SUBHASH TANDON AND SUDERSHAN TANDON v. EDWARD P. HAMILTON, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2340-05T52340-05T5

SUBHASH TANDON AND SUDERSHAN

TANDON,

Plaintiffs-Appellants,

v.

EDWARD P. HAMILTON AND UNSATISFIED

CLAIM AND JUDGMENT FUND BOARD, a body of

Politic of the State of New Jersey,

Defendants-Respondents,

and

EDWARD P. HAMILTON,

Third-Party Plaintiff,

v.

ATLANTIC INDEMNITY INSURANCE CO.

Third-Party Defendant.

________________________________________________________________

 

Argued May 15, 2007 - Decided July 3, 2007

Before Judges Lisa, Holston, Jr. and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-12304-98.

Subhash Chander Tandon, appellant pro se, argued the cause for appellants.

Peter C. Bobchin argued the cause for respondent Edward P. Hamilton (John C. Lane, attorney; Mr. Bobchin, on the brief).

Stephen E. Gertler, attorney for respondent Unsatisfied Claim and Judgment Fund Board (Annmarie Flores, on the brief).

PER CURIAM

Plaintiff, Subhash Tandon, appeals the Law Division's December 5, 2005 order of disposition. The order recites that plaintiff's personal injury negligence complaint against defendant, Edward P. Hamilton (Hamilton), resulted in a settlement while the matter was scheduled for trial.

On November 17, 1998, plaintiff served a personal injury negligence complaint on Hamilton and the Unsatisfied Claim and Judgment Fund Board (UCJFB) arising out of a June 1, 1998 bicycle/motor vehicle accident.

The relevant facts giving rise to the complaint may be summarized as follows. Plaintiff was riding a bicycle on Broadway in Newark on June 1, 1998 when he was struck by a parked car door that suddenly opened in front of him. Plaintiff sustained injuries to his left elbow, knee and shoulder, required open reduction surgery on his elbow and has permanent disability in his elbow. Hamilton was the owner and operator of the parked car. Hamilton's permanent residence in the police report was listed as Florida and his driver's license was issued in Florida. However, his vehicle had New Jersey license plates and was registered at an East Orange address.

During the course of discovery, Hamilton revealed that he made arrangements to obtain automobile insurance through Atlantic Indemnity Insurance Company (Atlantic), an insurance company headquartered in North Carolina and unlicensed to issue insurance policies in New Jersey. Hamilton had purchased his policy through Insurance Services Management Agency, an agent in Florida, which apparently never forwarded Hamilton's premium payments to Atlantic or issued a policy for him. Atlantic denied writing any policies in New Jersey and initially refused to provide coverage to Hamilton.

Hamilton asserted that if he were uninsured, it was through no fault of his own. As a result, Hamilton filed a third-party action against Atlantic seeking a declaratory judgment (DJ), that Atlantic owed him liability insurance coverage and a defense to plaintiff's complaint.

On December 17, 1999, plaintiff's then attorney, Jeffrey Beckerman, Esquire, received a letter from the attorney for the UCJFB, stating that personal injury protection (PIP) benefits were not available to plaintiff because Hamilton was operating an out-of-state vehicle. Therefore, the UCJFB would not pay plaintiff's medical costs. On January 10, 2000, Beckerman conveyed this information to plaintiff and advised him that without PIP benefits, his only hope for recovery was if Hamilton had liability insurance on the date of the accident. Plaintiff notified Beckerman and the UCJFB that Hamilton's car was in fact registered in New Jersey and therefore fell within this State's PIP statute. On January 14, 2000, Beckerman wrote another letter to plaintiff confirming that plaintiff was correct and that he was eligible for medical benefits from the UCJFB.

At the trial call on March 12, 2001, a settlement was apparently agreed upon between Beckerman, the attorney for the UCJFB, and the attorney for Atlantic. Plaintiff's bodily injury claim would be settled contingent upon the outcome of the DJ action. If Hamilton prevailed, Atlantic agreed to pay plaintiff the full $10,000 in coverage under the Atlantic policy and the claim against UCJFB would be dismissed. If Atlantic won the DJ action, UCJFB would settle the case for at least the $10,000 Atlantic would have paid.

Prior to the September 10, 2001 trial date for the DJ action, Atlantic settled with Hamilton, agreeing to provide him $10,000 in coverage, which it would pay to plaintiff. However, Atlantic would not pay any PIP benefits to plaintiff. Plaintiff refused to sign a release. As a result, on November 13, 2002, UCJFB and Hamilton filed a motion to enforce the settlement. On December 11, 2002, the motion judge signed an order enforcing litigant's rights pursuant to Rule 1:10-3. Plaintiff, thereafter, filed a motion to vacate the order enforcing litigant's rights, which was denied.

