EDDIE LAWS v. QUEST DIAGNOSTICS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4394-07T34394-07T3

EDDIE LAWS and FLORENCE

LAWS, his wife,

Plaintiffs,

v.

QUEST DIAGNOSTICS,

Defendant-Respondent,

and

PRINCETON RESEARCH LANDS,

INC. and THOMPSON REALTY

COMPANY OF PRINCETON, INC.,

Defendants-Appellants,

and

FRANK'S LANDSCAPING,

Defendant.

_______________________________________

 

Argued April 21, 2009 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-254-06.

Gregory D. Winter argued the cause for appellants (Winter & Winkler, P.C., attorneys; Mr. Winter, on the brief).

Renee J. Sherman argued the cause for respondent (Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys; Ms. Sherman, of counsel; Michael L. Trucillo, on the brief).

PER CURIAM

Defendants Princeton Research Lands, Inc. (Princeton) and Thompson Realty Company of Princeton, Inc. (Thompson) appeal from orders entered by the trial court which require Princeton to provide defendant Quest Diagnostics of Pennsylvania, Inc. (Quest) with a defense and indemnification for all claims for damages asserted in this action by plaintiffs Eddie Laws and Florence Laws. For the reasons that follow, we affirm.

In this action, plaintiffs asserted claims against Quest, Princeton, Thompson and Frank's Landscaping, Inc. (Frank's Landscaping) for damages arising from an accident that occurred on February 17, 2004, when Eddie Laws slipped and fell on ice in the parking lot of premises located on Franklin Corner Road in the Township of Lawrence. Princeton is the owner of the property and Quest is a tenant of the premises. Thompson is Princeton's agent and apparently had responsibility for the management of the property. It appears that Frank's Landscaping had certain responsibilities for maintenance of the premises.

On August 23, 2007, Princeton and Thompson filed a motion to compel Quest to provide them with insurance coverage, including a defense and indemnification for the claims asserted by plaintiffs. On September 10, 2007, Quest filed a cross-motion to compel Princeton to provide it with a defense and indemnification with respect to plaintiffs' claims. The trial court heard the motions on September 28, 2007, and placed its decision on the record on that date.

The court noted that the lease requires Princeton to maintain all of the common facilities, including the parking lot, curbs and sidewalks. The court also noted that the indemnification provisions of the lease require Princeton to defend and indemnify Quest for any liability arising from Princeton's negligence, and Quest is required to indemnify Princeton for any liability arising from Quest's negligence. The court stated:

the indemnification provisions of the lease clearly and unambiguously limit indemnification coverage for Princeton . . . to damage[s] arising out of Quest's negligence and because the lease does not obligate Quest to indemnify Princeton for Princeton's own negligence the lease [does not] provide indemnification for damages to Princeton . . . arising out of Princeton's own negligence nor does it provide that costs of defense should be borne by Quest or Quest's insurer for damages . . . for defending against allegations and damages arising out of Princeton's own alleged negligence.

The court entered an order dated September 28, 2007, requiring Princeton to provide a defense and indemnification to Quest.

On October 29, 2007, Princeton and Thompson filed a motion for reconsideration of the September 28, 2007 order. Frank's Landscaping also filed a motion for summary judgment. The court considered the motions on January 16, 2008, and placed its decisions on the record on that date. The court granted the motion by Frank's Landscaping for summary judgment and denied Princeton's and Thompson's motion for reconsideration. On January 18, 2008, the court entered an order denying Princeton's and Thompson's motion.

The matter was scheduled for trial in March 2008. The day before the scheduled trial date, Quest's attorney demanded that Princeton's and Thompson's attorney, Gregory D. Winter (Winter), assume responsibility for representing Quest and execute a substitution of attorney. According to Quest's counsel, Winter agreed to execute the document. Winter also told Quest's counsel that he was engaged in settlement negotiations.

Winter thereafter informed Quest's attorney that the case had been settled. The trial court entered a consent order dated April 28, 2008, which entered judgment in favor of plaintiffs and against Princeton and Thompson in the amount of $30,000. Plaintiffs' attorney executed a stipulation of dismissal as to all defendants and forwarded the stipulation to Winter. Winter did not execute the stipulation, however. On May 19, 2008, Winter filed a notice of appeal from the trial court's September 28, 2007 and January 18, 2008 orders on behalf of Princeton and Thompson.

On June 3, 2008, Quest filed a motion in the trial court for an order compelling Princeton and Thompson to provide a stipulation of dismissal as to Quest. The trial court granted the motion and entered an order on August 1, 2008, declaring that all issues as to all claims between Princeton and Quest had been resolved as a result of the court's September 28, 2007 and January 18, 2008 orders and the settlement by plaintiffs and Princeton and Thompson. The order stated that the settlement by Princeton and Thompson also had been made "on behalf of Quest[.]" Princeton and Thompson filed an amended notice of appeal on September 11, 2008, to include an appeal from the court's April 28, 2008 and August 1, 2008 orders.

