KARIN KOVALICKY v. BRYAN MARSHALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5442-10T1

KARIN KOVALICKY,

Plaintiff-Appellant,

v.

BRYAN MARSHALL, KAY MARSHALL,

DENNIS SUGAR, Individually

and trading as SUGAR SWEET

LANDSCAPING, HANOVER

INSURANCE COMPANY and CITIZENS

INSURANCE COMPANY OF AMERICA,

Defendants-Respondents.

_____________________________________________

November 15, 2012

Submitted August 13, 2012 - Decided

Before Judges Sapp-Peterson and St. John.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3199-10.

Edward P. Azar, attorney for appellant.

Law Offices of Terkowitz & Hermesmann, attorneys for respondents Bryan Marshall, Kay Marshall, Hanover Insurance Company and Citizens Insurance Company of America (Andrew M. Horun, on the brief).

Respondent Dennis Sugar has not filed a brief.

PER CURIAM

Plaintiff Karin Kovalicky appeals from a March 21, 2011 order of the Law Division denying her request for defendants Bryan Marshall, Kay Marshall, Hanover Insurance and Citizens Insurance Company of America to pay plaintiff the portion of a November 18, 2009 binding arbitration award assessed against defendant Dennis Sugar, and further dismissing her complaint with prejudice. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

On April 30, 2006, plaintiff visited the Marshall defendants residence where she tumbled down a stairway. Plaintiff alleged that the condition of the stairway, constructed by defendant Sugar, was dangerous and represented an unreasonable risk of harm and hazardous condition. Plaintiff further alleged that the Marshall defendants were contributorily negligent to her injury and failed to exercise the proper duty of care.

The parties agreed to submit their matter to binding arbitration. The arbitrator determined the comparative negligence allocation to be such that plaintiff was 37.5% responsible and defendants were 62.5% responsible. Of this 62.5% responsibility, the arbitrator determined that the Marshall defendants were 62.5% (39.06% of total) responsible, while defendant Sugar was responsible for 37.5% (23.44% of total).

The arbitrator awarded plaintiff $106,667 in damages. The award was reduced in conformity with the allocation of contributory negligence to $66,667 due from defendants. The Marshall defendants were responsible for 62.5% of this award, $41,667, and defendant Sugar was responsible for 37.5%, $25,000. Plaintiff collected her award due from the Marshall defendants. A default was entered against defendant Sugar.

Plaintiff then instituted litigations in the Superior Court to compel the Marshall defendants to pay the remaining $25,000 owed by defendant Sugar pursuant to N.J.S.A. 2A:15-5.3. The trial court dismissed plaintiff's requested relief with prejudice. This appeal ensued.

II.

Plaintiff raises the following argument for our consideration on appeal:

THE DEFENDANTS, MARSHALL, IS RESPONSIBLE FOR PAYMENT OF THE AWARD LEVIED AGAINST DEFENDANT, SUGAR, PURSUANT TO THE JOINT AND SEVERAL TORTFEASOR ACT.

We note that "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

We turn next to the Joint and Several Liability Act, N.J.S.A. 2A:15-5.3, which provides that a party may recover "the full amount of damages from any party determined by the trier of fact to be 60% or more responsible for the total damages." (Emphasis added). When applying a statute, it is important to remember that "[o]ur overriding goal in interpreting a statute is to determine the Legislatures intent. James v. Bd. of Trustees of the Public Employees' Retirement Sys., 164 N.J. 396, 404 (2000). To divine that intent, we first look to the plain meaning of the words of the statute." Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102 (2004) (citing Nat'l Waste Recycling, Inc. v. Middlesex Cnty. Improvement Auth., 150 N.J. 209, 223 (1997).

Thus, "[a] plaintiff is entitled to recover the full amount of the damages from a defendant found to be sixty percent or more at fault. N.J.S.A. 2A:15-5.3a. A plaintiff, however, may recover only that percentage of damages directly attributed to a defendant found to be less than sixty percent at fault. N.J.S.A. 2A:15-5.3c." Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102 (2004).

Plaintiff's contention that the Marshall defendants are responsible for the full allocation assessed against all defendants is mistaken. Plaintiff maintains that N.J.S.A. 2A:15-5.3, as it refers to total damages, refers to total damages which the plaintiff is entitled to recover as molded by the contributory negligence assessed upon plaintiff, and since the Marshall defendants are 62.5% responsible for this award, plaintiff should be able to recover all her recoverable damages from them. This assertion is wrong. The plain meaning of N.J.S.A. 2A:15-5.3 is that a party may recover the entire amount of damages from any party determined to be sixty percent or more responsible for total damages, not damages which the plaintiff is entitled to recover as molded by the contributory negligence assessed upon plaintiff. Plaintiff's reliance upon Brodsky, supra, 181 N.J. 102, and Erny v. Estate of Merola, 171 N.J. 86 (2002), is misplaced. Brodsky makes clear that first the court determines the "percentage of fault attributed to each party, the trial court then 'mold[s] the judgment' and computes the amount of damages owed by each defendant." Supra, 181 N.J. at 109 (citing N.J.S.A. 2A:15-5.2d). In Erny, the principle issue was a choice of law question because New York's comparative negligence statute did not have a provision allowing plaintiff to recover the full amount from any tortfeasor. Supra, 171 N.J. 86.

Here, the Marshall defendants were only responsible for 39.06% of total damages. Therefore, pursuant to N.J.S.A. 2A:15-5.3, plaintiff cannot recover the total amount of her damages from the Marshall defendants.

While we agree with the legal conclusion reached by the trial court, it was unnecessary to reach the substance of plaintiff's claim because the parties agreed to submit their dispute to binding arbitration. Arbitration awards can only be vacated by a court in cases of fraud, corruption, or similar wrongdoing by the arbitrator. See N.J.S.A. 2A:24-8.1 A court may not vacate for the arbitrator's mistaken interpretation of the law. However, "in rare circumstances a court may vacate an arbitration award for public-policy reasons." Tretina Printing, Inc. v. Fitzpatrick & Assoc., Inc., 135 N.J. 349, 357-58 (1994). Arbitrators' factual determinations are generally not reviewable by a court. Ukrainian Nat'l. Urban Renewal Corp. v. Joseph L. Muscarelle, Inc., 151 N.J. Super. 386, 396 (App. Div.), certif. denied, 75 N.J. 529 (1977). Here, there was no allegation of fraud, corruption, or similar wrongdoing by the arbitrator, nor any public-policy issues and as such the merits of plaintiff's claim were addressed in the binding arbitration.

1 N.J.S.A. 2A:24-8 states:

The court shall vacate the award in any of the following cases:

a. Where the award was procured by corruption, fraud or undue means;
 
b. Where there was either evident partiality or corruption in the arbitrators, or any thereof;
 
c. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause being shown therefor, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party;
 
d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.