CONCETTA MAIURI and THE ESTATE OF DOMENICO MAIURI v. CAPITOL CITY CONTRACTING INC a/k/a CAPITAL CITY TOWING CARLTON SEIGLE, GAIL S WILLIAMS TRACEY SYPHAX, JOEL HARRIS FRANK and ED SAN PAOLO ITALIAN PEOPLE'S BAKERY, NEW COLONIAL BAKERY, MEYER PRODUCTS I

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4140-09T1

CONCETTA MAIURI and THE ESTATE

OF DOMENICO MAIURI,

Plaintiffs-Respondents,

v.

CAPITOL CITY CONTRACTING INC.

a/k/a CAPITAL CITY TOWING,

CARLTON SEIGLE, GAIL S. WILLIAMS,

TRACEY SYPHAX, JOEL HARRIS,

FRANK and ED SAN PAOLO, ITALIAN

PEOPLE'S BAKERY, NEW COLONIAL

BAKERY, MEYER PRODUCTS

INCORPORATED, and CITY OF TRENTON,

Defendants.

_______________________________________

CARLTON SEIGLE and GAIL

WILLIAMS,

Plaintiffs-Respondents,

v.

NATIONAL CONTINENTAL INSURANCE COMPANY,

Defendant,

and

THE PROFORMANCE INSURANCE COMPANY,

Defendant-Appellant.

_______________________________________

NATIONAL CONTINENTAL INSURANCE COMPANY,

Third-Party Plaintiff,

v.

CAPITOL CITY CONTRACTING, INC.

and TRACEY SYPHAX,

Third-Party Defendants.

_________________________________________________

March 31, 2011

 

Argued March 16, 2011 - Decided

 

Before Judges Fisher and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-180-07.

 

Aldo J. Russo argued the cause for appellant (Russo & Della Badia, LLC, attorneys; Mr. Russo, on the brief).

 

Phillip F. Drinkwater, III, argued the cause for respondents Concetta Maiuri and The Estate of Domenico Maiuri.

 

Respondents Carlton Seigle and Gail Williams have not filed a brief.

 

PER CURIAM

After close examination of the record, we conclude that finality was not achieved in these consolidated cases, and therefore, Proformance Insurance Company's appeal from an order denying its motion for summary judgment must be dismissed. In explaining our ruling, we first summarize the pleadings.

The record on appeal reveals that on January 22, 2007, plaintiffs Concetta Maiuri and the Estate of Domenico Maiuri commenced this action against Capitol City Contracting, Inc. (Capitol City) and others, alleging that, on the morning of January 23, 2005, Domenico was struck and killed by a pick-up truck that was plowing snow. The complaint alleged that the vehicle was operated by defendant Carlton Seigle during the course of his employment with Capitol City, and the vehicle Seigle was operating was owned by his sister, defendant Gail Williams.

At the time of the accident, Proformance provided coverage by way of two separate insurance policies: one which insured Williams and the other which insured the parents of Seigle and Williams. Proformance agreed to defend and indemnify Seigle and Williams pursuant to both policies but claimed the right to reduce the amount of coverage from $100,000/$300,000 to the statutory minimum of $15,000/$30,000 because the accident occurred while Seigle was engaged in a business pursuit.1

At the time of the accident, Capitol City was insured by National Continental Insurance Company (NCIC).2 In May 2008, Seigle and Williams commenced a separate action, seeking a defense and indemnification from NCIC and Proformance in the suit filed by Maiuri.

Maiuri's action was consolidated with Seigle and Williams's insurance coverage action. In March 2009, Proformance moved for summary judgment, seeking dismissal of the claims asserted against it by Seigle and Williams (the insureds). On April 17, 2009, the trial judge heard argument on Proformance's motion, as well as NCIC's summary judgment motion.

In opposing Proformance's motion during oral argument, the insureds' counsel claimed he was "surpris[ed]" by the fact that Proformance had finally included in its reply papers -- "after years of requesting" it -- a complete copy of the policy, which included a provision that the insureds believed negated the exclusion upon which Proformance relied.3 In responding, counsel for Proformance confessed he also had not previously seen the provision that had suddenly become the focus of attention. The judge, who was also caught by surprise, nevertheless suggested that the insureds' interpretation of this provision seemed "pretty clear" but invited Proformance's counsel to suggest a plausible alternative. Proformance's counsel responded, "I have not -- I'll be honest, Judge, I'm reading as you are [for] the first time. I didn't see this in his [opposi]tion." This prompted the following colloquy:

THE COURT: I don't think anybody really addressed this anywhere before today, am I right about that?

