insurer be liable for the act(s) or omission(s), negligent or otherwise, of Additional Insured, its agents, servants or employees."

On September 3, 2003, plaintiffs filed a personal injury negligence complaint against CPS. On October 17, 2003, CPS filed its answer and a third-party complaint against the Hospital for contribution and/or indemnification. On April 20, 2004, the Hospital filed its answer to the third-party complaint and asserted a counterclaim for contribution and/or indemnification.

On May 27, 2004, the Hospital sent Lumbermens a letter, demanding that Lumbermens defend and indemnify it pursuant to the terms of the Agreement and the certificate of insurance. On November 5, 2004, after Lumbermens refused to undertake its defense, the Hospital filed a third-party complaint against Lumbermens to compel the insurer to defend and indemnify the Hospital against all damages, and for counsel fees and costs. On February 28, 2005, plaintiffs filed an amended complaint naming the Hospital, CPS, and Housing and Urban Development of New Brunswick as defendants.

In June 2005, the Hospital filed a motion for summary judgment against Lumbermens. In support of its motion, the Hospital presented the following evidence: (1) the Agreement's requirement that CPS maintain a policy of comprehensive general liability insurance naming the Hospital as an additional insured; (2) the certificate of insurance; and (3) a copy of the Hospital's own commercial general liability insurance policy issued by Pennsylvania Manufacturers' Association Insurance Company.

Lumbermens was granted three continuances to oppose the motion. However, Lumbermens neither filed opposition to the motion, nor appeared for argument on the motion's return date. On September 9, 2005, the court granted the motion on the papers and ordered Lumbermens to defend and indemnify the Hospital. On September 28, 2005, Lumbermens filed a motion for reconsideration of the order of September 9, 2005, and for summary judgment on the third-party complaint, contending that the Hospital's motion for summary judgment "was inadvertently unopposed" and that the Hospital was the party responsible for the removal of ice and snow from the parking garage. Lumbermens neither raised any insurance coverage issues in support of its motion, nor submitted a copy of its insurance policy to the court. Rather, Lumbermens presented arguments that addressed the Hospital's common law and contractual duty to exercise due care to maintain the parking garage free from ice and snow, and the Hospital's agreement to indemnify CPS for claims caused by the Hospital's own acts of negligence.

Lumbermens's motion was listed for oral argument by the court for November 4, 2005; however, Lumbermens again failed to appear. The trial court denied the motion, explaining that Lumbermens had failed to present any "new evidence" or "new law" that was not before the court on the original motion, and that the court had "put this off three times to allow [Lumbermens] to oppose it. [Lumbermens] never did." A confirming order was entered the same day.

Thereafter plaintiffs settled their claims against the Hospital and CPS for $850,000. Lumbermens paid $680,000 of that settlement on behalf of the Hospital and $170,000 on behalf of CPS. On November 3, 2006, the court entered an order confirming the settlement. On December 13, 2006, Lumbermens filed its notice of appeal of the court's orders granting the Hospital summary judgment and denying its motion for reconsideration and summary judgment.

On February 8, 2007, the trial court filed a letter opinion stating its reasons for its decisions pursuant to Rule 2:5-1(b). The court stated that it had granted the motion for summary judgment because: 1) "[t]here is no issue that the incident arose out of the operation of the parking deck"; 2) there was "no doubt" that the Agreement required CPS to name the Hospital as an additional insured under its general liability insurance policy; 3) there was "no issue of fact" as to CPS having obtained a policy through Lumbermens naming the Hospital as an additional insured thereon; and 4) the Hospital had obtained its own commercial general liability insurance policy through Pennsylvania Manufacturers' Association Insurance Company, which provided that the Hospital's policy was excess over "any other primary insurance available to [the Hospital] covering liability for damages arising out of the premises or operations for which [the Hospital] has been added as an additional insured by attachment of an endorsement."

Further, the court stated that it had adjourned the motion three times to allow Lumbermens to file opposition, and Lumbermens failed to do so. Lastly, the court stated it had denied Lumbermens's motion for reconsideration because Lumbermens had failed to set forth any facts or principles of law that the court had failed to consider in deciding the Hospital's motion for summary judgment, and Lumbermens had again failed to appear on the motion.

In March 2007 Lumbermens filed a motion to supplement the record on appeal with a copy of the insurance policy. On April 10, 2007, that motion was granted "without prejudice to the panel that hears the appeal on its merits determining whether the material should be considered since it was not presented to the trial court."

