ROSANNA GOMEZ v. LIBERTY MUTUAL FIRE INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4231-16T3
ROSANNA GOMEZ,

          Plaintiff-Respondent,

v.

LIBERTY MUTUAL FIRE
INSURANCE COMPANY,

     Defendant-Appellant.
___________________________

                    Submitted March 14, 2018 – Decided December 7, 2018

                    Before Judges Fuentes and Koblitz.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Docket No. DC-008662-16.

                    Law Offices of Viscomi & Lyons, attorney for
                    appellant (Emily S. Barnett, on the brief).

                    Bramnick, Rodriguez, Grabas, Arnold & Mangan,
                    attorneys for respondent (Brian J. Trembley, on the
                    brief).

          The opinion of the court was delivered by

FUENTES, P.J.A.D.
      Defendant Liberty Mutual Fire Insurance Company (Liberty) appeals

from an order of the Special Civil Part denying its motion to vacate a default

judgment entered against it, in favor of plaintiff Rosanna Gomez, in the amount

of $16,641.79. Liberty argues the court erred in denying its motion to vacate

the judgment pursuant to Rule 4:50-1(a), because it established excusable

neglect for its failure to file a timely responsive pleading and has a meritorious

defense to the underlying action. Plaintiff argues the court properly exercised

its discretionary authority to deny Liberty's motion. We reverse. The record

developed before the Special Civil Part shows the motion judge did not apply

the correct legal standard in his decision to deny Liberty's motion to vacate the

default judgment.

      This case arises from a motor vehicle accident. On June 6, 2012, a Queen

City Yellow Taxi driven by Jacinjo Morela collided with the car directly in front

of it, causing a chain-reaction that ultimately involved three other vehicles.

Plaintiff Rosanna Gomez was a passenger in one of the three vehicles involved

in the accident. The car she was in was driven by Jorge Vilacis and owned by

Bertha Garces.

      On September 19, 2013, plaintiff filed a personal injury suit against all of

the tortfeasors involved in the accident. She alleged the accident injured her


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neck, back, and shoulders. Liberty insured Garces's car. Pinelands Insurance

Company insured Jacinjo Morela. Plaintiff's counsel did not serve Liberty with

a copy of the complaint at the commencement of the action.

      At a settlement conference held on June 8, 2015, plaintiff reached an

agreement with the tortfeasors to settle the case for $22,500. On August 25,

2015, Pinelands Insurance Company went into liquidation and did not pay the

$22,500 settlement. The Liberty insurance policy that covered plaintiff's host

vehicle provided $15,000 of uninsured motorist (UM) benefits. On September

19, 2016, plaintiff filed a complaint against Liberty in the Special Civil Part

seeking UM benefits under Garce's Liberty policy. The following day, Liberty

received a copy of plaintiff's summons and complaint without a court-assigned

docket number.

      Court records show the Special Civil Part Manager attempted to serve

Liberty with the summons and complaint on two separate occasions.            The

process documents were returned marked "unserved" on October 17, 2016. The

Case Manager mailed the summons and complaint to Liberty on November 19,

2016. Court records show the Case Manager received proof of service from the

United States Postal Service on December 9, 2016. Pursuant to Rule 6:3-1, a

defendant has thirty-five days to file a responsive pleading. Court records show,


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however, that the Special Civil Part Manager entered default against Liberty on

December 30, 2016, only twenty-one days after service by mail.

      In a transmittal letter dated January 17, 2017 addressed to the Special Civil

Part motions clerk, the firm retained by Liberty moved to vacate the entry of

default and extend the time to file an answer. Defense counsel simultaneously

served plaintiff with interrogatories, demand for production of documents,

including a release for medical records, notice of deposition, and a demand for

plaintiff to submit to an independent medical examination. These documents

were date stamped received by the court on January 18, 2017. However, Special

Civil Part records show they were not uploaded to the court's database until

February 15, 2017. Plaintiff filed opposition to the motion to vacate. Liberty

claims the court mistakenly separated the motion papers and returned the answer

as untimely. This required counsel to refile the original motion to vacate default

on February 2, 2107.

      The matter came on for oral argument on February 27, 2017. Liberty's

counsel argued the clerical error made by the Special Civil Part Manager caused

the original motion to be viewed as untimely. Despite the indisputable evidence

supporting Liberty's position, the motion judge found Liberty did not submit a

proposed answer with the original motion to vacate.


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      It is well-established that "the opening of default judgments should be

viewed with great liberality, and every reasonable ground for indulgence is

tolerated to the end that a just result is reached." Hous. Auth. of Morristown v.

Little,  135 N.J. 274, 283-84 (1994) (quoting Marder v. Realty Constr. Co.,  84 N.J. Super. 313, 319, (App. Div. 1964)). Under Rule 4:50-1(a), a party seeking

to vacate a default judgment must show: (1) excusable neglect under the

circumstances; and (2) a meritorious defense, either refuting liability to the

cause of action itself or to the quantum of damages assessed. Franzblau Dratch,

PC v. Martin,  452 N.J. Super. 486, 491 (App. Div. 2017). A decision to grant

or deny a motion to vacate default is left to the sound discretion of the motion

judge. Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n,  132 N.J.
 330, 334 (1993). A judge abuses this discretionary authority when the judge

applies an incorrect legal standard or intentionally or mistakenly ignores the

material facts of a case. New Jersey Div. of Youth & Family Servs. v. M.G.,

 427 N.J. Super. 154, 171-72 (App. Div. 2012).

      Here, the motion judge incorrectly found Liberty filed an untimely motion

to vacate, unsupported by a responsive pleading, in violation of the requirements

of Rule 4:43-3. The record shows, however, that the Special Civil Part Manager

incorrectly declared Liberty in default on December 30, 2016, merely twenty-


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one days after it was served with process by mail. Pursuant to Rule 6:3-1, a

defendant in a Special Civil Part action has thirty-five days to file a responsive

pleading. This threshold clerical error is sufficient, as a matter of law, to

establish excusable neglect by Liberty.

      The Special Civil Part compounded this error when it misplaced Liberty's

original motion to vacate default filed on January 17, 2017. At this juncture of

the litigation, the applicable standard is codified in Rule 4:43-3, which only

requires a "mere showing of good cause . . . for setting aside an entry of default."

N.J. Mfrs. Ins. Co. v. Prestige Health Grp., LLC,  406 N.J. Super. 354, 360 (App.

Div. 2009). Specifically:

            A party's motion for the vacation of an entry of default
            shall be accompanied by (1) either an answer to the
            complaint and Case Information Statement or a
            dispositive motion pursuant to Rule 4:6-2, and (2) the
            filing fee for an answer or dispositive motion, which
            shall be returned if the motion to vacate the entry of
            default is denied. For good cause shown, the court may
            set aside an entry of default and, if a judgment by
            default has been entered, may likewise set it aside in
            accordance with Rule 4:50.

            [Rule 4:43-3 (emphasis added).]

      Here, a default judgment had not been entered at the time Liberty filed its

timely motion to vacate the default the Special Civil Part precipitously entered

fourteen days before it was due, in violation of Rule 6:3-1. The record also

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shows that notwithstanding the motion judge's unsupported factual findings,

defense counsel's January 17, 2017 motion to vacate default was in full

compliance with the requirements of Rule 4:43-3. In this light, we vacate the

default judgment entered against Liberty and remand this matter for such further

proceedings as may be warranted.

      Reversed and remanded. We do not retain jurisdiction.




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