LADEN STRICKLAND v. CENTRAL MECHANICAL & CONSTRUCTION INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

LADEN STRICKLAND and LORENZO

STRICKLAND, h/w,

Plaintiffs,

v.

CENTRAL MECHANICAL & CONSTRUCTION,

INC.,

Defendant/Third-Party

Defendant-Respondent,

and

EXECUTIVE CAMPUS, LLC,

Defendant/Third-Party

Plaintiff-Appellant.

_______________________________________

January 17, 2014

Argued January 8, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0253-11.

Joseph H. Neiman argued the cause for appellant.

Jeffrey A. van der Kwast argued the cause for respondent (Fallon Van Horn, LLC, attorneys; Mr. van der Kwast, on the brief).

PER CURIAM

Defendant Executive Campus, LLC, appeals the Law Division's March 8, 2013 order denying its motion to reinstate its crossclaim against defendant Central Mechanical & Construction, Inc. We affirm.

We discern the following facts and procedural history from the record on appeal. Central Mechanical and Executive Campus were defendants in a personal injury action brought by plaintiff Laden Strickland and her husband, in which she alleged that she was injured as the result of a fall on premises owned by Executive Campus and maintained by Central Mechanical.

Because of Strickland's late identification of the property owner and delays in service of the second amended complaint, Executive Campus's answer, which included a cross-claim against Central Mechanical for contribution and indemnification under the Joint Tortfeasors Act (Act),1 was initially rejected by the clerk's office because the case had been dismissed as to it for lack of prosecution. Once the claim had been restored, Executive Campus's answer was filed on September 7, 2012.

At that time, the case had already been scheduled for arbitration on September 19. Strickland's attorney gave notice of the arbitration date to the attorney for Executive Campus, who had not received notice from the court. The attorney requested an adjournment of the arbitration, which was not granted. He nevertheless declined to participate in the arbitration hearing.

The arbitrator determined (1) that Central Mechanical was seventy-five percent responsible for Strickland's injury, (2) that Strickland was twenty-five percent responsible, and (3) that Executive Campus had no liability. The net award to Strickland was $63,750. The arbitration award was apparently not served on Executive Campus by the court or any other party.

In an October 4 letter confirming prior discussions, Central Mechanical offered to settle for $55,000, subject to a waiver of the cross-claim by Executive Campus. The attorney for Executive Campus was copied on the letter, to which he did not respond. Central Mechanical subsequently agreed to pay the full amount of the arbitration award. In an October 29 letter, its attorney notified the court and counsel for Executive Campus that the case had been settled. By letter dated November 6, the attorney for Executive Campus wrote to the court, stating that, although Strickland and Central Mechanical had settled their differences, Executive Campus's cross-claim remained open.

On February 12, 2013, Executive Campus filed a motion to restore its cross-claim. The motion was opposed by Central Mechanical. After oral argument on March 8, the motion judge denied the relief sought by Executive Campus. The judge determined that, having received notice of the arbitration hearing from the attorney for Central Mechanical, Executive Campus had "no right to presume the arbitration did not go forward and a result did not occur, or at least make reasonable inquiries [as] to what that result was." He held that the cross-claim had been extinguished by the arbitration award and Executive Campus's failure to file for a trial de novo. This appeal followed.

Having reviewed the issues raised on appeal, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm essentially for the reasons stated by Judge Lee A. Solomon is his March 8, 2013 oral decision, adding only the following.

It is clear from the record that, although it did not receive official notice from the court, Executive Campus was aware of the scheduled arbitration hearing and failed to attend after its application for an adjournment was not granted. As Judge Solomon correctly observed, Executive Campus was not, under those circumstances, free simply to ignore the arbitration without making further inquiry as to the results. It did so at its peril.

In addition, the arbitrator found that Executive Campus was not at fault in any way. The import of that determination was that Executive Campus was not a tortfeasor and, of necessity, not a joint tortfeasor entitled to contribution or indemnification under the Act, which was the sole basis of its cross-claim as pled. Once Strickland's claim was resolved through payment of the arbitration award, there were no viable claims remaining to be resolved.

Executive Campus belatedly claims, after its cross-claim's lack of merit was pointed out by Central Mechanical in its respondent's brief, that it could have pled a contractual claim for attorneys' fees. We find no reason to require the Law Division to reopen the matter to allow Executive Campus to seek to amend its cross-claim under the circumstances of this case.

Affirmed.

1 N.J.S.A. 2A:53A-1 to -4.