CAROL M. COVER VS. GOVERNMENT EMPLOYEES INSURANCEÂ COMPANY VS. JANGJUMAY DUKUREH VS. SHLOMO SINGER, ESQ. (L-4156-13, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5734-14T1
CAROL M. COVER and DONOVAN
COVER, her husband,
Plaintiffs-Appellants,
v.
GOVERNMENT EMPLOYEES INSURANCE
COMPANY,
Defendant/Third-Party
Plaintiff-Respondent,
v.
JANGJUMAY DUKUREH,
Third-Party Defendant/
Fourth-Party Plaintiff-
Appellant,
v.
SHLOMO SINGER, ESQ., ROBERT
A. RASKAS, ESQ. and LAW OFFICES
OF ROBERT A. RASKAS,
Fourth-Party
Defendants-Respondents.
___________________________________________________
Argued March 21, 2017 – Decided September 11, 2017
Before Judges Messano, Suter and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-4156-13.
Michael C. Meribe argued the cause for
appellants (Michael C. Meribe, PC, attorneys;
Mr. Meribe, of counsel and on the brief).
Darren C. Kayal argued the cause for
respondent Government Employees Insurance
Company (Rudolph & Kayal, attorneys; Mr.
Kayal, on the brief).
Christopher J. Carey argued the cause for
respondents Shlomo Singer, Esq., Robert A.
Raskas, Law Offices of Robert A. Raskas
(Graham Curtin, attorneys; Mr. Carey, of
counsel and on the brief; Michelle M. O'Brien,
on the brief).
PER CURIAM
While attempting to make a U-turn, Jangjumay Dukureh drove
her car into the opposite lane of traffic and struck a car driven
by plaintiff Carol Cover.1 The damage to Dukureh's car was
minimal, and she suffered no injuries. The airbags in plaintiff's
car never deployed, but she was taken to the hospital with
complaints of neck and shoulder pain, treated and released. Two
years later, plaintiff underwent cervical spine surgery. At the
time of the accident, Dukureh was insured through an automobile
insurance policy issued by the Government Employees Insurance
1
Plaintiff's husband Donovan Cover asserted a per quod claim in
the complaint. Because his claim is wholly-derivative of
plaintiff's claims, we use the singular "plaintiff" throughout
this opinion.
2 A-5734-14T1
Company (GEICO), with bodily injury liability limits of $25,000
per person and $50,000 per occurrence.
Plaintiff filed suit against Dukureh (the negligence action)
and, following a proof hearing, obtained a default judgment for
$260,512.38, and $20,000 in favor of her husband. More than nine
months later, plaintiff's counsel notified GEICO by phone and
letter of the judgment against its insured. GEICO assigned the
Law Offices of Robert A. Raskas to represent Dukureh, and, one of
its attorneys, Shlomo Singer, moved to vacate the default judgment.
Plaintiff opposed the motion.
Contemporaneously, GEICO sent Dukureh a reservation of rights
letter, which stated that GEICO did
not waive any of its rights or admit any
obligations under the policy . . . .
We are making this reservation of rights
because you have not cooperated with our
investigation. We have tried to contact you
through telephone calls, in person contact by
a field representative, and written
correspondence and you have not responded.
The judge denied the motion to vacate. Her handwritten
notation on the order said: "As the defendant has failed to
establish excusable neglect pursuant to R. 4:50-1. The defendant
was duly served and the defendant and his [sic] insurer were on
notice as to the existence of the claim, entry of default and
3 A-5734-14T1
proof hearing." A second judge denied Dukureh's motion for
reconsideration.
GEICO then notified plaintiff's counsel and Dukureh that it
was disclaiming any and all obligations under the policy based
upon Dukureh's "failure to cooperate . . . in the investigation
and subsequent handling of th[e] loss, including [her] failure to
timely notify [GEICO] of the suit." Plaintiff moved to amend her
complaint to include a count for declaratory relief against GEICO,
which GEICO opposed. Dukureh's counsel moved to be relieved. A
third judge denied both motions, reasoning the default judgment
entered more than one year earlier had concluded the negligence
action.
