ROSEANNA BICKLE, Plaintiff v. USAA CASUALTY INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3528-06T13528-06T1

ROSEANNA BICKLE,

Plaintiff,

v.

USAA CASUALTY INSURANCE

COMPANY,

Defendant/Third-Party

Plaintiff-Respondent,

v.

RUTGERS CASUALTY (ENHANCED)

INSURANCE COMPANY,

Third-Party Defendant-

Appellant.

 

Argued February 26, 2008 - Decided

Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-4748-06.

Susan L. Moreinis argued the cause for appellant.

Lawrence D. Lally argued the cause for respondent.

PER CURIAM

Third-party defendant Rutgers Casualty Insurance Company appeals from a January 22, 2007 order that enforced a settlement among Rutgers, defendant USAA Casualty Insurance Company and plaintiff Roseanna Bickle. The order requires Rutgers and USAA to pay $12,704.07 each towards plaintiff's no fault benefits, and each to pay one-half of plaintiff's counsel fees, as a result of injuries plaintiff sustained in an automobile accident. On appeal, Rutgers presents the following legal arguments for our consideration:

POINT I

THE CROSS MOTION TO ENFORCE THE SETTLEMENT WAS IMPROPERLY GRANTED AS THE CONTINGENCIES WERE NOT MET.

POINT II

THE CROSS MOTION TO ENFORCE THE SETTLEMENT WAS IMPROPERLY GRANTED AS THE PARTIES WERE UNDER A UNILATERAL AND/OR MUTUAL MISTAKE OF FACT WHICH HAS NOT BEEN RESOLVED.

We affirm.

Plaintiff was involved in an automobile accident on September 23, 2004, while operating a vehicle insured by USAA. Plaintiff did not own a vehicle at the time of the accident. As a result of the accident, plaintiff made a claim for no fault benefits from USAA, and she subsequently filed suit against USAA for those benefits on June 9, 2006. USAA filed an answer and third-party complaint against Rutgers, seeking pro rata contribution on the grounds that at the time of the accident, plaintiff resided with Margaret and James Krystek, who owned a vehicle that was insured by Rutgers.

After Rutgers was served with the third-party complaint, discussions ensued among plaintiff's counsel and counsel for both insurance companies. The issue before the trial court that is subject to appeal is whether those discussions resulted in a settlement in which both USAA and Rutgers agreed to pay one-half of the no fault benefits.

On January 22, 2007, Judge Millenky held a plenary hearing and concluded that such a settlement was reached. On appeal, Rutgers does not challenge the court's credibility findings, but argues that the facts do not support the court's conclusion.

When an error in the factfinding of a judge is alleged, the scope of our review is limited. Giving due regard to the factfinder's credibility determinations, we only decide whether the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) ("Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.").

Here, the judge's findings were supported by adequate, substantial and credible evidence. Rutgers's arguments to the contrary are without merit. R. 2:11-3(e)(1)(A), (E). Although the evidence may have permitted findings other than those made by the trial court, and we may have reached a different result, that does not require setting aside the court's findings and conclusions, which were adequately supported by the evidence. Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132-33 (1997); Beck v. Beck, 86 N.J. 480, 496 (1981).

Rutgers claims that by filing an answer to the third-party complaint, it effectively withdrew any prior offer to settle the case. Although that is one inference that can be drawn, a factfinder could also reasonably conclude that filing the answer to the third-party complaint was not a withdrawal of the offer. Rather, a factfinder could reasonably conclude that Rutgers filed the answer to the third-party complaint simply to protect its interests in the event that no settlement was achieved. We disagree, therefore, with Rutgers's argument that the filing of the answer to the third-party complaint was sufficient to withdraw its prior offer to settle the case.

 
We affirm substantially for the reasons expressed by Judge Millenky in his January 22, 2007 oral decision.

(continued)

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A-3528-06T1

March 14, 2008