NEW JERSEY PHYSICIANS UNITED RECIPROCAL EXCHANGE VS. VASILIOS VIKATOS VASILIOS VIKATOS VS. HACKENSACK UNIVERSITY MEDICAL CENTER (L-0066-18, MERCER COUNTY, AND L-9345-14, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4272-17T2
A-4275-17T2
NEW JERSEY PHYSICIANS
UNITED RECIPROCAL EXCHANGE,
Plaintiff-Appellant,
v.
VASILIOS VIKATOS and
AERI KIM VIKATOS,
Defendants-Respondents.
VASILIOS VIKATOS and
AERI KIM VIKATOS,
Plaintiffs-Respondents,
v.
HACKENSACK UNIVERSITY
MEDICAL CENTER, AMY GORE, M.D.,
ATUHANI BURNETT, M.D., GARIMA
DOSI, M.D., GALE LEVY, M.D., and
JONATHAN JOSSE, M.D.,
Defendants,
and
PETER KAGAN, M.D. and
JOSEPH MANNO, M.D.,1
Defendants-Respondents.
NEW JERSEY PHYSICIANS
UNITED RECIPROCAL EXCHANGE,
Intervenor-Appellant.
Argued April 29, 2019 – Decided May 21, 2019
Before Judges Fasciale, Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0066-18 and
Bergen County, Docket No. L-9345-14.
Thomas Kane argued the cause for appellant (Epstein
Becker & Green, PC, attorneys; Anthony Argiropoulos,
of counsel and on the briefs; William Gibson, on the
briefs).
Paul A. O'Connor, III, argued the cause for respondents
Vasilios Vikatos and Aeri Kim Vikatos (O'Connor,
Parsons, Lane & Noble, LLC, attorneys; Paul A.
O'Connor, III, of counsel; Alexandra Loprete, on the
brief).
PER CURIAM
1
Improperly pled as Joseph Mano, M.D.
A-4272-17T2
2
In these consolidated actions, New Jersey Physicians United Reciprocal
Exchange (NJ PURE) appeals from Law Division orders entered in two
vicinages: (1) an April 10, 2018 order upholding a "high-low" agreement
between NJ PURE's insured and his patient in the underlying medical negligence
action filed in Bergen County (A-4275-17)2; and (2) an April 24, 2018 order
dismissing NJ PURE's declaratory judgment action filed in Mercer County,
seeking a determination that the agreement was not final (A-4272-17). For the
reasons that follow, we affirm both orders.
I.
We commence our review with a discussion of well-settled legal
principles to give context to the trial judges' decisions and the validity of the
high-low agreement at issue.
"Public policy favors the settlement of disputes." Willingboro Mall, Ltd.
v. 240/242 Franklin Ave., LLC, 215 N.J. 242, 253 (2013). Among its other
benefits, "[s]ettlement spares the parties the risk of an adverse outcome and the
time and expense—both monetary and emotional—of protracted litigation. . . .
[and] also preserves precious and overstretched judicial resources." Id. at 253-
2
NJ PURE was not named as a party in the medical negligence action; we
granted NJ PURE's motion to intervene in A-4275-17.
A-4272-17T2
3
54 (citation omitted). In furtherance of the strong policy of enforcing
settlements, "our courts strain to give effect to the terms of a settlement wherever
possible." Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008) (internal
quotation marks omitted).
Accordingly, an agreement to settle a lawsuit will be honored and
enforced in the absence of fraud or other compelling circumstances. Pascarella
v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div. 1983). "[T]he party seeking
to set aside the settlement agreement has the burden of proving . . . [an]
extraordinary circumstance sufficient to vitiate the agreement[,]" Jennings v.
Reed, 381 N.J. Super. 217, 227 (App. Div. 2005), by clear and convincing
evidence. Smith v. Fireworks by Girone, Inc., 380 N.J. Super. 273, 291 (App.
Div. 2005).