Plaintiff then filed the instant complaint, seeking
declaratory relief against GEICO and asserting a claim of bad
faith. Two months later, after GEICO sought dismissal of the
complaint for plaintiff's failure to state a claim and to name
Dukureh as an indispensable party, Dukureh assigned her rights
under the policy to plaintiff, in return for plaintiff's agreement
not to attempt any collection of the default judgment. Plaintiff
moved for summary judgment, arguing GEICO was collaterally
4 A-5734-14T1
estopped from disclaiming coverage because the first judge had
already decided the insurer was on notice.2
The judge denied GEICO's motion to dismiss, concluding
plaintiff had standing to bring the suit. He also denied
plaintiff's motion for summary judgment (the August 2013 order).
Plaintiff sought reconsideration, which the judge denied by order
dated November 8, 2013 (the November 2013 order).
GEICO answered and named Dukureh as a third-party defendant.
She never filed a responsive pleading, and the court entered
default against her. Two months later, plaintiff's counsel
notified GEICO that he was representing Dukureh, and requested
GEICO's consent to vacate the default. GEICO refused. A fourth
judge granted Dukureh's motion, vacated default and permitted
Dukureh, now represented by plaintiff's counsel, to file an answer
and counterclaim. The judge severed plaintiff's bad faith claim
against GEICO until the underlying coverage issue was decided.
In June 2014, more than four years after filing the negligence
action and more than two years after obtaining default judgment
against Dukureh, plaintiff filed a fourth amended complaint
seeking declaratory relief against GEICO and adding claims for
2
Plaintiff primarily asserted that the first judge's decision was
"law of the case," but also argued collateral estoppel as a basis
for relief. On appeal, plaintiff and Dukureh limit the argument
to collateral estoppel and res judicata.
5 A-5734-14T1
negligence and consumer fraud. Represented by the same attorney,
Dukureh filed her answer and a fourth-party complaint against
Singer and the Raskas law firm (collectively, the Raskas
defendants) alleging legal malpractice. A fifth judge struck
GEICO's pleadings for failure comply with discovery orders.
Motion practice continued unabated. In February 2015, Judge
Dennis F. Carey heard arguments on GEICO's motion to reconsider
and restore its pleading; the Raskas defendants' motion for summary
judgment; and plaintiff/Dukureh's motion to declare GEICO's
reservation of rights and disclaimer of coverage invalid, and
grant other relief, including permitting discovery on their bad
faith claims against GEICO.
In a series of orders (the February 2015 orders), the judge
granted GEICO's motion for reconsideration, restored its pleadings
and ordered it to supply discovery on the coverage action within
thirty days. He denied plaintiff's/Dukureh's discovery motion and
motion for declaratory relief, and he granted the Raskas defendants
summary judgment dismissing the complaint as to them. The judge
entered another order in March (the March 2015 order) that extended
discovery and required plaintiff's counsel to supply electronic
copies of two letters he allegedly sent to GEICO in 2011, notifying
the company of the negligence action and the proof hearing.
6 A-5734-14T1
GEICO moved for summary judgment, and plaintiff/Dukureh
cross-moved for partial summary judgment, precluding GEICO from
re-litigating any issue as to notice based upon collateral estoppel
and res judicata.3 On July 28, 2015, the judge entered an order
(the July 2015 order) granting GEICO summary judgment dismissing
plaintiff's complaint with prejudice. In response to a letter
from plaintiff's counsel regarding disposition of his cross-motion
for partial summary judgment, the judge entered an order denying
the motion (the August 2015 order).
Plaintiff and Dukureh (collectively, appellants) seek review
of the August 2013, November 2013, February 2015, March 2015, July
2015, and August 2015 orders. We affirm.
