COMMERCIAL INSURANCE COMPANY OF NEWARK v. MARY STEIGER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2970-07T12970-07T1

COMMERCIAL INSURANCE COMPANY

OF NEWARK,

Plaintiff-Appellant,

v.

MARY STEIGER, Individually and as

Executrix of the Estate of DAVID

STEIGER, MICHAEL G. NATOLI, PEERLESS

INSURANCE CO., SAAB SCANCIA, INC.,

Defendants-Respondents.

________________________________________

 

Argued April 1, 2009 - Decided

Before Judges Payne and Newman.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No.

L-7244-03.

Jerald J. Howarth argued the case for appellant (Howarth & Associates, LLC, attorneys; Mr. Howarth and Purnima D. Ramlakhan, on the brief).

Dennis G. Polizzi argued the cause for respondent (Weiner, Ryan & Mazzei, attorneys; Mr. Polizzi, of counsel and on the brief).

PER CURIAM

Plaintiff Commercial Insurance Company of Newark (Commercial), appeals from several orders of the trial court.

The underlying incident involved a single-car crash in which David Steiger was killed when his Saab overturned after striking a toll booth on the New Jersey Turnpike. Defendant Mary Steiger, on her own behalf and as executrix of the decedent's estate (Estate), filed a complaint against Saab. The parties settled on the second day of trial.

Approximately two years later, Estate demanded coverage from Commercial on the decedent's uninsured motorist (UM) policy, alleging a "phantom vehicle" had caused the accident. Commercial sought declaratory judgment barring the UM claim. Estate filed a cross-motion to compel arbitration of the UM claim. The trial judge granted Estate's motion and this court affirmed the order on appeal. Commercial Ins. Co. v. Steiger, 395 N.J. Super. 109 (App. Div. 2007).

The present appeal arose when Estate sought an order compelling Commercial to proceed to UM arbitration. Commercial filed a cross-motion objecting to the named arbitrators, seeking contribution for the cost of storing the vehicle involved in the accident, and seeking to compel additional discovery. Although Commercial requested oral argument, the trial court decided both motions on the papers, granting Estate's motion and denying Commercial's motion. The trial judge found Commercial's claims were precluded by the prior litigation. Commercial filed a motion for reconsideration which the trial court also denied without holding oral argument.

Commercial then filed this appeal, arguing it should have been granted oral argument on both the cross-motion and the motion for reconsideration, that the trial judge erred in not making any oral or written findings, that the trial judge was inconsistent in granting Estate's motion while denying Commercial's motion, and that the order compelling UM arbitration violated Commercial's contractual rights to discovery and to name its own arbitrator.

At oral argument, the parties agreed to the following relief:

(1) The UM claim shall be submitted to arbitration within forty-five days of the date of this opinion;

(2) Within twenty-one days of the date of this opinion, the deposition of Michael Natoli shall be conducted and completed;

(3) The report and/or testimony of the Affiliated Engineer representative relating to the scrapings from the Saab vehicle is admissible at the arbitration proceeding;

(4) The Saab vehicle may be disposed of at this time and the issue of the storage fees for the Saab vehicle will be remanded to the trial court for disposition which may be decided on the basis of documents and argument by counsel. Although counsel did not believe testimony was necessary on resolving this issue, it is of course up to the trial court if testimony is required to decide the storage fee issue.

The only issue remaining, which counsel could not resolve, relates to whether the neutral arbitrator selected by the parties should remain in place. We now address the sole remaining issue.

The Estate selected Nicholas Mattera. Commercial's selection was Charles Carey. The neutral arbitrator selected was Charles Lynch. On July 27, 2005, the Estate requested that the arbitration proceed with the arbitrators just referenced. Commercial responded by stating that new arbitrators should be chosen, depositions should occur, the paint on the Saab should be sampled and the Estate should share in the storage fees.

Commercial cross-moved for an order to compel the deposition of the Estate's expert, Natoli, to compel contribution to storage costs, and to dispose of the vehicle. The Estate opposed the cross-motion, arguing that Commercial had never requested Natoli's deposition during the 300-day discovery period, and that the policy did not permit such discovery. The Estate also denied responsibility for storage fees. The trial court denied the relief sought by Commercial, holding that it was barred by the July 12, 2005, order requiring that UM arbitration occur.

Thereafter, Commercial sought reconsideration, but in the meantime, it selected Edward DePascale as its arbitrator and requested a change in the neutral arbitrator. The Estate opposed the latter request. Following the denial of reconsideration, Commercial again appealed.

Commercial contends that the order compelling it to proceed with UM arbitration deprived it of its contractual rights to select its own arbitrator and to participate in the selection of the neutral arbitrator. We disagree. Commercial did select its arbitrator and participated in the selection of the neutral arbitrator. No objection to the neutral arbitrator selection was voiced until the various motions and cross-motions were brought on July 27, 2005.

Commercial's prior counsel was satisfied with the neutral arbitrator selected. A change of counsel should not require a change in the selection previously made. Commercial's contractual right to select an arbitrator has not been infringed. We discern no basis to disturb the selection of the neutral arbitrator previously made in this case where this matter was first ordered to proceed to arbitration on October 20, 2000. No objection has been made to Commercial's change of its own arbitrator selection to Edward D. DePasquale.

Affirmed and remanded for further proceedings consistent with this opinion.

 

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A-2970-07T1

April 16, 2009