CAROL BASTEK, et al. v. COMMERCE AND INDUSTRY INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3286-04T13286-04T1

CAROL BASTEK, Executrix of

the Estate of James Bastek, M.D.,

SCOTT BASTEK, CAROL BASTEK, and

JAMIE BASTEK, Individually,

Plaintiffs-Appellants,

v.

COMMERCE AND INDUSTRY INSURANCE

COMPANY,

Defendant-Respondent,

and

AIG CLAIM SERVICES INC.,

and/or AMERICAN INTERNATIONAL GROUP

INC.,

Defendants.

 

Argued November 29, 2005 - Decided February 22, 2006

Before Judges Kestin, Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, Docket No. L-12270-04.

Raymond S. Carroll argued the cause for appellant (Weiner Carroll & Strauss, attorneys; Richard J. Weiner, of counsel; Mr. Carroll, on the brief).

Michael H. Cohen argued the cause for respondent (Schwartz Simon Edelstein Celso & Kessler, attorneys; Mr. Cohen, of counsel and on the brief; Peter J. Vazquez, Jr. and Meghan C. Goodwin, on the brief).

PER CURIAM

Plaintiff Carol Bastek, individually and in her capacity as the Executrix of the Estate of James Bastek, M.D., and plaintiffs Scott Bastek and Jamie Bastek appeal from the December 17, 2004 and the January 27, 2005 orders of the Law Division which granted the motions of defendant Commerce & Industry Insurance Company (CIIC) to dismiss the second and first counts, respectively, of plaintiffs' complaint. We affirm.

On May 22, 1998, Dr. Bastek was killed when the vehicle in which he and the other plaintiffs were riding was struck by a tractor-trailer. The tractor was owned and driven by Isam Sabeil, who had been hired by Inter-Coast Express to haul the trailer and who was operating under Inter-Coast's ICC license. At the time of the accident, Inter-Coast had two insurance policies issued to it by defendant CIIC. The policies were a trucker's Commercial Motor Vehicle policy (the Auto Policy) and a Commercial General Liability policy (the CGL policy). Sabeil and Inter-Coast were defended by CIIC throughout the personal injury litigation commenced by plaintiffs against them and other defendants as a result of the accident. During the pendency of that litigation, CIIC sought leave to deposit the $1 million limit of its Auto policy into court, but withdrew that motion because plaintiffs were unwilling to accept that sum in settlement of their claims against CIIC's insureds.

Following trial, the jury returned a verdict in favor of plaintiffs and against Sabeil, Inter-Coast and others. Molded in accordance with the percentages of fault assigned to Sabeil and Inter-Coast, the verdict was well in excess of the policy limits of the Auto Policy. After entry of the judgment, CIIC paid $982,000 to plaintiffs, representing the $1 million limit of the Auto policy, less storage and towing fees of $18,000.

In September 2004, plaintiffs filed the complaint that gives rise to this appeal. Count One of the complaint demanded that CIIC pay pre- and post-judgment interest on the sum paid pursuant to the Auto policy. Count Two of the complaint sought a declaration that the CGL policy also provided coverage for the losses represented by the jury verdict and demanded that the $1 million policy limit of that policy also be paid over to plaintiffs.

Defendant first moved to dismiss Count Two of the complaint for failure to state a claim on which relief may be granted. See R. 4:6-2(e); Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989). Judge Walsh granted that motion, setting forth his reasons in his written opinion dated December 17, 2004. Shortly thereafter, defendant moved to dismiss Count One of the complaint on the ground that it, too, failed to state a claim on which relief may be granted. Ibid. For reasons explained in his written opinion dated January 27, 2005, Judge Walsh granted that motion as well.

On appeal, plaintiffs argue that the judge failed to afford them the reasonable inferences required by the indulgent Printing Mart standard, misapplied the law and misunderstood the facts with respect to each of the motions. Moreover, they argue, for the first time on appeal, that defendant should have been equitably estoped to deny coverage pursuant to its CGL policy and that the judge should have recused himself from the matter.

We have considered these arguments in light of the record and the applicable legal precedents and have concluded that each of them is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm for substantially the reasons expressed by Judge Walsh in his written opinions dated December 17, 2004 and January 27, 2005. We add only the following brief observations.

Count Two of plaintiffs' complaint, which sought a declaration that the CGL policy provided coverage for the accident, was properly dismissed. Plaintiffs argue that the CGL policy should have afforded coverage for Inter-Coast's negligent hiring or supervision of Sabeil. They note, in support of this claim, that the jury in the underlying litigation found, as a matter of fact, that Inter-Coast was negligent in its hiring and supervision of Sabeil. They further point out that this finding of negligence was the only basis for the attribution of fault to Inter-Coast.