I.
Regarding the August 2013 order, plaintiff argues the judge
erred by denying her initial motion seeking declaratory relief
against GEICO because the doctrines of collateral estoppel and res
judicata precluded further litigation on the issue of notice. She
contends that issue was conclusively decided in the negligence
action. We disagree.
3
GEICO also moved to dismiss based upon counsel's failure to
produce the 2011 letters previously ordered by the judge. This
motion was not heard because the return date was after the return
date of the summary judgment motions.
7 A-5734-14T1
"The term 'res judicata' refers broadly to the common-law
doctrine barring relitigation of claims or issues that have already
been adjudicated." Velasquez v. Franz, 123 N.J. 498, 505 (1991).
"Collateral estoppel, in particular, represents the 'branch of the
broader law of res judicata which bars relitigation of any issue
which was actually determined in a prior action, generally between
the same parties, involving a different claim or cause of action.'"
Tarus v. Borough of Pine Hill, 189 N.J. 497, 520 (2007) (quoting
Sacharow v. Sacharow, 177 N.J. 62, 76 (2003)). The party asserting
the bar must demonstrate:
(1) the issue to be precluded is identical to
the issue decided in the prior proceeding; (2)
the issue was actually litigated in the prior
proceeding; (3) the court in the prior
proceeding issued a final judgment on the
merits; (4) the determination of the issue was
essential to the prior judgment; and (5) the
party against whom the doctrine is asserted
was a party to or in privity with a party to
the earlier proceeding.
[First Union Nat'l Bank v. Penn Salem Marina,
Inc., 190 N.J. 342, 352 (2007) (quoting
Hennessey v. Winslow Twp., 183 N.J. 593, 599
(2005)).]
Even when these requirements are met, collateral estoppel will not
apply if the result is inequitable. Allen v. V & A Bros., 208
N.J. 114, 138 (2011).
"[C]ollateral estoppel applies only to matters or facts that
are directly in issue and are necessary to support the judgment
8 A-5734-14T1
rendered in the prior action. The doctrine does not extend to 'any
matter which came collaterally in question, . . . nor . . . any
matter to be inferred by argument from the judgment.'" Allesandra
v. Gross, 187 N.J. Super. 96, 105 (App. Div. 1982) (alteration in
original) (emphasis added) (quoting Mazzilli v. Accident & Cas.
Ins. Co., 26 N.J. 307, 315-16 (1958)).
The only issues in the negligence action were whether Dukureh
was negligent and if so, whether that negligence was a proximate
cause of plaintiff's damages. The proof hearing quantified those
damages. Whether GEICO had notice of plaintiff's claim was not
an issue necessary to support the judgment against Dukureh, and
Singer was representing only Dukureh's interests, not GEICO's,
when he sought to vacate default. See, e.g., Hartford Acci. &
Indem. Co. v. Aetna Life & Casualty Ins. Co., 98 N.J. 18, 24 (1984)
(discussing potential conflict of interest occasioned by having
one attorney represent insured and at the same time represent the
insurer challenging coverage). The notation in the first judge's
order that GEICO had notice was not a fact necessary to decide
whether to vacate the default judgment entered against Dukureh.
Although GEICO was not a party to the negligence action,
plaintiff argues GEICO was in privity with Dukureh. "'Generally,
one person is in privity with another and is bound by and entitled
to the benefits of a judgment as though he was a party when there
9 A-5734-14T1
is such an identification of interest between the two as to
represent the same legal right.'" Zirger v. Gen. Accident Ins.
Co., 144 N.J. 327, 338-39 (1996) (quoting Moore v. Hafeeza, 212
N.J. Super. 399, 403-04 (Ch. Div. 1986)).
Here, the legal right Dukureh sought to vindicate was relief
from a default judgment entered without her participation.