"A high-low agreement is a device used in negligence cases in which a
defendant agrees to pay plaintiff a minimum recovery in return for plaintiff's
agreement to accept a maximum sum regardless of the outcome of the trial."
Benz v. Pires, 269 N.J. Super. 574, 578 (App. Div. 1994); see also R. 4:24A
(defining a high-low agreement and setting forth the requirements of disclosure
A-4272-17T2
4
to the court and other parties). 3 The parties also agree to accept any outcome
between these limits. Benz, 269 N.J. Super. at 578-79. "A high-low agreement
protects a plaintiff from the danger of receiving less than the floor amount and
protects a defendant from exposure to a judgment higher than the agreed
ceiling." Id. at 579.
Nonetheless, a high-low agreement is a contract subject to traditional rules
of contract interpretation. Malick v. Seaview Lincoln Mercury, 398 N.J. Super.
182, 186 (App. Div. 2008); see also Shafer v. Cronk, 220 N.J. Super. 518, 521-
22 (Law Div. 1987) (high-low agreements are treated as settlements).
The "court's role is to consider what is written in the context of the
circumstances at the time of drafting and to apply a rational meaning in keeping
with the expressed general purpose." Sachau v. Sachau, 206 N.J. 1, 5-6 (2011)
(internal quotation marks omitted). "To the extent that there is any ambiguity
in the expression of the terms of a settlement agreement, a hearing may be
necessary to discern the intent of the parties at the time the agreement was
entered and to implement that intent." Quinn v. Quinn, 225 N.J. 34, 45 (2016)
(citing Pacifico v. Pacifico, 190 N.J. 258, 267 (2007)). Not every factual dispute
3
Rule 4:24A was adopted effective September 2018, after the trial judges
entered the orders at issue in these appeals.
A-4272-17T2
5
on a motion requires a plenary hearing; a plenary hearing is only necessary to
resolve a genuine issue of a material fact. See e.g., Eaton v. Grau, 368 N.J.
Super. 215, 222 (App. Div. 2004).
We review a trial court's decision to enforce a settlement for abuse of
discretion. Brundage, 195 N.J. at 613; Chattin v. Cape May Greene, Inc., 216
N.J. Super. 618, 626 (App. Div. 1987). However, our review of a trial court's
interpretation of an agreement is de novo. Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Cantone Research, Inc., 427 N.J. Super. 45, 57 (App. Div. 2012);
see also Kieffer v. Best Buy, 205 N.J. 213, 222 (2011) (recognizing the
interpretation of a contract is ordinarily a legal question for the court, which is
subject to de novo appellate review). The reviewing court must evaluate the
common intention of the parties and the purpose they tried to achieve. See
Tessmar v. Grosner, 23 N.J. 193, 201 (1957).
II.
Applying those legal standards here, we turn to the pertinent facts and
procedural history that form the focal point of these appeals.
In October 2014, Vasilios Vikatos filed a complaint in the Law Division
of Bergen County alleging medical negligence against Hackensack University
Medical Center (HUMC), Dr. Peter Kagan, Dr. Joseph Manno, and other
A-4272-17T2
6
physicians.4 As their malpractice carrier, NJ PURE provided a defense and
indemnification for Drs. Kagan and Manno.
Prior to trial, Judge Lisa Perez Friscia, in her assignment as the civil
settlement judge of the Bergen Vicinage, held four pretrial settlement
conferences with counsel between September 26, 2017 and the adjourned trial
date of December 4, 2017. Pertinent to these appeals, after jury selection had
commenced before another judge but prior to opening statements, Vikatos'
counsel received the following correspondence, signed by NJ PURE's claims
manager, on December 4, 2017 (emphasis added):
This will confirm that you've rejected NJ PURE's
previous HIGH-LOW settlement offer on behalf of Dr.