On appeal from the order denying plaintiff's motion to vacate settlement, in an unpublished per curiam opinion, we exercised our original jurisdiction under Rule 2:10-5 and invalidated the settlement and remanded for further proceedings. Tandom v. Hamilton, No. A-4013-03T3, (App. Div. February 5, 2005) (slip op at 7). We determined that it was the Legislature's intent for PIP benefits to be promptly paid through its enactment of N.J.S.A. 39:6A-4 and N.J.S.A. 39:6-86.1 and for UCJFB to pay PIP benefits without the uninsured injured party first having to pursue the insured liable party in the automobile accident. Id. at 7, 9-10.

We noted that under the purported settlement, the UCJFB committed itself to paying "at least $10,000," if in the DJ action Atlantic was held not to be responsible to provide coverage to Hamilton, Id. at 10. Because the UCJFB took the "extreme position" of not covering plaintiff's medical expenses, despite knowledge that Hamilton's car was registered in New Jersey, plaintiff was left without any source to pay approximately $17,000 in medical expenses, except for his share of the $10,000, after expenses and attorneys fees. Id. at 11. We, therefore, held the settlement was strikingly unfair and not susceptible to judicial approval, vacated the settlement, and remanded the matter to the trial court for further proceedings. Ibid.

After our remand, the trial court scheduled the trial of the matter for October 24, 2005. However, on October 17, 2005 counsel for Atlantic requested an adjournment of trial because Atlantic agreed to provide coverage for Hamilton and provide him a defense.

On November 4, 2005, a stipulation of dismissal was filed dismissing Hamilton's third-party complaint against Atlantic. John C. Lane, counsel for Atlantic was substituted as counsel for Hamilton. A preemptory trial date was scheduled for December 5, 2005. On December 5, 2005, prior to trial beginning, a settlement was spread upon the record before the judge. After determining that a settlement had been reached, the judge signed the order of disposition from which plaintiff now appeals.

The settlement reached was that Atlantic would pay plaintiff $15,000, the full coverage under Hamilton's liability policy with Atlantic, and Atlantic would pay full PIP coverage, i.e., Atlantic would pay plaintiff's medical providers the entire amount of any outstanding medical bills. At the conclusion of the extensive colloquy, consisting of sixty-six transcribed pages, between plaintiff and the court concerning the terms of the settlement and collateral matters, the court was satisfied that plaintiff had agreed to the settlement rather than going to trial.

Plaintiff presents the following arguments for our consideration:

POINT ONE:

ON THE ISSUE OF WHAT PROMPTED ME TO DEMAND ALL DEPOSITIONS OF MR. HAMILTON HELD IN FLORIDA AND NEW JERSEY. HOW JUDGE HONIGFELD, MR. BOBCHIN FOR ATLANTIC INDEMNITY/HAMILTON AND MR. PURCELL FOR UCJFB ARE RIGHT IN THEIR STATEMENTS IN COURT PROCEEDING ON DECEMBER 5, 2005?

POINT TWO:

ON THE ISSUES OF FRAUD BY MR. HAMILTON ON PURPOSE AND TRULY HAVING NO INSURANCE AND OTHER RELATED ISSUES INCLUDING CONSPIRACIES AMONG ATTORNEYS ETC. WHICH ARE CLOSELY RELATED WITH FRAUD/ENCOURAGEMENT OF FRAUD.

POINT THREE:

ON THE ISSUE OF RESIDENCE OF MR. HAMILTON IN THE YEAR 1997, WHEN HE SPOKE TO MELISSA, THE AGENT (MR. HAMILTON, WAS IN FACT, RESIDENT OF NEW JERSEY IN YEAR 1997).

POINT FOUR:

ON THE ISSUE OF VALIDITY OF INSURANCE, IF INSURANCE WAS TRULY PURCHASED. THIS INSURANCE IS NOT VALID. ATLANTIC INDEMNITY MUST BE PUNISHED AS PER APPROPRIATE LAW(S).

POINT FIVE:

ON THE ISSUES OF FAULT ON THE PART OF MR. HAMILTON IN THE ACCIDENT ON JUNE 1, 1998, AS EVIDENCED BY THE DEPOSITION OF MR. HAMILTON READ WITH OTHER DOCUMENTS AND EXPLANATIONS BELOW.

POINT SIX:

ON THE ISSUE OF EXTRANEOUS MATTERS CLOSELY RELATED TO THE CASE.

