JOAN VECCHIARELLI-CARLUCCI v. MICHELE B. VITALE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0473-08T30473-08T3

JOAN VECCHIARELLI-CARLUCCI

and JUSTIN CARLUCCI, her

husband,

Plaintiffs-Appellants,

v.

MICHELE B. VITALE and J.K.

CARTING, L.L.C.,

Defendants-Respondents.

_______________________________________

 

Submitted June 2, 2009 - Decided

Before Judges Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3424-05.

Michael J. Monaghan, attorney for appellants.

Vincent J. Velardo (Litchfield Cavo, L.L.P.), attorney for respondents.

PER CURIAM

Plaintiffs appeal from orders entered by the trial court on August 15, 2008 and September 16, 2008, denying plaintiffs' motion to modify a settlement agreement between plaintiffs and defendants, which would require defendants to pay certain medical bills. We affirm.

This appeal arises from the following facts. On May 12, 2005, plaintiffs filed a complaint in which they alleged that Joan Vecchiarelli-Carlucci (Joan) was injured in an automobile accident when the vehicle that she was operating was struck by a vehicle owned by defendant J.K. Carting, L.L.C., and driven by defendant Michele B. Vitale. Joan sought damages for her personal injuries. Her husband, plaintiff Justin Carlucci, sought damages for the loss of Joan's services and consortium.

On July 20, 2007, plaintiffs served upon defendants their pre-trial information exchange, which included certain outstanding medical bills owed to Meridian Resource Co., Inc. (Meridian) in the amount of $43,185.46. Defendants thereupon filed a motion in limine, arguing that such evidence was barred by N.J.S.A. 39:6A-12.

On July 30, 2007, the first day of the trial, the court granted defendants' motion and precluded plaintiffs from making any reference to the medical bills incurred prior to the trial. The following day, the parties reached an agreement to settle plaintiffs' claims for $650,000.

Plaintiffs executed a release dated July 31, 2007, which released defendants from "any and all claims and rights" that plaintiffs may have against defendants arising from the subject accident. The release included the following provisions related to liens and medical payments:

I will satisfy any and all liens, including, but not limited to medical liens, medical expenses, health insurance payments, workers compensation liens, Medicare/Medicare [sic] liens and/or subrogation liens and agree to defend, indemnify and hold harmless the Releasee and its carrier for any claims arising from same.

The undersigned hereby discharges and agrees to indemnify and save harmless the releasees from any liens asserted by any healthcare provider, hospital, insurer or attorney for medical expenses, hospital expenses, lost earnings, payments, attorney liens, subrogation claims or liens and any workers compensation liens as a result of this accident occurrence.

The undersigned hereby certify and represent to the releasee(s) that he/she/they have fully disclosed the name, address, telephone number, policy number and claim number as well as amount claimed as a lien, by any health care provider, subrogation insurance carrier, or attorney as a result of this accident or occurrence.

The undersigned further agrees, represents, and certifies that he/she/they will pay the fully agreed upon amount of any lien asserted by any provider as outlined above directly out of the proceeds of this settlement. The undersigned hereby further agrees to indemnify and hold harmless the releasee from any future lien by any provider as outlined above which has not been previously made known to the parties herein.

In March 2008, Blue Cross and Blue Shield Association (BCBS) and Meridian filed a motion to intervene in the settled action. BCBS and Meridan filed with their motion a verified complaint against plaintiffs and defendants seeking reimbursement of the benefits paid to Joan for medical care required for injuries sustained in the subject accident.

In their complaint, BCBS and Meridian alleged, among other things, that they had a lien against the $650,000 settlement obtained by plaintiffs or "generally" against defendants. Defendants filed a cross-claim against plaintiffs, alleging that the release executed by plaintiffs required that they indemnify defendants for the claims asserted by BCBS and Meridian.

On March 14, 2008, the court granted the motion by BCBS and Meridian to intervene.

On May 29, 2008, plaintiffs filed a motion seeking to modify the settlement with defendants on the ground of mutual mistake. BCBS, Meridian and defendants opposed the motion. The court entered an order dated August 15, 2008, denying plaintiffs' motion. In an addendum to the order, the court wrote that:

[a] review of the Release and the parties' submissions reveals that there was no mutual mistake underlying the settlement. The Release is clear on its face that it was meant to be a full and final settlement of all claims. The document was signed in good faith and after extensive negotiation between the parties. This Court finds that there is no basis to modify the settlement.

The court entered another order on September 16, 2008, which again denied plaintiffs' motion and declared that the August 15, 2008 order was a final judgment pursuant to Rule 4:42-2. Plaintiffs filed a notice of appeal on September 23, 2008. They filed an amended notice of appeal on October 15, 2008. In November 2008, plaintiffs settled the claims asserted by BCBS and Meridian in their complaint. Joan agreed to pay BCBS and Meridian $21,592.73. It appears that the settlement also resolved defendants' cross-claim.

Before considering plaintiffs' arguments in this appeal, we address the issue of our jurisdiction. We note that, at the time plaintiffs filed their notice of appeal and amended notice of appeal, the trial court's orders of August 15, 2008 and September 16, 2008, were not orders from which an appeal could be taken "as of right." Rule 2:2-3(a)(1) only permits such appeals to be taken from final judgments, which are judgments that "dispose of all claims against all parties." Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007) (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)).

Because the claims asserted in this action by BCBS and Meridian remained unresolved at the time the August 15, 2008 and September 16, 2008 orders were entered, those orders were not "final judgments" under Rule 2:2-3(a)(1). It appears, however, that the remaining claims in the case were resolved when the settlement was reached by plaintiffs and BCBS and Meridian and, as a result, an appeal could be taken from the August 15, 2008 and September 16, 2008 orders.

We turn to the merits of the appeal. Plaintiffs argue that the trial court erred by denying their motion to modify the settlement. They contend that there was no meeting of the minds with regard to the payment of the unpaid medical expenses. Plaintiffs also contend that, as a result of a mutual mistake regarding the medical expenses, there was no binding agreement. Plaintiffs further contend that modification of the settlement agreement was warranted even if there was only a unilateral mistake on their part.

We are convinced from our review of the record that these contentions are entirely without merit. We therefore affirm the orders at issue substantially for the reasons stated by the trial court in the statement of reasons appended to the order of August 15, 2008. R. 2:11-3(e)(1)(A) and (E). We add the following brief comments.

The release executed by plaintiffs makes abundantly clear that plaintiffs were not mistaken as to the terms under which they were settling their claims against defendants. Plaintiffs released defendants from all claims, including any unpaid medical bills. In our judgment, the trial court correctly determined that, under the circumstances, plaintiffs had shown no basis for modifying the settlement agreement.

 
Affirmed.

According to the complaint, Meridian is a BCBS subcontractor that assists BCBS in the administration of its benefit plan.

We note that the trial court declared the September 16, 2008 order a "final judgment" pursuant to Rule 4:42-2. The court erred in doing so. The September 16, 2008 order did not impose any liability and was not "subject to process to enforce a judgment[.]" R. 4:42-2. The order could not be certified as a final judgment. Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 550 (App. Div. 2007).

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A-0473-08T3

July 6, 2009