Kagan comprised of a HIGH (maximum) of $1,200,000
and a guaranteed LOW (minimum) of $350,000 and
conditional [sic] upon releasing Dr. Manno from this
lawsuit. At this time, NJ PURE hereby extends an
unconditional HIGH-LOW settlement offer on behalf
of Dr. Kagan, comprised of a HIGH (maximum) of
$1,350,000 and a guaranteed LOW (minimum) of
4
According to NJ PURE's merits brief, Vikatos settled his claims against Amy
Gore, M.D., Atuhani Burnett, M.D., Garim Dosi, M.D., and Gale Levy, M.D.
"prior to the return of the jury verdict[,]" and those physicians are not parties to
these appeals. Vikatos settled his claims with HUMC prior to trial and the
medical center is not a party to these appeals. Further, the complaint alleged a
per quod claim by Aeri Kim Vikatos, as the wife of Vasilios Vikatos. Because
her claims are derivative in nature, we refer to Vasilios Vikatos and Aeri Ki m
Vikatos collectively as "Vikatos" in this opinion.
A-4272-17T2
7
$350,000. As you know, these parameters reflect what
you had previous [sic] demanded during the last
settlement conference on 09.26.17 before Judge
Perez[]Friscia.
If this offer meets with your approval, please so
indicate below.
Vikatos accepted that offer through his attorney, who signed and returned NJ
PURE's December 4 correspondence on the same day it was received.
However, following opening statements on December 6, 2017, Vikatos'
counsel received an unsigned letter from NJ PURE's claims manager stating , in
pertinent part:
Via letter dated December 4, 2017, NJ PURE offered a
[h]igh-[l]ow as to Dr. Kagan consisting of a [l]ow of
$350,000 and a [h]igh of $1,350,000, which you
accepted by countersigning our letter on the same date.
Other than the damages parameters of the [h]igh-
[l]ow, it is NJ PURE's position that the parties did not
agree on any other terms and conditions of the [h]igh-
[l]ow. As you are no doubt aware, due to the nature of
[h]igh-[l]ow agreements, there are various details and
conditions that must be negotiated prior to the
beginning of trial. Indeed, you have already
acknowledged that there are issues that need to be
addressed through express agreement, such as what
would occur in the event of a mistrial or a hung jury.
One such condition, which is the basis of our present
dispute, is whether the parties agree to waive the right
to appeal an adverse verdict. NJ PURE is not aware of
any authority stating that it is customary to waive the
right to an appeal merely by agreeing to the damages
A-4272-17T2
8
parameters of a [h]igh-[l]ow in the absence of an
express agreement to do so. To be clear, at no time did
NJ PURE expressly indicate, in writing or otherwise,
that it intended to waive its right to an appeal by
offering a [h]igh-[l]ow to your client in connection with
this matter.
In this matter, NJ PURE has always considered
preserving its right to an appeal as a non-negotiable
condition of its [h]igh-[l]ow offer. We firmly believe
that preserving the right to appeal during the course of
the trial is necessary to protect not just the interests of
Dr. Kagan, but of all parties, by ensuring that the trial
is conducted in a fair, honest, and orderly manner in
accordance with the N[ew] J[ersey] Court Rules and
N[ew] J[ersey] Rules of Evidence.
To the extent you understood that NJ PURE
intended to waive its right to appeal by virtue of
offering a [h]igh-[l]ow – which seems questionable due
to the fact that the parties proceeded to negotiate this
and various other conditions – NJ PURE is compelled
to take the position that there was never a meeting of
the minds at the time you countersigned the December
4, 2017 offer letter and that there is no [h]igh-[l]ow
agreement in effect between the parties.
Notwithstanding the above, NJ PURE is still
willing to enter a [h]igh-[l]ow consisting of a [l]ow of
$350,000 and a [h]igh of $1,350,000 with the express
understanding that both parties preserve their right to
appeal an adverse verdict. We believe this [h]igh-[l]ow
represents a reasonable compromise . . . .
We hope that you will seriously consider our
offer and are open to discussing it further with you at
your convenience. . . . If this offer meets with your
approval, please indicate below.
