DAVID SMIT v. LIBERTY MUTUAL INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4865-06T34865-06T3

DAVID SMIT,

Plaintiff-Appellant,

v.

LIBERTY MUTUAL INSURANCE

COMPANY AND MOHAN S. TUCKER,

Defendants-Respondents.

___________________________________

 

Submitted: March 12, 2008 - Decided:

 

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. DC-1057-06.

Gerald J. Smit, attorney for appellant.

Law Offices of Sherman & Viscomi, attorneys for respondent Liberty Mutual Insurance Company (Judith E. Collins, on the brief).

Law Office of Miriam Rubin, attorneys for respondent Mohan S. Tucker (Lisa Perez, on the brief).

PER CURIAM

Plaintiff David Smit was involved in an accident with defendant Mohan Tucker while driving a car owned by his father, Gerald, and sustained $3,026.82 in property damage. On or about September 14, 2004, Tucker's carrier, Liberty Mutual Insurance Company, paid sixty-five percent of the property damage claim, which $1,967.43 check was cashed by Gerald on or about November 19, 2004. The adjuster inadvertently failed to include $1,080 in reimbursement for forty days of car rental.

On February 8, 2006, Smit filed a pro se Special Civil Part complaint against Tucker and Liberty Mutual asserting the following claims: (1) property damage and rental car reimbursement (count one); (2) tort for subordination of perjury (count two); (3) tort for damages resulting from criminal offense of unsafe driving (count three); (4) tort for a violation of N.J.A.C. 11:3-10.5 (count four); (5) tort for a violation of N.J.S.A. 17:29B-4 - unfair deceptive acts or practices by insurance provider (counts five and six); (6) statutory violations of the New Jersey Consumer Fraud Act (count seven); and (7) violation of bad faith insurance law (count eight).

On May 2, 2006, Liberty Mutual Claim Specialist Kevin Vannozzi offered to settle for the full amount of property damage and car rental reimbursement less the prior payment in return for dismissal of the suit. On May 4, 2006, Vannozzi received a voicemail message from Gerald accepting the settlement offer of $2,134.39. Vannozzi noted that the case was resolved and erased the voicemail. On May 4, 2006, Liberty Mutual's attorney sent Gerald a letter confirming the settlement and forwarding a release and stipulation of dismissal, noting that upon receipt of the signed documents a check for the outstanding amount would be mailed. The letter further noted that as a pro se litigant, plaintiff had to sign all the documents himself.

Plaintiff did not sign the required settlement documents. Gerald informed defense counsel the settlement had been conditional on receipt of the check by May 12, 2006, prior to executing any settlement documents, and that such terms had been demanded in his voicemail. The conditional acceptance was disputed by Vannozzi. According to Gerald, plaintiff's acceptance of the settlement expired when the check was not timely received, and by letter of May 17, 2006, he offered a counter-proposal for settlement. Defendants then filed motions to compel settlement. The court heard oral argument on July 14, 2006, and permitted Gerald, who appeared on behalf of plaintiff, to testify as to his involvement with representatives of Liberty Mutual. Based on the reasons articulated on the record following oral argument and in the court's statement of reasons, by order of July 14, 2006, Judge Kumpf granted the motion to enforce settlement of the property damage claim against Tucker; ordered plaintiff to execute and deliver releases within ten days to Liberty Mutual, which would in thirty days of receipt issue a check to plaintiff for the amount of $2,133.82 ($2,069.82 plus filing fee), and dismissed the case with prejudice. Plaintiff, however, failed to deliver the documents.

On August 24, 2006, plaintiff filed a motion for reconsideration, and "to enforce a settlement agreement [for $50,000] between Plaintiff and Defendant Tucker made prior to the Order of the Court filed July 14, 2006." Although the motion for reconsideration was filed outside of the twenty-day deadline, R. 4:49-2, the court entertained the motion and heard argument on September 29, 2006. For the reasons articulated on the record and in the statement of reasons attached to the order on that date, the court denied plaintiff's motion for reconsideration and to enforce the alleged earlier settlement with Tucker. The court commented that plaintiff failed to provide the releases required by the July 14, 2006 order and warned that costs would be assessed against him for further enforcement actions by defendant.