Although GEICO had an interest in providing a defense to its
insured, it did not share the same interest as Dukureh. If the
default were not vacated, GEICO could disclaim responsibility for
the judgment based on Dukureh's lack of cooperation, which it
eventually did, or limit its obligation to the $25,000 policy
limit.
In short, collateral estoppel did not bar GEICO's litigation
of the issue of notice. We affirm the August 2013 order.
Plaintiff's arguments regarding the November 2013 order denying
her motion for reconsideration lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm
the November 2013 order.
II.
Appellants argue we must reverse Judge Carey's February 2015
order granting summary judgment to the Raskas defendants. They
contend the matter was not ripe for summary judgment because
discovery was outstanding; Dukureh did not make an illegal
10 A-5734-14T1
assignment of a tort action, i.e., her legal malpractice claim,
to plaintiff; and the judge misapplied summary judgment standards
to conclude Dukureh suffered no damages and the Raskas defendants
did not breach their professional duty. We need not address all
these claims because Dukureh could not prove any damages resulted
from the Raskas defendants' allegedly negligent representation.
On this issue in particular, further discovery was not
necessary. As the Court has said:
A motion for summary judgment is not premature
merely because discovery has not been
completed, unless plaintiff is able to
"demonstrate with some degree of particularity
the likelihood that further discovery will
supply the missing elements of the cause of
action."
[Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J.
544, 555 (2015) (quoting Wellington v. Estate
of Wellington, 359 N.J. Super. 484, 496 (App.
Div.), certif. denied, 177 N.J. 493, (2003);
Auster v. Kinoian, 153 N.J. Super. 52, 56,
(App. Div. 1977)).]
Dukureh argues she was entitled to further discovery regarding
Geico's retention of the Raskas law firm, yet those circumstances
pertain only to the question of whether Singer's legal
representation was deficient. Dukureh herself provided all
information relevant to the damages she allegedly suffered in
certifications and deposition testimony.
11 A-5734-14T1
We consider the grant of summary judgment de novo, using the
"'same standard as the motion judge.'" Globe Motor Co. v. Igdalev,
225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J. 22,
38 (2014)). Providing all favorable inferences to the non-moving
party, Rule 4:46-2(c), our "task is to determine whether a rational
factfinder could resolve [an] alleged disputed issue in favor of
the non-moving party." Perez v. Professionally Green, LLC, 215
N.J. 388, 405-06 (2013). An opposing party must "do more than
'point[] to any fact in dispute' in order to defeat summary
judgment." Globe Motor Co., supra, 225 N.J. at 479 (alteration
in original) (quoting Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 529 (1995)). We review issues of law de novo and accord
no deference to the trial judge's legal conclusions. Nicholas v.
Mynster, 213 N.J. 463, 478 (2013).
"[A] legal malpractice action has three essential elements:
'(1) the existence of an attorney-client relationship creating a
duty of care by the defendant attorney, (2) the breach of that
duty by the defendant, and (3) proximate causation of the damages
claimed by the plaintiff.'" Jerista v. Murray, 185 N.J. 175, 190-
191 (2005) (quoting McGrogan v. Till, 167 N.J. 414, 425 (2001)).
Dukureh stated in her certification:
I retained Mr. Meribe to represent me in this
case. He explained to me the advantages and
disadvantages of a joint representation and I
12 A-5734-14T1
fully consented to his handling this matter
on my behalf. Indeed, I do not see any
disadvantage from my point of view. He is not
charging me any fees and my retainer agreement
states that he can only be paid from whatever
he can collect from GEICO for the breach of
contract. With regard to the judgment
obtained by Plaintiff in the prior lawsuit,
Plaintiff has already stipulated that she has
waived her right to enforce the judgment in
exchange for my giving her an Assignment of
Right.
[Emphasis added.]
Judge Carey found as a result "there are no damages that could
even possibly result from the case . . . in light of the quid pro
quo of the assignment." Dukureh may continue to have a judgment
on record against her, but success in the legal malpractice suit
would not have discharged the judgment. Dukureh's contentions to
the contrary are meritless.