 

[PROFORMANCE'S COUNSEL]: That's my next point, Judge.

 

THE COURT: Nobody addressed it before today, because the --

 

[PROFORMANCE'S COUNSEL]: Counsel brings it up today and I'm reading it the first time as I believe you are.

 

THE COURT: -- well, he brings it up today because he didn't have the policy until you sent [your reply papers], which was March 30th.

 

[PROFORMANCE'S COUNSEL]: Correct. And that was a mistake by our law clerk, Judge. And that should have been sent.

 

THE COURT: So he doesn't really have another chance to respond after you send your reply in.

 

[PROFORMANCE'S COUNSEL]: Yes, that was a mistake on our office's part.

 

THE COURT: So it's not really a fair criticism to say [insureds' counsel] waited until today. He didn't really have a chance before today to raise it.

 

The judge then provided a very short explanation for why he thought the provision was "poorly written" and expressed his agreement with the insureds' proposed interpretation with these brief comments:

And that leads me to believe that [counsel for the insureds] [is] right. That the recognition is that you could use a pickup or a van for some type of business pursuit. All right. I'm not going to go into a long drawn out decision on it, because I didn't really have notice that this was going to be argued before today. But I think [the insureds are] absolutely correct that the only reading of that language is, as [counsel] says, it reads out of the policy, [the] particular exclusion [upon which Proformance relied]. So I'm going to deny . . . Proformance's motion for summary judgment.

 

After the judge heard argument and rendered an oral decision granting NCIC's motion, Proformance's counsel sought further elaboration from the judge, expressing uncertainty as to whether Proformance was now obligated to indemnify to the policy limits as opposed to the statutory minimum. He also appeared to suggest that the judge's interpretation might require a different result for Williams as opposed to Seigle -- because the exception from the exclusion was for "[a] pickup or van that you own" and Seigle did not own the vehicle:

[PROFORMANCE'S COUNSEL]: My only question regarding, because there's two policies and the amounts of the policies and the exclusion indicates the pickup or van that you own including Mr. Seigle didn't own the vehicles. My question is, is the denial based upon the fact that both policies will remain at 100/300 as to Williams and to Seigle? Because clearly it could apply to Williams, I agree with Your Honor, with the [c]ourt. But I just read it this morning as well as you did --

 

THE COURT: All right, why don't you -- this is all something that came up today.

 

[PROFORMANCE'S COUNSEL]: Yes, correct.

 

THE COURT: Make a motion for reconsider-ation.

 

[PROFORMANCE'S COUNSEL]: Okay, I will do that.

 

THE COURT: That might be the best way to do it. That way everybody will have a chance to . . . elaborate on it.

 

An order denying Proformance's motion for summary judgment was entered on April 17, 2009. The record on appeal does not include it, but we will assume an order granting NCIC's summary judgment motion was also entered.

Proformance did not immediately appeal. Indeed, there is no question that other issues as to other parties remained unresolved in the consolidated actions; for example, Maiuri's claims against the many named defendants she had sued had not been adjudicated. Proformance also did not move for leave to appeal. Instead, on May 13, 2010, more than a year later, Proformance filed a notice of appeal, seeking review of the April 17, 2009 order that denied its motion for summary judgment. In its notice of appeal, Proformance asserted that all issues as to all parties had been resolved. And, in support of that assertion, Proformance's counsel filed a case information statement, which represented that, on or about April 16, 2010, all other claims and issues had been resolved because he had received a copy of a consent judgment entered into by Maiuri and Seigle wherein the latter agreed to "a judgment against him in the amount of $200,000 without interest, costs or fees." In support, Proformance provided a copy of a consent judgment in favor of Maiuri and against Seigle in the amount of $200,000, which was consented to by Maiuri and Seigle's attorneys but not entered by the trial court, as well as a copy of a release purportedly executed by Maiuri in favor of Capitol City.4 Considering the plethora of claims asserted in these consolidated cases, what is contained in the record on appeal does not convince us that all issues as to all parties were resolved in the trial court.

In any event, we need not attempt to wrest from the rather sparse record an understanding about whether all other claims have been finally resolved because it is abundantly clear that the claims asserted by and between the insureds and Proformance have not been finally determined. As we have already demonstrated, after briefly explaining why his interpretation of the policy required a rejection of Proformance's interpretation, the trial judge did not enter judgment in favor of the insureds and against Proformance. He only denied Proformance's summary judgment motion, leaving the action's status unchanged and the claims between Proformance and its insureds unresolved. As we have said, the denial of summary judgment "decides nothing and merely reserves issues for future disposition." Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 356 (App. Div. 2004), aff d, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006); see also Franklin Med. Assocs. v. Newark Pub. Schools, 362 N.J. Super. 494, 512 (App. Div. 2003); Blunt v. Klapproth, 309 N.J. Super. 493, 504 (App. Div.), certif. denied, 156 N.J. 387 (1998); A & P Sheet Metal Co. v. Edward Hansen, Inc., 140 N.J. Super. 566, 573 (Law Div. 1976).

