WORLD INSURANCE ASSOCIATES, LLC v. ANDREW B. FEINMAN

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1936-19T2

WORLD INSURANCE
ASSOCIATES, LLC,

          Plaintiff-Respondent,

v.

ANDREW B. FEINMAN,

     Defendant-Appellant.
____________________________

                   Argued November 10, 2020 – Decided December 14, 2020

                   Before Judges Fisher and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Docket No. L-3327-18.

                   Scott E. Reiser argued the cause for appellant (Lum,
                   Drasco & Positan, LLC, attorneys; Scott E. Reiser and
                   Dennis J. Smith, of counsel and on the briefs).

                   Christopher J. Marino argued the cause for respondent
                   (Giordano, Halleran & Ciesla, attorneys; Christopher J.
                   Marino, of counsel and on the brief; Peter J. Guastella,
                   on the brief).

PER CURIAM
      Defendant Andrew Feinman appeals a summary judgment entered in favor

of plaintiff World Insurance Associates, LLC, arguing the trial judge erred by:

(1) denying him discovery he claims was "critical to the resolution of any

disputed matter"; (2) deciding the merits when there were "multiple material

factual issues"; and (3) awarding World a reasonable attorneys' fee. We find no

merit in these arguments and affirm, substantially for the reasons set forth by

Judge Owen C. McCarthy in his written opinion.

      In its complaint, World alleged it is an insurance broker in the business of

procuring insurance for clients. Feinman, the owner of Staple Trucking Corp.,

enlisted World's assistance in procuring insurance policies in connection with

Staple's operations, and in 2017, World obtained policies and arranged for

Staple's payment of the premiums through financing with IPFS Corporation. To

reduce Staple's initial down payment and to secure preferred financing terms for

Staple's benefit, World entered into an agreement with IPFS by which World

guaranteed Staple's payments to IPFS in an amount no greater than $55,180. To

ensure that it would not be left holding the bag if a default occurred, World

obtained from Feinman his personal guarantee to be personally liable for any

payments World might be required to pay IPFS on Staple's behalf. Feinman's

personal guarantee also contains a provision by which he agreed to pay World's


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reasonable attorneys' fees should World become obligated to seek collection

from Feinman.     With these agreements in place, IPFS advanced premium

payments on Staple's behalf.

      Staple later defaulted on its obligations to IPFS under the financing

agreement, and IPFS sent notice to both Staple and World of its intent to cancel

the insurance policies.   The notice obligated Staple to make good on its

outstanding obligation by September 18, 2017, to avoid cancellation. Staple

failed to honor that request, triggering World's obligation to IPFS to pay on

Staple's behalf any earned but unpaid premiums.

      Staple, which, on September 1, 2017, merged with another entity (Elantra

Logistics, Inc.), emailed World on September 13, 2017, requesting a termination

of the insurance policies effective two days later, despite the provision in the

financing agreement that Staple give IPFS ten days' notice of the cancellation of

any policy. On September 19, 2017, IPFS sent World and Staple notice of the

cancellation of the policies World had procured on Staple's behalf as of

September 23, except for the commercial auto policy that could not be

effectively cancelled under federal regulations until November 1, 2017.

      As a result of all these events, IPFS calculated that Staple owed IPFS

$58,624.09 in earned but unpaid premium payments under the financing


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agreement. Under its guarantee to IPFS, World was obligated to reimburse IPFS

$55,180. On May 1, 2018, World paid that amount in response to IPFS's

demand.

      A few months later, World commenced this suit against Feinman for relief

based on Feinman's personal guarantee. In April 2019, the trial court entered a

case management order that established a December 8, 2019 discovery end date.

After serving and responding to "paper" discovery, and after deposition notices

were served but before depositions were taken, World moved for summary

judgment. On September 11, 2019, Judge McCarthy granted the motion for

reasons set forth in a written decision appended to his order. Because Feinman's

personal guarantee included a stipulation that required his payment of World's

collection costs, including reasonable attorneys' fees, Judge McCarthy found

Feinman so obligated, and in applying the principles set forth in Rendine v.