III.
Appellants contend we should reverse the February 2015 order
denying them declaratory relief because GEICO's December 2012
reservation of rights (ROR) and April 2013 disclaimer were invalid
as a matter of law, and GEICO was estopped from disclaiming
coverage or otherwise waived its right to disclaim coverage.
Because these arguments are essentially repeated by appellants as
to Judge Carey's July 2015 order granting summary judgment to
GEICO, and his August 2015 order denying plaintiff's cross-motion
13 A-5734-14T1
for partial summary judgment and declaratory relief, we choose to
address the issues only once after first providing some context
from the motion record.
It is undisputed that Dukureh notified GEICO of the accident
on March 26, 2008, approximately one week after it occurred. Its
claims adjusters attempted to reach her by telephone on April 24,
25, 30, and August 21, 2008, without success. Adjusters also
mailed letters to her on April 25 and August 22, 2008, asking that
she contact them. GEICO's activity logs show no response from
Dukureh to the phone calls or letters.
Meanwhile, GEICO contacted plaintiff's attorney, requesting
information and attempting to schedule independent medical
examinations. GEICO never received signed HIPAA authorizations
that would allow it to obtain plaintiff's medical records. On
August 27, 2008, a claims adjuster wrote to plaintiff's counsel:
"Based upon the information we received to date, it does not appear
your client's claim will pierce the NJ Verbal Tort Threshold
. . . . If you are in receipt of information to the contrary,
please send it to my attention within 30 days." GEICO attempted
to schedule independent medical examinations of plaintiff in
September 2008, but these appointments were cancelled. On October
10, 2008, an adjuster mailed a letter to Dukureh explaining that
GEICO had been unable to resolve plaintiff's injury claim and
14 A-5734-14T1
directing her to contact him immediately if she received legal
documents from plaintiff's counsel.
Plaintiff served the complaint on Dukureh on August 31, 2010.
At her deposition, Dukureh stated that someone came to her home
to serve her with papers, but she does not speak nor read English,
and she did not know what the documents said. Despite not
understanding the documents, Dukureh said she called GEICO and
told them that somebody at the door handed her papers. GEICO had
no record of receiving a phone call from Dukureh in 2010.
Dukureh's son was deposed in 2015, after plaintiff initially
moved for declaratory relief, but before GEICO moved for summary
judgment. Contrary to his mother's version of events, the son
stated his mother gave him the documents involving plaintiff's
suit, and he called GEICO. He could not recall who he spoke to.
As noted, the record contains copies of letters sent by
plaintiff's counsel to GEICO, in January 2011, advising it of
plaintiff's suit, and in December 2011, advising it of the proof
hearing. GEICO's representatives denied ever receiving these
letters, explaining that in 2011, no documents were entered in
GEICO's activity log or claim file for the Dukureh claim.
Plaintiff's counsel was unresponsive to GEICO's discovery demands
that he produce the electronic file copies of the 2011 letters,
and, ultimately, the March 2015 order required plaintiff's counsel
15 A-5734-14T1
to produce the electronic files. They were not produced prior to
the July 2015 order granting GEICO summary judgment.
Once GEICO received notice of the default judgment on
November 29, 2012, it attempted to contact Dukureh by mail, by
telephone, and by visiting her home. All these attempts were
unsuccessful. It appointed counsel to represent her, and he
attempted to protect Dukureh's interests by immediately filing a
motion to vacate the default judgment, as outlined above.
A.
Plaintiff argues the 2012 ROR letter was legally deficient
because it was served after GEICO had commenced representation and
failed to inform Dukureh that she had the right to reject
representation under its terms. We disagree.