On appeal, Princeton and Thompson argue that the consent judgment of April 28, 2008 and the August 1, 2008 order resolved all issues as to all parties in this litigation and therefore the court has jurisdiction to consider their appeal from the trial court's September 28, 2007 and January 18, 2008 orders. Princeton and Thompson also argue that the trial court erroneously ruled that they are obligated to provide a defense and indemnification to Quest and are not entitled to coverage under Quest's self-insurance plan.

We first address the question of our jurisdiction. As Princeton and Thompson recognize, appeals may be taken as of right only from final judgments of the trial courts. R. 2:2-3(a)(1). A judgment is not final unless it resolves all issues as to all parties. Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-550 (App. Div. 2007) (citing S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1975).

As stated previously, in this action, plaintiffs asserted claims against Quest, Princeton, Thompson and Frank's Landscaping. Summary judgment was granted to Frank's Landscaping by order entered on January 18, 2008. In addition, the April 28, 2008 consent judgment resolved plaintiffs' claims against Princeton and Thompson. Thereafter, only plaintiffs' claims against Quest remained in the case. Those claims were resolved, however, by the trial court's August 1, 2008 order, which essentially declared that the plaintiffs' claims against Quest were encompassed within the settlement of plaintiffs' claims against Princeton and Thompson. Thus, upon entry of the August 1, 2008 order, the trial court had resolved all claims as to all parties in the case. We therefore conclude that we have jurisdiction to entertain Princeton's and Thompson's appeal.

We turn to Princeton's and Thompson's contention that the trial court erred by ordering Princeton to provide Quest with a defense and indemnification for the claims asserted by plaintiffs against Quest. Princeton and Thompson argue that, under the lease, Quest was required to obtain insurance coverage and name Princeton as an insured. Princeton and Thompson maintain that, because Quest was required to maintain such insurance, and because it was self-insured, Quest had an obligation to provide Princeton and Thompson with a defense and indemnification for plaintiffs' claims in this case. We disagree.

The lease requires Quest to obtain and maintain "comprehensive general liability insurance including contractual liability and personal injury liability," in a specified amount, "on account of bodily injury to or death of one or more persons as the result of any one accident or disaster and on account of damage to property[.]" The lease also requires Quest to name Princeton as an insured under the policy. The lease further requires Princeton to maintain, among other insurance coverage, "comprehensive liability insurance (including bodily injury and property damage) covering [l]andlord's operations at the Project in amounts reasonably required by the [l]andlord's lender or [l]andlord."

Although the lease requires Quest to provide general comprehensive liability coverage and to name Princeton as an insured under that coverage, that provision of the lease did not relieve Princeton of its express obligation under the lease to defend and indemnify Quest with regard to claims arising from "any act or omission of [l]andlord or any . . . of its officers, agents, employees or invitees brought by any person or persons whoso[e]ver, arising out of [l]andlord['s] ownership or control of the Building or Common Facilities." Indeed, the lease requires Princeton to maintain its own liability insurance to cover its "operations" on the premises.

We are therefore convinced that the trial court correctly determined that provisions of the lease requiring the parties to obtain insurance coverage did not override the indemnification provisions of the lease. Indeed, to read the insurance provisions of the contract as requiring Quest to provide Princeton with a defense and indemnification for plaintiffs' claims would essentially nullify the indemnification provisions of the lease.

 
Moreover, Princeton's and Thompson's contention that the insurance provisions of the contract require Quest to indemnify appellants for their own negligence is inconsistent with the general principle that "'a contract will not be construed to indemnify the indemnitee against losses resulting from its own negligence unless such an intention is expressed in unequivocal terms.'" Mantilla v. NC Mall Associates, 167 N.J. 262, 272-73 (2001) (quoting Ramos v. Browning Ferris Indus. of S. Jersey, Inc., 103 N.J. 177, 191 (1986)). Here, the lease does not expressly require Quest to defend and indemnify Princeton and Thompson for their own negligence. The trial court correctly determined that such a duty cannot be implied from the insurance provisions of the agreement.

Affirmed.

In the complaint, plaintiffs erroneously identified Quest as "Quest Diagnostics" and Thompson as "Thompson Realty Co."

The record before us does not include an order denying Princeton's and Thompson's motion for insurance coverage.

As explained later in this opinion, the appeal was premature because a final judgment had not yet been entered in the case. The improper filing of the notice of appeal did not affect the trial court's jurisdiction to rule on the motion. See Savage v. Weissman, 355 N.J. Super. 429, 435 (App. Div. 2002).

We note that plaintiffs have not disputed that their claims against Quest were resolved as part of the settlement reflected in the April 28, 2008 consent judgment. Indeed, as we noted previously, plaintiff's counsel executed a stipulation of dismissal as to all defendants.

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9

A-4394-07T3

June 4, 2009