On October 18, 2006, plaintiff filed a second motion for reconsideration, which was denied by order of November 13, 2006. In the attached statement of reasons, the court referenced its prior admonition to plaintiff about assessing costs, determined that plaintiff should be assessed defendant's attorney's fees as costs for responding to the reconsideration motion, which were to be deducted from the proceeds of the settlement, and directed defendant to submit an affidavit of services. By order of January 9, 2007, the court awarded a $250 fee to Tucker's counsel. On January 12, 2007, the court entered an order denying plaintiff's third motion for reconsideration, filed on December 18, 2006. In its annexed statement of reasons, the court directed plaintiff to provide the previously-ordered releases, noted that defense compliance costs would continue to be assessed against him, and offered Tucker's attorney the opportunity to submit an affidavit of services to be paid by plaintiff's counsel.

During January through March 2007, plaintiff filed multiple motions seeking various forms of relief, including leave to amend his complaint to assert RICO charges against Liberty Mutual, a protective order, demands regarding requests for admission and inspection, and a stay of the judge's decisions pending Liberty Mutual's responses. By orders of February 9, February 26, March 23, and April 30, 2007, the court denied plaintiff's motions. In a statement of reasons accompanying the April 30, 2007 motion, the court invited Tucker and Liberty Mutual's counsel to submit affidavits of services for responding to the motion, which it classified as "essentially seeking a fourth reconsideration" of the initial order directing enforcement of the settlement. By order of May 16, 2007, the court entered a $750 counsel fee award "payable by counsel for plaintiff, which may not be passed on to the client."

Plaintiff filed a notice of appeal of Judge Kumpf's July 14, 2006; February 26, 2007; March 23, 2007; and April 30, 2007 orders. Plaintiff asserts the following arguments: (1) the July 14, 2006 judgment should be overturned as the court did not apply the law to determine if any agreements existed between the parties; (2) the court erred in finding that a settlement occurred in 2006 and therefore its July 14, 2006 judgment should be overturned; (3) the court erred in finding that plaintiff agreed to a settlement in 2004 and if such is the basis for its judgment then its July 14, 2006 order should be overturned; (4) the court erred in not allowing plaintiff to file a supplemental complaint against Liberty Mutual's RICO activities and we should allow such pleading amendment; (5) the court erred in denying that Liberty Mutual's actions created liability for bad faith; (6) the court erred in awarding sanctions to defendants; (7) the court erred in "not requiring Liberty to expand upon its answer to a request for admission that is 'Unable to admit or deny' [108a-admission 3] that it had no contact with the person of the Plaintiff [107a-request for admission 3] after it had certified to the court that in a conversation with said person, said person had verbally agreed to the settlement; and the court relied upon such certification"; (8) plaintiff should be allowed to reargue the case as the trial court directed that plaintiff could not say that defendants did anything dishonest; (9) if this court enters judgment for the respondents, the trial court's ruling will continue to make New Jersey insurance rates the highest in the nation; (10) the trial court erred by addressing a false settlement directed at only a single claim of plaintiff's pleading and therefore the trial court's July 14, 2006 order should be overturned; and (11) the trial court's July 14, 2006 judgment "is so based on erroneous facts, misapplication of those facts, and the absence of additional material facts of the matter so as to be useless for determining the defendants' liability and the judgment should therefore be overturned."

An appellate court, in reviewing a judgment entered in a non-jury case, should not disturb the findings on which the judgment is based unless they "are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). "[T]he appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Id. at 484. A trial judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence." Ibid. We have reviewed plaintiff's arguments on appeal in light of the record and the applicable law. Plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied the judgments challenged are based on findings of fact adequately supported by the evidence, R. 2:11-3(e)(1)(A), and the judge acted within his discretion and properly applied the law to the issues before him. We affirm substantially for the reasons articulated by the trial judge in his numerous statements of reasons following plaintiff's repetitive, and often unintelligible, motions.

 
Affirmed.

We intend no disrespect by the use of the first name but do so to avoid confusion.

Gerald is an attorney but he had not filed a substitution of attorney in the Special Civil Part litigation. Defense counsel sent the correspondence directly to Gerald because previous mail directed to plaintiff, who apparently was a college student, had been returned.

(continued)

(continued)

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A-4865-06T3

April 7, 2008