Our courts have long recognized the efficacy of an ROR letter,
and the right of the carrier to assume defense of its insured
under that reservation upon her consent, which may be inferred by
the insured's silence. Merchs. Indem. Corp. of N.Y. v. Eggleston,
37 N.J. 114, 126 (1962). However, "to spell out acquiescence by
silence, the letter must fairly inform the insured that the offer
may be accepted or rejected." Id. at 128.
It is undisputed that GEICO's December 2012 ROR letter did
not advise Dukureh that she need not consent and could retain her
16 A-5734-14T1
own counsel. Plaintiff argues that GEICO should be estopped from
relying on the ROR because of this infirmity, but we disagree.
In Griggs v. Bertram, 88 N.J. 347, 356 (1982), the Court
explained that the rationale of estoppel in the context of an
absent or invalid ROR letter "is that once the insurer has
acknowledged the claim and assumes control of the defense, the
insured is justified in relying upon the carrier to protect it
under its policy." Here, however, Dukureh denied knowing about
the lawsuit or the default judgment, so she would have had no
reason to believe a legal defense was necessary. The ROR letter
did not induce Dukureh to rely on GEICO for a defense to
plaintiff's suit.
Moreover, contrary to plaintiff's arguments, GEICO did not
exercise exclusive control of the defense in the negligence action
for any appreciable time, a factor that might otherwise weigh in
favor of the successful invocation of estoppel. See, e.g., Sneed
v. Concord Ins. Co., 98 N.J. Super. 306, 320 (App. Div. 1967)
(holding that estoppel was warranted where insurer maintained
exclusive control over claim for "substantial period" of twenty-
two months after learning that insured had breached policy
conditions).
Upon receiving notice of the default judgment, GEICO retained
the Raskas defendants and sent the ROR letter. Within three
17 A-5734-14T1
months, their representation of Dukureh ended, after a motion to
vacate default was denied, and they unsuccessfully sought
reconsideration. GEICO's representation did not materially impair
Dukureh's right to defend herself; the default judgment had already
been entered against her.
B.
In initially seeking declaratory relief, and again in
opposing GEICO's summary judgment motion and moving for partial
summary judgment and declaratory relief, plaintiff argued that
GEICO's disclaimer was ineffective because GEICO failed to
demonstrate how Dukureh's breach of the policy's cooperation
provisions resulted in the irretrievable loss of substantial
rights in defense of the negligence action. Plaintiff reiterates
the arguments here, but we are unpersuaded.
In Cooper v. Government Employees Insurance Co., 51 N.J. 86,
94 (1968), the Court reasoned it would be unfair for an insured
to lose insurance coverage for violating a notice provision when
there is no likelihood that the insurer was prejudiced by the
breach. Accordingly, it held that "the carrier may not forfeit
the bargained-for protection unless there are both a breach of the
notice provision and a likelihood of appreciable prejudice. The
burden of persuasion is the carrier's." Ibid. (footnote omitted);
see Gazis v. Miller, 186 N.J. 224, 230-31 (2006) (discussing
18 A-5734-14T1
various contexts in which New Jersey courts have applied Cooper).
We have said:
"[T]wo variables" generally should be
considered in determining whether an insurer
was appreciably prejudiced by a breach of the
insured's duties under the policy: first,
"whether substantial rights have been
irretrievably lost" as a result of the
insured's breach, and second, "the likelihood
of success of the insurer in defending against
the accident victim's claim" had there been
no breach.
[Hager v. Gonsalves, 398 N.J. Super. 529, 537
(App. Div.) (quoting Sagendorf v. Selective
Ins. Co. of Am., 293 N.J. Super. 81, 93 (App.
Div. 1996)), certif. denied sub nom. High
Point Ins. Co. v. Rutgers Cas. Ins. Co., 195
N.J. 522 (2008).]