POINT SEVEN:

ON THE ISSUES OF HIDING AND DECEPTIVE TENDENCY AND CARELESS AND IRRESPONSIBLE ACTION OF MR. BOBCHIN FOR ATLANTIC INDEMNITY/HAMILTON WHICH ENCOURAGE PERSONS LIKE MR. HAMILTON TO DO FRAUD AND INVOLVEMENT OF MR. BOBCHIN FOR ATLANTIC INDEMNITY IN CONSPIRACIES. MR. BOBCHIN DID NOT PREPARE THE CASE BY STUDYING THOROUGHLY BUT SIMPLY INTENDED TO EITHER SETTLE BY HOOK OR CROOK OR TO SIGN ON STIPULATION OF DISMISSAL WITHOUT JUSTIFIED REASONS. MR. BOBCHIN DID NOT CONSIDER PROPER TO ANSWER HOW AND WHY AND WHAT BASIS THEY PROVIDED COVERAGE TO MR. HAMILTON. MR. BOBCHIN HAS/HAD NO MORAL, NO FIRM STAND. MR. BOBCHIN DESTROYED THE SINCERE EFFORTS OF MR. O'CONNOR WHO HAD SHOWN IN DEPOSITION HOW MR. HAMILTON WAS WRONG.

POINT EIGHT:

ON THE ISSUES OF SETTLEMENT ON DATE OF TRIAL DEC. 5, 2005. ALL EARLIER ISSUES TO BE INCLUDED IN THIS ISSUE.

Plaintiff contends that he did not voluntarily agree to the settlement on December 5, 2005. Plaintiff claims he was coerced into accepting the settlement and was not given an opportunity to try his case. Our review of the record does not support plaintiff's contention. Rather, the record reflects plaintiff was given the choice to settle or try the case and made the election to settle.

"[S]ettlement of litigation ranks high in our public policy." Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.) certif. denied, 35 N.J. 61 (1961). "The point of this policy is . . . the notion that the parties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone. In recognition of this principle, courts will strain to give effect to the terms of a settlement wherever possible." Dep't. of Pub. Advocate v. N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 528, (App. Div. 1985).

A settlement agreement between parties to a lawsuit "is a contract like any other contract." Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005). A settlement "may be freely entered into and . . . a court, absent a demonstration of 'fraud or other compelling circumstances,' should honor and enforce [it] as it does other contracts." Pascarella v. Bruck 190 N.J. Super. 118, 124-25 (App. Div.) certif. denied, 94 N.J. 600 (1983) (quoting Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974)). In order for fraud to be the basis for vacating the settlement, plaintiff must prove a material misrepresentation, and the settlement must be predicated on that misrepresentation to plaintiff's detriment. See Jewish Center of Sussex County v. Whale, 86 N.J. 619, 624-25 (1981). Plaintiff has not shown such a misrepresentation.

We are satisfied, after our review of the record, that after substantial colloquy between plaintiff and the court as to the settlement terms that plaintiff acquiesced in accepting the full limits of coverage available rather than go to trial. In so doing, we are satisfied plaintiff accepted the settlement offer.

Plaintiff's remaining arguments are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(E), or are not properly before this court because the issues were not previously presented to the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

 
Affirmed.

The UCJFB is now known as the New Jersey Property and Liability Guarantee Association (NJPLIGA). See P.L. 2000, c. 89, enacted June 9, 2003.

Atlantic's counsel explained that Hamilton's policy was in the amount of $10,000 but the requirements of the deemer statute required Atlantic to increase its liability limits to $15,000 and required Atlantic to pay the no-fault PIP medical benefits that were never paid. See N.J.S.A. 17:28-1.4; N.J.S.A. 39:6A-3; N.J.S.A. 39:6A-4; N.J.S.A. 39:6B-1; Whitaker v. DeVilla, 147 N.J. 341, 355-56 (1997).

NJPLIGA correctly asserted that when Atlantic agreed by way of settlement to extend to plaintiff its full coverage, plaintiff had a source of recovery for all of his claims. Thereafter, plaintiff could not continue to maintain an action against NJPLIGA.

Atlantic argues that plaintiff's appeal should be dismissed because plaintiff did not first move pursuant to Rule 4:50-1 to vacate the settlement. See All Modes Transport., Inc. v. Hecksteden, 389 N.J. Super. 462, 464 (App. Div. 2006); Peskin v. Peskin, 271 N.J. Super. 261, 272 (App. Div.), certif. denied, 137 N.J. 165 (1994). Notwithstanding Atlantic's contention, we have elected to decide plaintiff's appeal on its merits.

(continued)

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A-2340-05T5

July 3, 2007