ABRAHAM D. FEUER v. BERKYS A. MERCEDES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1904-11T1

ABRAHAM D. FEUER AND SARAH FEUER,

Husband and Wife,

Plaintiffs-Respondents/

Cross-Appellants,

v.

BERKYS A. MERCEDES, DANIEL E.

MERCEDES, VALERIE J. MACON,

and CUIDADO CASERO,

Defendants,

and

HANOVER INSURANCE COMPANY,

Defendant/Third-Party

Plaintiff-Appellant/

Cross-Respondent,

v.

VALERIE J. MACON AND CUIDADO

CASERO,

Third-Party Defendants.

_________________________________

November 21, 2012

Argued October 23, 2012 - Decided

Before Judges Reisner and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1885-05.

Neil A. DeCostanza argued the cause for appellant/cross-respondent (Law Offices of Terkowitz & Hermessmann, attorneys; Fred Ira Eckhaus, on the brief).

Jerry Eisdorfer argued the cause for respondents/cross-appellants(Eisdorfer, Eisdorfer & Eisdorfer, L.L.C., attorneys; Mr. Eisdorfer, of counsel and on the brief).

PER CURIAM

Defendant Hanover Insurance Company (Hanover) appeals, and plaintiffs Abraham D. and Sarah Feuer cross-appeal, from a November 16, 2011 order denying plaintiffs' motion to vacate an August 15, 2008 order granting summary judgment in favor of Hanover.

Although the November 16 order was entered in its favor, Hanover purports to "appeal" from dicta in the motion judge's opinion. Because Hanover prevailed on the November 16 motion, and because appeals are taken from orders, not from judicial opinions, we dismiss Hanover's appeal. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001).

On the cross-appeal, we affirm the November 16, 2011 order, because plaintiffs did not file their motion within one year of the August 15, 2008 order, as would be required for a motion based on mistake or excusable neglect under Rule 4:50-1(a). See R. 4:50-2. Nor was their motion filed within a reasonable time after entry of the order, as is required for motions filed under all sections of Rule 4:50-1, including subsection (f). See R. 4:50-2; Deutsche Bank v. Angeles 428 N.J. Super. 315, 319 (App. Div. 2012); Orner v. Liu, 419 N.J. Super. 431, 437-38 (App. Div.), certif. denied, 208 N.J. 369 (2011).

I

This is what happened. On June 16, 2003, a car driven by Berkys A. Mercedes was involved in an accident with a car driven by Abraham D. Feuer. The Mercedes vehicle was insured with a $15,000 liability policy.1 The Feuer vehicle was insured with a policy from Hanover that provided $100,000 in underinsured motorist (UIM) coverage. On June 17, 2005, plaintiffs filed a personal injury lawsuit against Mercedes, and in November 2006, plaintiffs' counsel put Hanover on notice that their damages would probably exceed the Mercedes policy limits. See Zirger v. General Accident Ins. Co., 144 N.J. 327 (1996). Hanover promptly intervened in the lawsuit to protect its interests, and it eventually consented to plaintiffs settling with Mercedes for the $15,000 provided by her insurance policy.

During discovery, the parties explored the possible existence of additional insurance coverage for the accident. At a November 2007 deposition, Mercedes testified that she worked as a home health aide employed by Cuidado Casero (Casero), and that at the time of the accident, she was on her way to visit a patient. She testified that her employer had workers' compensation coverage with Liberty Mutual, which paid for her medical treatment following the accident.

In August 2008, Hanover filed a motion for summary judgment, apparently premised on the theory that Mercedes' employer, Casero, was respondeat superior liable for her negligence and that plaintiffs could recover their damages from Casero's insurance. Judge John A. Peterson granted the application by order dated August 15, 2008. The order provided that, for "reasons stated on the record," the motion was granted "on the theory of vicarious liability and respondeat superior against Cuidado Casero," and ordered that Casero "provide a defense and indemnification, or provide an insurance policy providing a defense and indemnification to the defendant, Berkys Mercedes."

However, neither party to this appeal has provided us with a complete set of the motion papers filed in support of or in opposition to the summary judgment application. Because no party has provided us with the proofs, or with Judge Peterson's statement of reasons, we cannot determine the legal basis for the 2008 order, or its legal significance. In particular, we cannot fairly predict what if any estoppel effect it should have in any future litigation between plaintiffs and Hanover concerning UIM coverage.

Three years later, in August 2011, plaintiffs filed a motion pursuant to Rule 4:50-1(f), to vacate the summary judgment order and reinstate the complaint against Hanover. In support of the 2011 motion plaintiffs' counsel filed a certification, attesting that on the 2008 motion, Hanover had submitted a copy of a Liberty Mutual workers' compensation and employer liability policy, covering the period 2007-2008, as its proof that Casero had liability insurance covering the accident. The certification further asserted that "Plaintiff did not oppose co-defendant Hanover's motion for summary judgment benefits as at the time of the motion all parties believed that either the Liberty Mutual insurance policy identified by Hanover in its motion, and/or some other unknown policy, would provide commercial insurance coverage for Berkys Mercedes as Cuidado Casero's employee." The attorney also certified that instead of opposing Hanover's motion, plaintiffs moved for summary judgment against Casero and moved for a court order requiring Casero "to supply a commercial insurance policy providing a defense and indemnification of defendant Mercedes."2 The certification then recited that plaintiffs eventually went to trial against Casero and recovered a $100,000 verdict but were never able to collect it.