On appeal, Lumbermens argues:

POINT I

THE GRANT OF SUMMARY JUDGMENT TO ROBERT WOOD [JOHNSON UNIVERSITY HOSPITAL] SHOULD BE REVERSED BECAUSE THE ADDITIONAL INSURED COVERAGE IN THE LUMBERMENS POLICY WAS NOT TRIGGERED IN FAVOR OF ROBERT WOOD. MOREOVER, EVEN IF THE COVERAGE WAS TRIGGERED, THE TERMS OF THE LUMBERMENS POLICY EXCLUDED SUCH COVERAGE AND PROVIDED THAT SUCH COVERAGE WOULD ONLY BE EXCESS OVER ANY INSURANCE MAINTAINED BY ROBERT WOOD. (THIS ARGUMENT WAS NOT PRESENTED BELOW).

A. THE ADDITIONAL INSURED COVERAGE IN THE LUMBERMENS POLICY WAS NOT TRIGGERED IN FAVOR OF ROBERT WOOD BECAUSE PLAINTIFF'S ACCIDENT DID NOT ARISE OUT OF CENTRAL PARKING'S PREMISES OR ONGOING OPERATIONS.

1. THE ADDITIONAL INSURED COVERAGE IN THE LUMBERMENS POLICY WAS NOT TRIGGERED IN FAVOR OF ROBERT WOOD BECAUSE PLAINTIFF'S ACCIDENT DID NOT ARISE OUT OF CENTRAL PARKING'S PREMISES.

2. THE ADDITIONAL INSURED COVERAGE IN THE LUMBERMENS POLICY WAS NOT TRIGGERED IN FAVOR OF ROBERT WOOD BECAUSE PLAINTIFF'S ACCIDENT DID NOT ARISE OUT OF CENTRAL PARKING'S ONGOING OPERATIONS.

B. EVEN IF THE ADDITIONAL INSURED COVERAGE IN THE LUMBERMENS POLICY WAS TRIGGERED IN FAVOR OF ROBERT WOOD, ANY COVERAGE AVAILABLE TO ROBERT WOOD WAS EXCLUDED BY VIRTUE OF THE ACT OR OMISSION EXCLUSION.

C. EVEN IF THE ADDITIONAL INSURED COVERAGE IN THE LUMBERMENS POLICY WAS TRIGGERED IN FAVOR OF ROBERT WOOD AND NOT EXCLUDED, THE LUMBERMENS POLICY ONLY PROVIDED EXCESS COVERGE OVER ANY INSURANCE MAINTAINED BY ROBERT WOOD.

D. THE COURT SHOULD CONSIDER THE ARGUMENTS RAISED BY LUMBERMENS IN POINT I OF THIS BRIEF BECAUSE THE GRANT OF SUMMARY JUDGMENT WAS PLAIN ERROR, THE REVIEW OF THESE ARGUMENTS IS NECESSARY TO ACHIEVE SUBSTANTIAL JUSTICE AND THE ESSENCE OF THE ARGUMENTS BASED ON THE TERMS OF THE LUMBERMENS POLICY WERE ADDRESSED IN THE LUMBERMENS MOTION FOR RECONSIDERATION AND SUMMARY JUDGMENT.

1. THE TRIAL COURT'S GRANT OF SUMMARY JUDGMENT WAS PLAIN ERROR IN LIGHT OF THE FACT THAT IT DID NOT REVIEW THE TERMS OF THE LUMBERMENS POLICY AND, BY IMPLICATION, ANY DEFENSES ARISING FROM THE TERMS OF THE POLICY, IN MAKING A DECISION REGARDING THE COVERAGE PROVIDED BY THE POLCY.

2. THE ISSUES NOT RAISED BELOW SHOULD BE CONSIDERED BECAUSE THE HEARING OF THESE ISSUES ARE NECESSARY TO ACHIEVE SUBSTANTIAL JUSTICE AND THE RECORD IS SUFFICIENTLY COMPLETE TO PERMIT ADJUDICATION OF THESE ISSUES.

3. THE ISSUES NOT RAISED BELOW SHOULD BE CONSIDERED BECAUSE LUMBERMENS ARGUED THE FACTS ESSENTIAL TO ITS ARGUMENTS BASED ON THE TERMS OF THE LUMBERMENS POLICY IN ITS BRIEF TO THE TRIAL COURT.

POINT II.