Proformance recognizes there is no order that affirmatively declares its obligations to defend and indemnify but claims the denial of its motion was the functional equivalent of a grant of summary judgment in favor of the insureds. We decline to participate in such speculation. The question before the trial judge was whether Proformance was entitled to summary judgment; in denying the motion, the judge briefly espoused a policy interpretation inconsistent with Proformance's view. Whether he would have granted summary judgment to the insureds is not the same thing, nor was that possibility a foregone conclusion; establishing an entitlement to summary judgment is far more onerous than establishing that summary judgment should be denied or postponed.

Moreover, it is abundantly clear from the transcript excerpts quoted earlier that the judge seems not to have intended to finally dispose of the parties' disputes. In withholding summary judgment, the judge said he did not need to provide "a long drawn out decision," and in light of the last-minute fashion in which the key issue had been presented, the judge was certainly entitled to anticipate future proceedings that would allow him an opportunity to revisit the question -- a power he retained until entry of a final judgment5 -- and provide the more extensive decision he justifiably deemed unnecessary in denying the motion.

For these reasons, we find that Proformance's appeal was precipitous. A denial of a party's summary judgment motion is not the equivalent of a grant of summary judgment to that party's opponent. Such a determination bespeaks an expectation of further proceedings and, ultimately, a final disposition of those claims -- assuming, also, that all other issues as to all other parties have been resolved -- before finality is achieved in the trial court; only then may an aggrieved party file a notice of appeal.6

Appeal dismissed.

1Proformance relied on a provision, found under a section entitled "Things We Do Not Cover," which declared Proformance did not provide coverage for "[l]iability for personal injury, bodily injury, or property damage arising out of business pursuits of you or any covered person." Invoking Proformance Ins. Co. v. Jones, 185 N.J. 406, 421 (2005), Proformance did not disclaim altogether but sought to limit its liability to the statutorily-required minimum level of coverage.

2It is not clear whether NCIC had issued a general liability policy or a commercial automobile liability policy. That uncertainty has no bearing on our disposition of this appeal.

3This newly-discovered provision reiterated that coverage was not provided for "[a]nyone while maintaining or using any vehicle while that person is employed or otherwise engaged in any business," but then excepted from this exclusion "the maintenance or use of . . . [a] pickup or van that you own."

4This release expressly "contemplate[s] that an appellate court will make the determination of whether [NCIC] is legally bound to indemnify Capitol City . . ." and that if held liable, NCIC would then pay Maiuri $200,000 and, if not, it would pay $5,000. Nothing in the record on appeal suggested that the anticipated appeal was pending, and Proformance's case information statement affirmatively represented there are no other pending appeals. A search of our docket, however, reveals that both Maiuri and Capitol City have filed appeals now pending in this court.

5The judge's broad power to consider again his prior interlocutory decision -- sought either by a party or by the judge -- is well-established. See R. 4:42-2 (declaring that an interlocutory order is "subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice"); Gonzalez, supra, 371 N.J. Super. at 356 (recognizing that judges are not "obligate[d] to slavishly follow an erroneous or uncertain interlocutory ruling"); Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 264 (App. Div. 1987) (holding that the power to revisit an interlocutory order prior to the entry of final judgment is "endowed with an unmistakable substantive content by the common understanding which underlies our jurisprudence of what is fair, right and just in the circumstances"), certif. denied, 110 N.J. 196 (1988).

6In the past, we have -- when appropriate -- granted leave to appeal out of time when a notice of appeal mistakenly seeks review of an interlocutory order. See, e.g., Caggiano v. Fontoura, 354 N.J. Super. 111, 125 (App. Div. 2002). More recently, the size of our docket and the need to deter lack of adherence to our rules has suggested the need to narrow the availability of such extraordinary relief. Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006); see also Grow Co. v. Chokshi, 403 N.J. Super. 443, 458-60 (App. Div. 2008). Such is the case here. Counsel has disserved this court -- and those litigants vying for our attention to their properly-commenced appeals -- by filing this premature appeal. We see no equitable basis for overlooking Proformance's departure from the requirement of Rule 2:2-3(a)(1) that, with exceptions, permits appeals as of right only from final judgments except to the extent an application is timely filed seeking interlocutory review.