A-4272-17T2
9
Finally, please be advised that NJ PURE reserves
the right to withdraw the [h]igh-[l]ow settlement offer
at any time.
At the conclusion of summations on December 14, 2017, NJ PURE
forwarded a final letter to Vikatos' counsel:
NJ PURE remains firm in its position that there was
never a meeting of the minds between the parties at the
time you countersigned the December 4, 2017 offer
letter and that there is currently no [h]igh-[l]ow
agreement in effect between the parties.
Furthermore, as you are aware, NJ PURE claims
personnel have been present in the courtroom
throughout this trial. Based upon their evaluation of the
conduct of the trial and the evidence presented, . . . NJ
PURE believes the likelihood of a defense verdict is
high. In light of the above, the purpose of this letter is
to inform you that NJ PURE is hereby withdrawing its
[h]igh-[l]ow offer as stated in our December 6, 2017
letter, which has not been accepted to date, consisting
of a [l]ow of $350,000 and a [h]igh of $1,350,000
including the express understanding that both parties
preserve their right to appeal an adverse verdict.
Later that day, the jury returned a "no cause" verdict in favor of Drs. Kagan and
Manno, finding neither doctor was liable for the injuries alleged by Vikatos.
Thereafter, Vikatos filed a motion to enforce settlement in the Bergen
Vicinage. NJ PURE opposed the motion on procedural and substantive grounds.
Among other things, NJ PURE claimed as a non-party it was "deprived of the
A-4272-17T2
10
opportunity for formal participation, representation, discovery, or an evidentiary
hearing." However, "[t]o ensure NJ PURE's ability to appropriately respond,
the court carried the . . . motion to provide NJ PURE further time[,]" and
apparently permitted NJ PURE to file a sur-reply without first seeking
permission pursuant to Rule 1:6-3(a) (prohibiting the filing of sur-replies
"without leave of court").
In support of its position, NJ PURE filed a certification of its claims
manager asserting the December 4, 2017 offer letter to Vikatos "was not
intended as a final offer of settlement." Rather, the term "'unconditional' was
intended only to convey that this settlement discussion—as opposed to prior
settlement discussions—would not be conditional [sic] upon the release of Dr.
Manno from the [Vikatos] lawsuit." She further stated that the offer letter "did
not address a number of important contractual terms," which were noted in her
subsequent letters.
Following extensive oral argument, Judge Perez Friscia reserved decision.
Thereafter, the judge entered an order. In a comprehensive twenty-four page
statement of reasons, which accompanied the order, the judge detailed her
reasons for granting Vikatos' motion. Notably, the judge recounted her vivid
A-4272-17T2
11
recollection of pretrial settlement discussions with counsel for the parties
(emphasis added):
As Bergen County settlement judge, the parties'
respective firms and NJ PURE have participated in
numerous conferences with the court and are familiar
with the settlement process. The court in this matter,
as in all settlement conference matters, met with all
counsel jointly to discuss all material settlement points
and options. Th[e] court, thereafter, met separately
with counsel for [Vikatos] and defendants. It is
recognized that complex medical malpractice cases
often take multiple settlement conferences to reach
settlement. . . .
Th[e] court, at the first settlement conference [on
September 26, 2017] was informed as to the details of
each insurance policy and as to each defendant's
position with regard to settlement. Th[e] court,
thereafter, discussed potential settlement options,
including settlement by one or all parties out right, and
the possibility of entering into high-low agreements. In
discussing the possibility of high-low agreements, th[e]
court distinctly and particularly discussed the
advantages of a high-low agreement for the parties, as
a high-low less[e]ns the risk of the agreed parties and
brings the matter to a final conclusion after verdict. . . .