We reject plaintiff's assertion, as did Judge Walsh. Indeed, we have previously concluded that the CGL policy's automobile exclusion precludes plaintiff's claim entirely. See Scarfi v. Aetna Casualty & Surety Co., 233 N.J. Super. 509, 512-14 (App. Div. 1989); see also Richards v. The Princeton Ins. Co., 178 F. Supp. 2d 386 (S.D.N.Y. 2001). The injuries and losses for which plaintiffs were seeking damages occurred in a motor vehicle accident. The plain language of the CGL policy, as Judge Walsh noted, excludes any coverage for bodily injury "arising out of the ownership, maintenance, use or entrustment to others of any . . . 'auto' . . . owned or operated or rented or loaned to any insured." Moreover, the policy defines "auto" broadly to include the vehicle that Sabeil was operating for Inter-Coast at the time of the accident. Regardless of the jury's factual finding about Inter-Coast's negligence, because the injuries arose from the motor vehicle accident, the exclusion bars recourse to the CGL policy. See Conduit & Foundation Corp. v. Hartford Casualty Ins. Co., 329 N.J. Super. 91, 101 (App. Div.), certif. denied, 165 N.J. 135 (2000).

Similarly, we find no error in Judge Walsh's dismissal of Count One of the complaint. There is no question that CIIC paid the full limit of its Auto policy to plaintiffs. In Count One of the complaint, however, plaintiffs sought an award of pre- and post-judgment interest from CIIC pursuant to the Auto policy. That claim fails for several reasons. First, the plain language of the policy excludes payments in excess of the policy limit. In general, the insurer's obligation is limited by the terms of the policy. See Iskander v. Columbia Cement Co., 192 N.J. Super. 114, 122 (Law Div. 1983), aff'd, 197 N.J. Super. 169 (App. Div. 1984).

More to the point, however, plaintiffs, as persons injured by CIIC's insured, are precluded from filing a direct claim against CIIC absent an assignment of rights. See Murray v. Allstate Ins. Co., 209 N.J. Super. 163, 165 (App. Div. 1986); Biasi v. Allstate Ins. Co., 104 N.J. Super. 155 (App. Div.), certif. denied, 53 N.J. 511 (1969). Nor do we agree with plaintiffs' assertion on appeal that they are third-party beneficiaries to the contract of insurance who are therefore entitled to make a direct claim against the policy. Third-party beneficiary status arises only where the parties to the contract intended at the outset to confer a benefit on the third-party sufficient to enforce it in court. See Broadway Maintenance Corp. v. Rutgers, 90 N.J. 253 (1982); Brooklawn v. Brooklawn Housing Corp., 124 N.J.L. 73, 77 (E. & A. 1940). There is no basis on which to conclude that this insurer intended to confer a direct right upon these plaintiffs merely by issuing an insurance policy to Inter-Coast.

In addition, plaintiffs raise two arguments on appeal that they did not present during the proceedings before Judge Walsh. Although we need not address issues raised for the first time on appeal at all, see Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), we have elected to consider them briefly. Plaintiffs first assert that defendant should be equitably estopped from denying either an obligation to pay interest under the Auto policy or more generally, a duty to pay its policy limits under the CGL policy.

Our review of the record demonstrates that the essential prerequisites for a finding of estoppel are entirely absent. See Martinez v. John Hancock Mutual Life Ins. Co., 145 N.J. Super. 301, 313-14 (1976), certif. denied, 74 N.J. 253 (1977); Harr v. Allstate Ins. Co., 54 N.J. 287, 306 (1969). There is, to begin, nothing that demonstrates that this defendant misrepresented any fact or that plaintiffs or CIIC's insured relied on any misrepresentation to their detriment. Plaintiffs' arguments to the effect that CIIC did not defend the litigation pursuant to a reservation is irrelevant because plaintiffs are not defendant's insureds and thus do not fall within the class of persons for whom the estoppel theory might afford relief. See, e.g., Price v. N.J. Mfrs. Ins. Co., 182 N.J. 519 (2005).

Finally, plaintiffs argue, for the first time on appeal, that Judge Walsh should have recused himself. They rely on the fact that Judge Walsh had, in his capacity as a judge, presided over a dispute, seven years earlier, between Dr. Bastek and a former business partner in which the judge had found for Dr. Bastek's partner. We reject as entirely baseless the suggestion that this earlier service as a judge in a matter not concluded to plaintiffs' satisfaction provided a basis for recusal.

 
Affirmed.

Two other defendants, AIG Claims Services Inc., and American International Group, Inc., were named in the complaint and participated in the proceedings in the Law Division. Both of these entities were dismissed from the litigation by stipulation while the appeal was pending.

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A-3286-04T1

February 22, 2006