LUMBERMENS SHOULD BE ALLOWED TO INCLUDE THE LUMBERMENS INSURANCE POLICY BECAUSE THE INCLUSION OF THIS INSURANCE POLICY IN THE RECORD IS CRUCIAL AND WILL AFFECT THE OUTCOME OF THE APPEAL.

POINT III.

EVEN IF THE LUMBERMENS POLICY IS NOT CONSIDERED, THE GRANT OF SUMMARY JUDGMENT TO ROBERT WOOD SHOULD BE REVERSED BECAUSE THE ADDITIONAL INSURED COVERAGE SUPPOSEDLY PROVIDED BY THE CERTIFICATE OF INSURANCE WAS NOT TRIGGERED IN FAVOR OF ROBERT WOOD. (THIS ARGUMENT WAS NOT PRESENTED BELOW).

POINT IV.

EVEN IF THE LUMBERMENS POLICY IS NOT CONSIDERED, THE TRIAL COURT SHOULD HAVE GRANTED THE SUMMARY JUDGMENT MOTION FILED BY LUMBERMENS BECAUSE THE ADDITIONAL INSURED COVERAGE SUPPOSEDLY PROVIDED BY THE CERTIFICATE OF INSURANCE WAS NOT TRIGGERED IN FAVOR OF ROBERT WOOD.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2008). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Motions for reconsideration are governed by Rule 4:49-2. Reconsideration is a matter to be exercised in the trial court's sound discretion. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988). "A litigant should not seek reconsideration merely because of dissatisfaction with a decision of the [c]ourt." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). "Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. Simply stated, reconsideration is only to point out "the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2.

We have considered each of Lumbermens's arguments in light of the record and the applicable law. We are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Lumbermens concedes that it did not present a copy of its insurance policy to the trial court in opposition to the Hospital's motion for summary motion or in support of its motion for reconsideration. Nevertheless, Lumbermens argues for the first time on appeal in Point I that we should reverse the grant of summary judgment to the Hospital based on the terms of its insurance policy. In furtherance of that argument, Lumbermens contends that we should examine the contents of its insurance policy because our consideration of the policy "is necessary to determine whether Lumbermens owed additional insured coverage to [the Hospital] and because its addition would greatly affect the outcome of the appeal." We decline this invitation.

The order of April 10, 2007, granting Lumbermens motion to supplement the record with a copy of the insurance policy, was granted "without prejudice to the panel that hears the appeal on its merits determining whether the material should be considered since it was not presented to the trial court." In deciding a motion to supplement the record on appeal from a trial court, the appellate court should consider: "(1) whether at the time of the hearing or trial, the applicant knew of the information he or she now seeks to include in the record, and (2) if the evidence were included, whether it is likely to affect the outcome." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A. 189 N.J. 436, 452-53 (2007). Here, Lumbermens does not contest the fact that it did not present the policy to the trial court even though it had the insurance policy in its possession at the time of the Hospital's motion for summary judgment and at the time of its motion for reconsideration. Accordingly, because Lumbermens cannot satisfy the first prong of the Liberty test, we decline to consider the provisions of the policy.

Moreover, Lumbermens seeks to present arguments pertaining to insurance coverage issues, which it failed to present to the trial court. Generally, "we decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . ." Monek v. Bor. of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Exceptions include when "the issue is of special significance to the litigant, to the public, or to the achievement of substantial justice, and the record is sufficiently complete to permit its adjudication." Bor. of Keyport v. Maropakis, 332 N.J. Super. 210, 216 (App. Div. 2000). Another exception is when the questions "'raised on appeal go to the jurisdiction of the trial court.'" Brown v. Twp. of Old Bridge, 319 N.J. Super. 476, 501 (App. Div.), (quoting Skripek v. Bergamo, 200 N.J. Super. 620, 629 (App. Div.), certif. denied, 102 N.J. 303 (1985)), certif. denied, 162 N.J. 131 (1999). We determine that none of the exceptions to the general principle are applicable to this matter.