Relevantly, waiving appeal provides relief to a
defendant doctor in that there is no further exposure to
continued litigation or a new trial. If the medical
malpractice [action] concludes by way of a no cause
verdict, the plaintiff is provided with the agreed low
sum of money, and the doctor is not required to report
same to the medical practitioners' database, as there
was no finding of negligence. As the assigned
settlement judge in all medical malpractice matters,
recognizing the complexity and specific nuances, the
A-4272-17T2
12
court goes through all the available settlement options.
It is undisputed that this occurred in this case. Th[e]
court's recollection is clear. Counsel do not dispute that
this court discussed the potential for a high-low
agreement with the benefits of protecting the doctors'
assets if the verdict were to exceed the policy,
protecting the insurance carrier from potential bad faith
litigation (as the demands were below each doctor's
policy limit), and to protecting the doctors and
[Vikatos] from further litigation an [sic] appeal, and,
potentially, [the doctors'] reporting requirements.
Counsel are seasoned, learned, medical malpractice
practitioners and clearly had apparent authority to
negotiate through each settlement conference.
The judge squarely addressed the issues raised in view of the applicable
legal principles. Initially, she noted NJ PURE's December 4 correspondence
referenced the September 26, 2017 conference, during which the judge recalled
discussing "the benefits of a high-low" agreement. Importantly, the judge
recognized Vikatos' "counsel proceeded to trial with the knowledge that a high -
low [agreement] had been reached as to Dr. Kagan. . . . [and] tactically altered
[Vikatos'] presentation to the jury because of the understanding there [wa]s a
settlement with Dr. Kagan."
Further, the judge determined the terms of NJ PURE's December 4 offer
were clearly "unconditional"; devoid of a waiver of appeal; and its "parameters"
reflected Vikatos' demands as discussed in the September 26, 2017 settlement
conference. The judge further noted, "no attorney [who was present at the
A-4272-17T2
13
conference] certifie[d] that th[e] court was not very clear as to the term of
waiving appeal and that the advantage of a high-low agreement [was] the
conclusion of the case for all parties." 5
In particular, the judge recognized that, if the terms of the December 4,
2017 agreement had been ambiguous, a hearing might have been "necessary to
discern the intent of the parties at the time the agreement was entered into and
to implement that intent." The judge further acknowledged, generally, when
deciding a motion to enforce settlement, a hearing would be required to enable
the court to make factual and credibility determinations. Here, however, the
judge acknowledged her participation in settlement discussions afforded her the
5
The judge also referenced a certification of Dr. Kagan's counsel, filed by NJ
PURE, which stated "after the December 4, 2017 agreement was signed there
was a discussion, at [NJ PURE]'s request that the high-low agreement not
include a waiver of appeal." (Emphasis added). Three days after oral argument,
NJ PURE filed an additional submission, without seeking leave to do so pursuant
to Rule 1:6-3, which apparently included another certification of Dr. Kagan's
counsel (March 12, 2018 certification). Thereafter, the judge held a telephonic
conference with counsel and properly excluded NJ PURE's submission.
Nonetheless, NJ PURE impermissibly included the March 12, 2018 certification
in its appendix, see Rule 2:6-1, and improperly referenced it in its reply brief on
appeal. An issue that is not addressed in a party's initial merits brief is deemed
to be waived. See Drinker Biddle & Reath LLP v. N.J. Dept. of Law & Pub.
Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011). Further, because the
March 12, 2018 certification was not considered by the trial court , it is
inappropriate for our consideration on appeal. See Zaman v. Felton, 219 N.J.
199, 226-27 (2014).
A-4272-17T2
14
ability to conclude, without a hearing, that "the negotiation of a high -low
[agreement] . . . at all times while th[e] court was involved contemplated a
waiver of appeal." Accordingly, the judge concluded "based on the negotiations
and written agreement, a valid enforceable high-low agreement was entered into
between [Vikatos] and Dr. Kagan on December 4, 2017."
