FELIX SUAREZ v. DAVID SAINATO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3879-08T23879-08T2

FELIX SUAREZ and IRIS SUAREZ,

his wife, per quod,

Plaintiffs-Appellants,

v.

DAVID SAINATO, EDWARD SANCHEZ,

PORT OF SPAIN RESTAURANT, INC.,

MIGUEL AGUIRRE, ALEXANDER VANEGAS,

and LORETO BENITEZ,

Defendants-Respondents.

____________________________________

 

Submitted May 24, 2010 - Decided

Before Judges R. B. Coleman and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-288-06.

Jay and Kampf, LLC, attorneys for appellants (Jeffrey T. Kampf, on the brief).

Respondents have not filed a brief.

PER CURIAM

Plaintiffs, Felix and Iris Suarez, appeal from orders of the Law Division that denied their motion for leave to amend their complaint in order to name First Trenton Indemnity Insurance Company (First Trenton) as a direct defendant and denied reconsideration of that ruling. Plaintiffs argue that the motion judge improperly denied their application to amend the complaint. Based upon our review of the record, we are convinced, however, that the motion judge properly determined, in the exercise of sound discretion, that plaintiffs did not provide a sufficient basis to join the insurance carrier of one of the defendants as a direct defendant in the underlying tort action. We affirm the orders from which plaintiffs appeal.

Plaintiffs filed their complaint on January 13, 2006. That complaint contained eight counts whereby plaintiffs sought to recover damages for personal injuries sustained by Felix Suarez on February 6, 2004 when he was allegedly assaulted at the Port of Spain Restaurant (Port of Spain) in Hoboken. A ninth count asserted a claim for loss of consortium on behalf of Felix's wife, Iris. Plaintiffs named as defendants in the complaint David Sainato and Edward Sanchez, the alleged assailants, as well as Port of Spain and certain identified employees of Port of Spain who were alleged to have breached a duty to protect Suarez while he was a patron at the restaurant (collectively the restaurant defendants).

As of August 4, 2006, plaintiffs' complaint was dismissed sua sponte by the court, without prejudice. In response, plaintiffs moved to restore the complaint to the court's active calendar so that the restaurant defendants could enter their appearances and file responsive pleadings. The motion also sought the entry of default against defendant David Sainato and leave to amend the complaint to add First Trenton as a direct defendant. The certification of counsel for plaintiffs, submitted in support of the motion, alleged, upon the information and belief, that First Trenton insured Sainato at the time of the incident that is the subject of the complaint. The basis of the information and belief was not disclosed in the certification.

Without oral argument, the motion was decided and memorialized by order dated September 8, 2006. Pursuant to that order, the court restored the case to the active calendar, entered default against Sainato and directed that a proof hearing be scheduled within thirty days. The court denied plaintiffs' request for leave to file an amended complaint, and at the bottom of the order, the judge wrote "Insufficient basis provided to name tortfeasor's insurance carrier as a direct defendant."

In early January 2007, plaintiffs filed a second motion. That motion sought: (a) restoration of the case to the court's active calendar; (b) entry of a default judgment against defendant David Sainato; and, (c) leave to file an amended complaint upon reconsideration. The proposed amended complaint contained two counts that sought relief against First Trenton on the premise that plaintiffs are victims of defendant Sainato's alleged "negligent, careless, reckless and/or intentional conduct" and, as such, they are intended third-party beneficiaries of the contractual relationship between Sainato and First Trenton. As with the earlier motion, no documentation was presented to establish the relationship between Sainato and First Trenton, and no certification of either of those parties verified coverage for the injuries sustained by plaintiff Felix Suarez.

The court, by order dated February 2, 2007, granted plaintiffs' request for restoration and though it denied default judgment, it directed, as before, that a proof hearing be scheduled within thirty days. As before, the court denied leave to file the proposed amended complaint, stating "[t]he application to amend the complaint is denied as there is no sufficient basis for the court to reconsider its earlier ruling." Two months later, on April 11, 2007, a proof hearing was conducted, after which judgment, dated April 18, 2007, was entered and filed in favor of plaintiffs and as against defendant David Sainato, only, in the total judgment amount of $395,536.54. That total amount includes $100,000 for estimated future medical costs, $20,536.54 for unreimbursed medical bills and $75,000 for plaintiff Iris Suarez' per quod claim. The judgment recites that the court found, among other things, "that defendant David Sainato intentionally and without provocation assaulted plaintiff Felix Suarez" and that "some or all of the injuries are permanent in nature."

Almost two years later, when the matter was called for trial on March 9, 2009, as to the restaurant defendants, an order of disposition was entered and filed by the court to reflect a settlement of the remaining claims between the plaintiffs and those defendants. Soon thereafter, on April 15, 2009, plaintiffs filed their Notice of Appeal in this matter to challenge the orders filed on September 8, 2006 and February 2, 2007, that denied them leave to amend their complaint to join First Trenton as a direct defendant. First Trenton has not appeared in the action.

We begin our analysis with the observation that the record on this appeal is sparse. The motion judge denied plaintiffs' initial motion to join First Trenton as a direct defendant because there was an "insufficient basis provided to name [the] tortfeasor's insurance carrier as a direct defendant," and, on essentially that same record, the court denied plaintiffs' request for reconsideration. Though the trial judge merely stated on the motion for reconsideration that there was no sufficient basis for reconsideration, we note that the motion filed, in early January 2007, was also untimely. It was not filed within twenty days after service of the September 8, 2006 order, as Rule 4:49-2 requires.