Pantzer,  141 N.J. 292 (1995), determined that Feinman was obligated to pay

World's fees of $34,264.62, for a total judgment in World's favor of $89,444.62.

      As noted above, in appealing, Feinman first argues that the grant of

summary judgment was premature because discovery had not been completed.

Depositions that were noticed did not occur, and the parties never got to the

stage of exchanging expert reports, let alone deposing those experts.       But


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Feinman was unable to establish that any of the noticed depositions might

generate or support his claim of disputed material facts.

      Even if filed prior to the completion of discovery, a summary judgment

motion will be ripe for disposition unless the opponent can demonstrate there is

a likelihood that further discovery would supply information needed to establish

a missing element in the claim or a valid defense. See Badiali v. N.J. Mfrs. Ins.

Grp.,  220 N.J. 544, 555 (2015); Mohamed v. Iglesia Evangelica Oasis De

Salvacion,  424 N.J. Super. 489, 498 (App. Div. 2012); J. Josephson, Inc. v.

Crum & Forster Ins. Co.,  293 N.J. Super. 170, 204 (App. Div. 1996); Auster v.

Kinoian,  153 N.J. Super. 52, 56 (App. Div. 1977).           We agree with Judge

McCarthy's determination that Feinman failed to show that the outstanding

discovery could generate factual questions about either the meaning of the

contractual provisions in question or their enforcement.

      In rejecting Feinman's first argument and turning to his second, we are

satisfied that World promised IPFS – in unambiguous language – to reimburse

IPFS what Staple did not timely pay without imposing on IPFS a preliminary

duty to seek relief from Staple. In addition, World waived "all errors and

omissions in connection with IPFS' administration of the guaranteed debt"

absent bad faith. In turn, Feinman similarly promised to pay World all earned


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                                        5
premiums and other financial obligations "paid by World . . . on behalf of

[Staple]" without World first having to seek relief from Staple. World's action

arises from the application of these simple, unambiguous agreements.

      World was thus compelled to pay $55,180 to IPFS because of Staple's

default, thereby fixing the principal sum due from Feinman to World and

triggering, as well, Feinman's obligation to pay World's reasonable attorneys'

fees since World was put to the trouble of enlisting counsel to enforce Feinman's

guarantee. As to this third and final aspect of the appeal, Feinman argues only 1

the presence of questions of fact about whether the agreement allowed for an

award of fees in these circumstances. We find no merit in Feinman's argument.

      There is no ambiguity in the parties' fee provision. Feinman agreed to pay

"all cost of collection, including reasonable attorney fees, whether or not a law

suit is commenced as part of the collection process." In avoiding this clear

obligation, Feinman argues that the court required "testimony to define the

phrase 'cost of collection'" as it appears in the agreement, and claims that it is

not clear whether that phrase "applies to disbursements, to pre-judgment

collection costs, to post-judgment collection costs or to any combination"


1
   In his merits brief, Feinman states that he "does not object to the trial court's
substantive analysis of [World's] fee application, or the amount by which the
trial court reduced [World's] claim fees."
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thereof. The clause in question is not ambiguous because it cannot be plausibly

interpreted as including anything less than all those things. See Nester v.

O'Donnell,  301 N.J. Super. 198, 210-11 (App. Div. 1997) (recognizing that

contract ambiguity is a question of law determined by whether the contract is

"susceptible to at least two reasonable alternative interpretations").

      The clause in question certainly applies to pre-suit efforts, since it

obligates Feinman to bear World's reasonable fees "whether or not a law suit is

commenced." We see no reason, and none is offered, why the broad terms

included in this provision would not include whatever pains World has been –

or will be – put in seeking full reimbursement, subject only to the requirement

that those costs be "reasonable."

      To the extent we have not specifically referred to every argument

contained in Feinman's lengthy written submissions, we find any such additional

arguments to lack sufficient merit to warrant further discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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