While the motion to enforce settlement was pending in Bergen County,
NJ PURE filed a declaratory judgment action in Mercer County against Vikatos,
seeking a determination that the high-low agreement was not a final, enforceable
agreement. NJ PURE contended the motion to enforce the settlement was
"procedurally improper because NJ PURE [wa]s not a party to that action, [w]as
not . . . served with process in that action, [and w]as not . . . served with the
pending [m]otion in that action. . . . " NJ PURE's one-count complaint demanded
a jury trial. In response, Vikatos filed a motion to dismiss the complaint in lieu
of filing an answer.
Thereafter, in a cogent statement of reasons, incorporating Judge Perez
Friscia's written decision, Mercer County Judge R. Brian McLaughlin granted
Vikatos' motion. In doing so, the judge determined NJ PURE's declaratory
judgment action "clearly involves the same core set of facts as those [asserted]
in the motion to enforce settlement in the Bergen action." Accordingly, the
A-4272-17T2
15
judge barred NJ PURE's action pursuant to the entire controversy doctrine, and
dismissed its complaint as moot.
III.
On appeal, NJ PURE renews the arguments it raised before Judge Perez
Friscia, essentially claiming: its due process rights were violated because it was
not a party to Vikatos' complaint; the judge improperly acted as a fact witness
in lieu of holding a hearing to determine the enforceability of the high -low
agreement; and the December 4, 2017 high-low settlement offer did not include
material terms, such as the right to appeal and, accordingly, the ensuing
"agreement" is unenforceable. NJ PURE further contends Judge McLaughlin
erred by relying on Judge Perez Friscia's decision as a basis to dismiss its
complaint.
Having reviewed the record, we find no basis to disturb either judge's
thoughtful analysis of the issues presented, and affirm substantially for the
reasons set forth in their respective statements of reasons. We add only the
following comments.
A-4272-17T2
16
A.
(A-4275-17)
The terms of the December 4, 2017 high-low agreement were not
ambiguous and were clearly "unconditional." Because the agreement is silent
as to the right to appeal, however, we must "look to the expressed intent of the
parties and the context of the agreement." Serico v. Rothberg, 234 N.J. 168, 179
(2018).
Here, Judge Perez Friscia detailed her recollection that she "distinctly and
particularly discussed" the benefits of a high-low agreement with the parties,
including post-verdict finality. The parties "understood and discussed" the
nature of a waiver of appeal, particularly if the jury returned a no cause verdict,
"which [would be] a non-reportable event to the medical board, and the matter
would be concluded and could not be appealed." Notably, no defense counsel
or party filed a certification asserting otherwise.
Our Supreme Court decided Serico shortly after Judge Perez Friscia
rendered her decision. In that case, the plaintiff sought to recover counsel fees
and litigation expenses permitted under Rule 4:58-2, but which were not
included in the high-low agreement. Id. at 173. In concluding the plaintiff was
A-4272-17T2
17
not entitled to those expenses, the Court highlighted the distinction between a
high-low agreement and an offer of judgment:
An offer of judgment pursuant to Rule 4:58 is designed
to encourage parties to settle claims that ought to be
settled, saving time, expense, and averting risk, while
the specter of the continued prosecution of the lawsuit
remains. A high-low agreement, in contrast, only
mitigates the risk faced by the litigants—it saves no
time or expense related to litigation and requires the full
panoply of judicial process, up to and including a jury
verdict. Although the high-low agreement is a
settlement, it is not the sort of settlement contemplated
by Rule 4:58; rather, it serves a different purpose and
provides distinct benefits.
....
A crucial aspect of any high-low agreement is finality;
both parties benefit from the strict and explicit
limitation of financial exposure that such agreements
provide.
[Id. at 179-180 (emphasis added).]
Clearly, as Judge Perez Friscia astutely observed, the purpose of the high-
low agreement was to provide finality to the parties and avoid reporting
requirements 6 where, as here, a no cause verdict was rendered. The high-low
offer as written by NJ PURE expressly stated it was "unconditional." The
6
See N.J.S.A. 17:30D-17(a) (requiring an insurer to notify the Medical
Practitioner Review Panel "of any medical malpractice claim settlement,
judgment or arbitration award . . . .")