Here, Dukureh failed to respond to any inquiries, leaving
Singer ill-equipped to vacate the default judgment in the first
instance, and leaving GEICO ill-equipped to defend Dukureh. A
"total lack of cooperation" is relevant when considering whether
an insurer is appreciably prejudiced. Id. at 538. Moreover,
despite plaintiff's argument to the contrary, although the traffic
accident was clearly Dukureh's fault, it is not so clear that
plaintiff could demonstrate the injuries proximately caused by the
accident pierced the verbal threshold4 or that her damages exceeded
the policy limits.
4
N.J.S.A. 39:6A-8(a).
19 A-5734-14T1
As noted, there was little damage to both vehicles. Plaintiff
was treated and released from the hospital on the day of the
accident; x-rays revealed no fracture. It is true that an MRI in
July 2008 revealed a disc herniation in her cervical spine, but
plaintiff never underwent an independent medical examination. In
sum, it cannot be disputed that Dukureh breached the cooperation
provisions of the policy, and GEICO demonstrated it was appreciably
prejudiced by that breach.
Plaintiff argues summary judgment was inappropriate because
there were material disputed facts as to whether GEICO was on
notice of the suit prior to default judgment being entered against
Dukureh. She relies upon Dukureh's statements regarding her calls
to GEICO and her counsel's 2011 letters notifying the company of
the suit and default hearing.
As demonstrated, Dukureh's version of how she received
plaintiff's summons and complaint, and what she did about it,
differed markedly from her son's testimony. Further, the business
records of the insurer document none of these alleged contacts,
nor is there any other proof. See, e.g., Martin v. Rutgers Cas.
Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002) (holding
proponent's self-serving statement insufficient to create material
factual dispute when contradicted by unequivocal lack of
supporting documentary evidence in the record).
20 A-5734-14T1
The letters from plaintiff's counsel are puzzling. Although
they appear twice in the appellate record as exhibits supporting
plaintiff's motion practice, they were never accompanied by a
certification from counsel, nor did counsel furnish any proof of
service of these letters upon GEICO. GEICO's records do not
indicate that it ever received the letters.
Further, there is no explanation in the record why counsel
waited nine months to notify GEICO of the default judgment.
Assuming arguendo GEICO's abject failure to respond to the second
letter in December 2011, advising the insurer of the proof hearing,
it is truly remarkable that the company flew into action
immediately upon receipt of counsel's notification of the default
judgment in November 2012. Based on this record, the letters
alone do not raise a disputed material fact that GEICO was on
notice of the suit.
In short, plaintiff was not entitled to partial summary
judgment when she sought declaratory relief, and Judge Carey
correctly granted GEICO summary judgment and dismissed plaintiff's
complaint. The balance of plaintiff's arguments to the contrary
on this issue lack sufficient merit to warrant discussion. R.
2:11-3(e)(1)(E). We affirm the February 2015 order denying
plaintiff declaratory relief, the July 2015 order granting GEICO
21 A-5734-14T1
summary judgment and the August 2015 order denying appellant's
motion for partial summary judgment.5
C.
The arguments appellants raise with respect to other
provisions of the February 2015 orders that granted GEICO's motion
for reconsideration and restored its pleadings and denied
appellants motion to compel the depositions of certain GEICO
employees and impose sanctions similarly require little
discussion.
"It is well established that 'the trial court has the inherent
power, to be exercised in its sound discretion, to review, revise,
reconsider and modify its interlocutory orders at any time prior
to the entry of final judgment.'" Lombardi v. Masso, 207 N.J.
517, 534 (2011) (quoting Johnson v. Cyklop Strapping Corp., 220
N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J.
196 (1988)). Similarly, resolution of discovery disputes,
including the imposition of sanctions, are broadly committed to
the discretion of the trial court. Pomerantz Paper Corp. v. New
Community Corp., 207 N.J. 344, 371 (2011). Judge Carey did not
mistakenly exercise his discretion.
5
In light of our decision, appellants' challenge to the March
2015 order in which Judge Carey, among other things, compelled the
electronic files of the 2011 letters be produced is moot.
22 A-5734-14T1
Affirmed.
23 A-5734-14T1