LAWRENCE ROSSI AND FRANCES ROSSI, husband et al. v. JAMES FRENCH, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5552-05T55552-05T5

LAWRENCE ROSSI AND FRANCES

ROSSI, husband and wife,

Plaintiffs,

v.

JAMES FRENCH, an infant by his

Guardian ad Litem JOANNE FRENCH

AND PETER COLEMAN,

Defendants-Respondents,

and

KEANSBURG BOARD OF EDUCATION,

KEANSBURG HIGH SCHOOL AND RAYMOND

COLEMAN,

Defendants-Appellants.

________________________________________________________________

 

Argued May 1, 2007 - Decided May 18, 2007

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-5481-01.

Stacy L. Moore, Jr., argued the cause for appellants (Parker McCay, attorneys; Brad A. Parker, of counsel; Mr. Moore, on the brief).

John C. Prindiville argued the cause for respondent Peter Coleman (Barry & Prindiville, attorneys; Mr. Prindiville, on the brief).

Respondent, James French, an infant by his Guardian ad Litem Joanne French, did not file a brief.

PER CURIAM

This is an appeal by the Keansburg Board of Education, Keansburg High School and Raymond Coleman from an order awarding counsel fees and costs for the defense of another party in this litigation, Peter Coleman. The award was purportedly made pursuant to provisions in an insurance policy issued by the Board of Education's insurer, and presumably it was intended that the award would be paid by that insurer. However, the insurer was not a party to the action. Accordingly, the court lacked authority to enter the order and we reverse.

The litigation resulted from personal injuries suffered by Lawrence Rossi. While riding a bicycle, Rossi collided with a cross-country runner, James French, a student at Keansburg High School. French was a member of the Keansburg High School cross-country team, which was engaged in a practice session when the collision occurred. Raymond Coleman was the cross-country coach. Raymond Coleman's brother, Peter Coleman, sometimes ran with the team with the knowledge and permission of Raymond Coleman. Peter Coleman was running with the team at the time of the accident.

Rossi, along with his wife who asserted a per quod claim, brought this action against French, the Keansburg Board of Education, Keansburg High School, Raymond Coleman and Peter Coleman. He alleged that Peter Coleman "was negligent in his instruction, training, supervision and control of the defendant, JAMES FRENCH."

The Board of Education was insured by the New Jersey School Boards Association Insurance Group (Association Insurance Group), a public entity joint insurance fund. The policy designated, "at the option of the Board of Education," as additional insureds for bodily injury claims "Volunteers while acting on behalf of or at the direction of the Board of Education." Peter Coleman was insured under a homeowners insurance policy issued by Allstate Insurance Company, which provided him with liability coverage for claims such as that brought by Rossi.

The Association Insurance Group assigned counsel to represent the Board of Education, Keansburg High School and Raymond Coleman. Allstate representatives corresponded with the Association Insurance Group and demanded that it defend and, if necessary, indemnify Peter Coleman. By letter of June 22, 2004, counsel for the Association Insurance Group wrote to Allstate, advising that it "denies your demand that it assume the defense of Peter Coleman." The attorney who had been assigned by Allstate to represent Peter Coleman in this litigation, that began in 2003, continued to represent Peter Coleman through the conclusion of the case.

The case came on for trial in January 2006. After the first day of trial, plaintiff voluntarily dismissed his claim against Peter Coleman and settled with the Board of Education, Keansburg High School and Raymond Coleman. The case was tried to a conclusion against French, resulting in a verdict of no cause for action against him.

On February 1, 2006, Allstate's assigned counsel for Peter Coleman filed a motion "to compel reimbursement of fees and costs." The motion did not specify the entity against which the relief was sought, but it is obvious from the supporting papers that the basis for the claim was the contention that Peter Coleman was a "volunteer" acting on behalf of or at the direction of the Board of Education, and thus covered by the Association Insurance Group's policy. The arguments before the trial court centered on whether Peter Coleman's activities qualified him as a "volunteer," a term undefined in the Association Insurance Group's policy. Without oral argument and with no supporting statement of reasons, the judge entered an order on March 3, 2006 granting the motion. The order provided that Peter Coleman "be and is hereby entitled to the reimbursement of fees and costs in the total amount of $16,490." The order, like the motion, did not specify the entity that was obligated to pay the award.