A-4272-17T2
18
implicit waiver of the right to appeal satisfies the parties' intentions, and
underscores the "crucial [finality] aspect" of the December 4, 2017 high l ow
agreement. Id. at 180. Accordingly the certification filed by NJ PURE's claims
manager does not dispel the finality of the December 4, 2017 agreement.
Moreover, because we find the terms of the December 4 agreement were
unambiguous and the parties did not file certifications disputing the judge's
recollection of settlement discussions, NJ PURE's argument that the judge
improperly decided the motion without holding a plenary hearing is unavailing.
Eaton, 368 N.J. Super. at 222. Indeed, the cases cited by NJ PURE are readily
distinguishable from the present matter. See e.g., Dalton v. Barone, 310 N.J.
Super. 375, 379, 381 (App. Div. 1998) (remanding for "possible expansion of
the record" when the settlement judge could not recall the settlement
conference). Unlike the judge in Dalton, Judge Perez Friscia's recollection of
the settlement conferences in this matter is undisputed.
Nor did the judge rely on her "private knowledge" of the settlement
negotiations in that counsel were also present and participated therein. Contra
Wallington Home Owners Ass'n v. Borough of Wallington, 130 N.J. Super. 461,
465 (App. Div.) (criticizing the trial judge for citing his personal opinion that a
shopping center would not thrive in the proposed locale), aff'd o.b., 66 N.J. 30A-4272-17T2
19
(1974); Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960) (finding
the trial judge improperly relied on "private knowledge" when he simpl y
"guessed" that the husband in a divorce action earned more income than what
he reported on his tax return).
B.
(A-4272-17)
The entire controversy doctrine "embodies the principle that the
adjudication of a legal controversy should occur in one litigation in only one
court; accordingly, all parties involved in a litigation should at the very least
present in that proceeding all of their claims and defenses that are related to the
underlying controversy." Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 605
(2015). The purposes of the doctrine are "(1) the need for complete and final
disposition through the avoidance of piecemeal decisions; (2) fairness to parties
to the action and those with a material interest in the action; and (3) efficiency
and the avoidance of waste and the reduction of delay." Ibid. (quoting DiTrolio
v. Antiles, 142 N.J. 253, 267 (1995)).
"In determining whether a subsequent claim should be barred under [the
entire controversy] doctrine, 'the central consideration is whether the cl aims
against the different parties arise from related facts or the same transaction or
series of transactions.'" Ibid. (quoting DiTrolio, 142 N.J. at 267). "It is the core
A-4272-17T2
20
set of facts that provides the link between distinct claims against the same parti es
. . . and triggers the requirement that they be determined in one proceeding."
Ibid. (alteration in original) (quoting DiTrolio, 142 N.J. at 267-68). "[T]here is
an obvious waste of judicial resources if the second litigation would have been
obviated or rendered unnecessary by mandatory joinder." DiTrolio, 142 N.J. at
278.
Here, NJ PURE claims at the time it filed its declaratory judgment action,
"there was no other action [then] pending between the same parties on the same
issues" apparently because it was not a named party in Vikatos' medical
negligence action. However, as Judge Perez Friscia noted in deciding the
motion to enforce settlement, as the insurance carrier for Drs. Kagan and Manno,
NJ PURE could "participate, negotiate, and enter into a settlement agreement in
the underlying action on behalf of a party." Accordingly, it is axiomatic that
Vikatos' motion to enforce settlement and NJ PURE's declaratory judgment
action arose from the December 4, 2017 high-low settlement. NJ PURE's claims
manager was intimately involved in pretrial settlement negotiations; to claim the
parties were dissimilar is a distinction without a difference.
A-4272-17T2
21
To the extent we have not otherwise addressed NJ PURE's remaining
arguments, we find they lack sufficient merit to warrant discussion in our written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4272-17T2
22