More importantly, the renewed application and the certification submitted in support did not bring to the court's attention any statement of matters or controlling decisions that are alleged to have been overlooked by the court or as to which it erred when it first denied leave to add the insurance carrier as a direct defendant. Ibid.; Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996). Consequently, we are satisfied that the motion judge was justified substantively in denying the motion for leave to amend the complaint. The only support for the requested amendment was the certification of plaintiffs' counsel, offered upon information and belief, that First Trenton insured Sainato at the time of the incident. Rule 1:6-6 provides that if a motion is based on facts not appearing of record or not judicially noticeable, the court may hear it on affidavits, but the affidavits must be "made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein."

Here, the attorney did not profess any personal knowledge and did not disclose the source of the information or the basis for the asserted belief upon which he and plaintiffs relied. Counsel did not provide a copy of the policy, certified or otherwise, to the court. Although counsel stated in his certification that First Trenton was aware of plaintiffs' claim against Sainato, counsel did not aver that First Trenton acknowledged coverage or a duty to defend. Indeed, and this assumes that a policy does exist for the relevant time period, counsel asserts that First Trenton had refused to enter an appearance on behalf of Sainato as a result of Sainato's alleged lack of cooperation. Compare Dougherty v. The Hanover Ins. Co., 114 N.J. Super. 483, 488 (Law Div. 1971) (involving an automobile liability policy, pursuant to which the insurance company subjected the non-cooperating insured to the jurisdiction of the court by having filed an answer on his behalf). Under the circumstances of this case, where there is no claim that the insurer has prejudiced the position of the insured or the victim, the motion judge was not obliged to grant the motion to join a disputed coverage issue with the underlying tort action involving multiple defendants.

It is not enough for plaintiffs to point to the general proposition that amendments of pleadings are to be "freely given in the interest of justice." R. 4:9-1. "'[T]he granting of the motion to file an amended complaint always rests in the court's sound discretion.'" Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 501 (2006) (quoting Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998)).

Plainly, the disputed coverage issues militated against granting a motion that would bring those disputes into the litigation of the underlying tort. Our Supreme Court has recognized that "'[t]he duty to defend comes into being when the complaint states a claim constituting a risk insured against.'" Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 173 (1992) (quoting Danek v. Hommer, 28 N.J. Super. 68, 77 (App. Div. 1953), aff'd o.b., 15 N.J. 573 (1954)). "Whether an insurer has a duty to defend is determined by comparing the allegations in the complaint with the language of the policy. When the two correspond, the duty to defend arises, irrespective of the actual merit." Ibid. Here, the policy was not provided, and the requisite comparison could not be made.

We note further that the complaint alleged intentional conduct on the part of Sainato and, in the form of judgment entered after the proof hearing, the court specifically found that "defendant David Sainato intentionally and without provocation assaulted plaintiff Felix Suarez." Not having had an opportunity to review the policy, the motion judge could not, as we obviously cannot, express any view as to whether the assertedly intentional acts of the insured were covered or excluded; however, the refusal of the carrier to acknowledge or to provide coverage would have been a relevant consideration on the motion for leave to join the carrier as a direct defendant.

It is not uncommon for the determination of disputed coverage issues to be litigated separately from the litigation of the underlying tort action. For example, in its opinion in Burd v. Sussex Mut. Ins. Co., the Court observed:

Whenever the carrier's position so diverges from the insured's that the carrier cannot defend the action with complete fidelity to the insured, there must be a proceeding in which the carrier and the insured, represented by counsel of their own choice, may fight out their differences. That action may, as here, follow the trial of the third party's suit against the insured. Or, unless for special reasons it would be unfair to do so, a declaratory judgment proceeding may be brought in advance of that trial by the carrier or the insured, to the end that the third-party suit may be defended by the party ultimately liable.

[ 56 N.J. 383, 391 (1970) (citation omitted).]

We perceive nothing unfair about a separate declaratory judgment action by Sainato or by plaintiffs to adjudicate the issue of coverage with First Trenton. In fact, we are aware of no legitimate reason why such an action could not have been commenced even prior to plaintiffs' resolution of their claims against the remaining defendants. As Rule 4:42-3 provides, "[a] judgment for declaratory relief, if appropriate, is not precluded by the existence of another appropriate remedy."

In any event, we do not agree with plaintiffs that the judge in the Law Division abused his discretion by denying them leave to amend the complaint. Plaintiffs' burden may have been light, but plaintiffs failed to meet it. After they were told their initial proofs were insufficient, plaintiffs brought the same proofs for reconsideration. Both motions were appropriately denied.

Affirmed.

 

There has been no appearance in this appeal on behalf of Edward Sanchez, and we have been unable to find any order, or for that matter, any statement in the record indicating the disposition of plaintiffs' claims against Sanchez. Indeed, the record does not even reflect whether he was ever served.

The only support for the filing of the amended pleading was the certification of plaintiffs' counsel, upon information and belief, that First Trenton insured Sainato at the time of the incident and counsel's assertion that First Trenton was aware of the claim and was refusing to enter an appearance on behalf of Sainato as a result of his alleged lack of cooperation.

(continued)

(continued)

11

A-3879-08T2

 

September 3, 2010