The trial court accepted as factual the unopposed allegations in the Hospital's summary judgment papers and granted the motion. In its February 2007 letter opinion, the court explained that those facts had established: 1) the Agreement required CPS to obtain comprehensive liability insurance for any claims arising out of the operation of the parking garage; 2) CPS had obtained the insurance through Lumbermens; 3) the policy named the Hospital as an additional insured; and 4) plaintiff Kathleen Gelchion's injuries arose out of the operation of the parking garage. Accordingly, the trial court concluded that Lumbermens owed the Hospital a duty to defend and indemnify under the policy. Because Lumbermens failed to oppose the Hospital's motion for summary judgment, it cannot now present matters on appeal which it should have presented to the trial court. Infante v. Gottesman, 233 N.J. Super. 310, 319 (App. Div. 1989). ("Since plaintiff offered no opposition to defendant's motion for summary judgment as to [certain] matters in the trial court, he will not be heard to complain that the trial court accepted as true the uncontradicted facts in defendant's moving papers, and thus he cannot challenge the summary judgment order entered in defendant's favor.").

Lumbermens contends that we should address its insurance coverage arguments on the merits in order to achieve substantial justice, an exception to the general principle of not entertaining matters not raised in the trial court. We conclude to the contrary, i.e., that reversing the grant of summary judgment on insurance coverage issues which should have been addressed in the trial court would cause substantial injustice to the Hospital.

Post-summary judgment, the Hospital and CPS settled with plaintiff, with Lumbermens advancing the settlement proceeds. On November 3, 2006, a consent order executed by all parties, including Lumbermens, was entered confirming settlement of the matter. CPS was obligated under the Agreement to name the Hospital as an additional insured on its insurance policy for claims that arose out of the operation of the parking facility. If we reverse the grant of summary judgment, determining that the Hospital was not entitled to coverage as an additional insured under the policy, the Hospital would be without the insurance coverage that CPS had agreed to provide. Because the parties settled, we question whether the Hospital could now pursue a breach of contract claim against CPS in a separate action, for not providing adequate insurance coverage. Such an unjust result must be avoided when it could have been prevented had Lumbermens raised the insurance coverage issues in the Law Division, where the Hospital could have sought leave to amend its third-party complaint to assert a claim for breach of contract if the trial court had determined that Lumbermens was not required to provide coverage to the Hospital.

Lumbermens next asserts that we should address the insurance coverage arguments "because the [t]rial [c]ourt committed plain error when it granted summary judgment to [the Hospital] on an issue of insurance coverage without reviewing the terms of the policy." Lumbermens contends that the issues raised in Point I should be considered because a review of the "actual terms of the policy is absolutely necessary to obtain substantial justice in this matter and to arrive at the proper disposition of this case." We find the argument is misplaced.

Rule 2:10-2 provides in pertinent part: "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interest of justice, notice plain error not brought to the attention of the trial . . . court." Accordingly, unless such an issue goes to the jurisdiction of the trial court or concerns matters of substantial public interest, the appellate court will generally not consider it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We conclude that no issue of plain error exists because Lumbermens had failed to submit any opposition to the Hospital's motion for summary judgment. Had Lumbermens submitted opposition and omitted a relevant argument or had the court failed to address an argument submitted, then the issue of plain error would be applicable. Because Lumbermens failed to submit any opposition to the summary judgment motion, the plain error rule does not apply.

Lastly, we briefly address Lumbermens assertion that the trial court erred in granting summary judgment based on the certificate of insurance, contending that the accident did not arise out of CPS's operation of the parking facility, but rather only from the Hospital's own acts of negligence. Lumbermens contends that there was an absence of proof of a "substantial nexus" between CPS's management of the parking facility and plaintiff's accident. We disagree.

Plaintiff's accident occurred while she traversed the fourth floor of the parking facility that CPS had been contracted by the Hospital to manage. CPS was obligated under the Agreement to "keep the Premises, including the floors of the Premises, clean, neat and orderly, and free from all grease, oil, ashes, dirt, and other refuse or matter." Although the Agreement also provided that the Hospital "shall remove ice and snow," CPS's daytime porter at the parking facility was responsible for inspecting the deck and notifying the Hospital if there was ice and snow that had to be removed. Although the record failed to disclose whether or not the porter had made his or her inspection and/or reported the hazardous condition to the Hospital before the accident occurred, we are satisfied that there was a sufficient nexus between CPS's operation of the parking facility and the accident to trigger the additional insured coverage.

Affirmed.

Improperly pleaded as Central Parking System and Kinney System Hospital Management, Inc., d/b/a/ Central Parking System of New Jersey.

Housing and Urban Development of New Brunswick was dismissed from the action pursuant to a stipulation of dismissal filed on July 5, 2005.

Appellant refers to Robert Wood Johnson University Hospital as "Robert Wood" throughout its point headings.

(continued)

(continued)

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A-2032-06T5

June 4, 2008