According to the certification, Casero's attorney eventually identified an insurance policy purportedly in effect at the time of the accident but advised that Casero never notified that insurer about the accident. In the record is a November 16, 2009 letter from Darwin J. Bruce of Dallas, Texas, advising plaintiffs' attorney that Casero had "located a copy of an additional commercial general liability insurance policy" that might provide coverage for the accident, and suggesting that plaintiffs submit their claim to that insurance company. The attached declarations page indicated that the policy covered the period February 19, 2003 to February 19, 2004, clearly identified the policy as written by "CERTAIN UNDERWRITERS AT LLOYD's," and gave the policy number. However, inexplicably, plaintiffs' counsel contended in his 2011 motion certification that he did not know the "specific identity" of the insurer that wrote the policy, and he apparently never contacted Lloyd's to assert plaintiffs' claim under the policy.

At the November 2, 2011 oral argument of the motion before Judge James Den Uyl, both counsel represented to Judge Den Uyl that they had been "very collegial" with each other at the time of Hanover's 2008 summary judgment motion, and they had both believed at the time that Casero had a policy of liability insurance that exceeded the $100,000 limits of the Hanover policy. But Hanover's attorney argued that once plaintiffs' counsel learned that there was no Casero policy, he had one year to file a motion under Rule 4:50-1(a), seeking to vacate the judgment based on mistake. Judge Den Uyl noted that the 2008 order was addressed to the issue of respondeat superior but did not by its terms state that Hanover had no obligation to provide UIM benefits to plaintiffs. The judge also noted that under the terms of the Hanover policy, plaintiff had six years in which to assert a UIM claim.

On November 16, 2011, Judge Den Uyl issued a written opinion denying plaintiffs' motion to reopen the 2008 order. He found that Hanover had not presented the court with a sufficient record to establish that the 2008 order had the preclusive effect that Hanover asserted it had. However, he also concluded that plaintiffs were seeking the wrong remedy, using the wrong procedure. He reasoned that "plaintiff never asserted a claim against Hanover . . . in this lawsuit. There is, consequently, no claim to reinstate." The judge opined that plaintiffs were asking

this Court to reinstate the lawsuit and allow plaintiff to amend the complaint to add and convert Hanover Insurance Company to a direct defendant and assert a first party claim that would compel Hanover . . . to arbitrate because . . . it would appear there is no insurance available beyond the tortfeasor's $15,000 policy. Plaintiff, however, did not make formal demand for arbitration for UIM benefits . . . but [improperly] used this lawsuit as a vehicle to bring the matter to a head.

The judge held that under the circumstances, plaintiffs had not presented facts to support relief under Rule 4:50-1(f). The judge noted that he expressed no view as to whether plaintiffs might still be able to file a demand for UIM arbitration.

II

We review Judge Den Uyl's decision, denying plaintiffs' motion for relief under Rule 4:50-1(f), for abuse of discretion. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994); Piscitelli v. Classic Residence by Hyatt, 408 N.J. Super. 83, 102 (App. Div. 2009). We find none.

As noted earlier in this opinion, neither party placed before us or before Judge Den Uyl the full record of the motion before Judge Peterson that led to his 2008 summary judgment order. Therefore, neither the trial judge nor this court is in a position to gauge the preclusive effect, if any, of that 2008 order on plaintiffs' right to pursue a UIM claim through arbitration. We find no abuse of the judge's discretion in suggesting that, next time, plaintiffs should present the issue more directly by demanding UIM arbitration and seeking to enforce arbitration if Hanover refuses their demand. Additionally, we find that even if plaintiffs' application were procedurally correct, it was filed years out of time to satisfy the requirement of Rule 4:50-2, that all such motions be filed within a reasonable time. See Deutsche Bank v. Angeles, supra, 428 N.J. Super. at 319. A motion based on mistake or excusable neglect under Rule 4:50-1(a), must be filed within one year, a time deadline plaintiffs also failed to satisfy. R. 4:50-2.

Finally, the record before us suggests that both sides in the 2008 motion may have manifested an inappropriately casual approach to the central factual issue governing UIM coverage -- whether Casero had at least $100,000 in liability insurance that would be available to cover this accident. Both parties may have assumed that a workers' compensation policy dated 2007-2008 somehow proved that Casero had auto or comprehensive general liability coverage for a much earlier period. Even more puzzling is the fact that Casero apparently had a $1 million liability policy issued by Lloyd's of London for 2003-2004, but nothing in this record suggests either that plaintiffs have pursued the issue of coverage under that policy or that Lloyd's has denied coverage. Consequently, even assuming that the 2008 order has the preclusive effect that Hanover claims it does, plaintiffs have not demonstrated that "it would no longer be just" to enforce that order. See R. 4:50-1(f); In re Guardianship of J.N.H., 172 N.J. 440, 476 (2002).

Affirmed.

1 A third vehicle was involved in the accident, but the driver of that vehicle is not a party to this appeal.

2 At oral argument of this appeal, plaintiffs' counsel asserted that he relied on a "representation" from Casero's then-attorney, who advised him that Casero had a liability insurance policy in effect at the time of the accident.