Counsel for the Board of Education, Keansburg High School, and Raymond Coleman moved for reconsideration. Counsel pointed out that the Association Insurance Group was never named as a party in the case, that the decision to deny defense and indemnification to Peter Coleman was not a decision of the parties represented by counsel in the case, but a decision of the insurer, which was unrepresented in the case. The judge rejected the argument. In an oral decision, the judge expressed his finding that the evidence was sufficient to establish that Peter Coleman qualified as a volunteer and that "his representation should have been picked up by the [Association Insurance Group] pursuant to the volunteer provision of the policy." The judge noted that Peter Coleman had requested representation by the Association Insurance Group, which "denied it at their peril." The judge therefore declined to vacate the order awarding counsel fees and costs.

On appeal, Allstate's assigned counsel for Peter Coleman argues that the Association Insurance Group was on notice of the demand for representation all along and was aware that the issue would be resolved in some way at the conclusion of the litigation. Counsel argues in his appellate brief: "New Jersey is a general notice state and there is no doubt from the correspondence exchanged between representatives of Peter Coleman and the Board of Education that indemnification was being sought."

This argument mixes the concepts of notice of a potential claim against a party and the sufficiency in a pleading of a claim against a party. The latter concept, commonly referred to as "notice pleading," requires only that sufficient facts be alleged in a pleading to show that the pleader is entitled to relief, see R. 4:5-2, and provides that the pleading will be liberally viewed to determine if it fairly apprises the adverse party of the claims and issues raised. See Spring Motors Distrib., Inc. v. Ford Motor Co., 191 N.J. Super. 22, 29-30 (App. Div. 1983), aff'd in part, and rev'd in part on other grounds, 98 N.J. 555 (1985). The former concept, placing a non-party on notice of a claim that might potentially be brought in litigation if that party does not accede to the demand made, does not confer jurisdiction on a court to render a judgment or order against that party.

Fundamental concepts of due process require that no judgment shall be entered against a party without notice and an opportunity to be heard. Juzek v. Hackensack Water Co., 48 N.J. 302, 314 (1966). In the context presented here, an entity that is not a party to the litigation cannot have a judgment entered against it. See Parks v. Colonial Penn Ins. Co., 98 N.J. 42, 47-48 (1984) (prohibiting an attempt to bind a non-party to the result in a civil action); Rutgers Cas. Ins. Co. v. Dickerson, 215 N.J. Super. 116, 120-21 (App. Div. 1987) (prohibiting an attempt to bind a non-party to an arbitration award).

The Association Insurance Group is a separate and distinct entity from its insured, the Board of Education. It never had its day in court to litigate whether Peter Coleman was designated "at the option" of its insured to serve as a "volunteer" and whether he fell within the scope of the coverage provided in the policy. Further, neither the trial court nor we have seen the Allstate policy. Even if the Association Insurance Group policy provided coverage for Peter Coleman, there would remain an issue as to which policy was primary or whether they were co-primary, and what consequences would flow from those determinations. The Association Insurance Group could have been joined as a third-party defendant in the underlying litigation, see R. 4:8-1(a), or named as a defendant in a separate declaratory judgment action, see N.J.S.A. 2A:16-53. Either procedure would have provided a forum for the two insurance carriers to resolve disputed coverage issues.

Because of our disposition of the appeal on the basis we have set forth, we need not address appellants' remaining arguments, pertaining to the substantive issue of whether Peter Coleman was a "volunteer," the anti-subrogation provision of the Tort Claims Act, and the amount of the award and sufficiency of the judge's findings with respect to the amount.

 
Reversed.

(continued)

(continued)

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A-5552-05T5

May 18, 2007