DAWN K. COOPER v. UNITED SPECIALTY INSURANCE COMPANY (L-9271-19 AND L-3506-21, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-0189-21
A-1002-21
DAWN K. COOPER,
Plaintiff-Appellant,
v.
UNITED SPECIALTY
INSURANCE COMPANY
and NATIONAL CLAIM
SERVICES, LLC,
Defendants-Respondents.
___________________________
DAWN K. COOPER,
Plaintiff-Appellant,
v.
FOREST HILLS 1, LLC,
C. FUSARI & SON LANDSCAPE
& DESIGN, INC. d/b/a ESSEX
DESIGN CONTRACTORS OF
NJ, LLC, FOREST HILLS URBAN
RENEWAL ASSOCIATION,
A LIMITED PARTNERSHIP,
FOREST HILL TERRACE
ASSOCIATION, INC. d/b/a
FOREST HILL TERRACE,
A CONDOMINIUM, and
FOREST HILLS GROUP, LLC,
Defendants-Respondents.
___________________________
Argued June 10, 2022 – Decided July 5, 2022
Before Judges Vernoia and Firko.
On appeal from an order in A-0189-21 and an
interlocutory order in A-1002-21 of the Superior Court
of New Jersey, Law Division, Essex County, Docket
Nos. L-3506-21 and L-9271-19.
Cory J. Rothbort argued the cause for appellant (Mazie
Slater Katz & Freeman, LLC, attorneys; David M.
Freeman, Cory J. Rothbort and Trevor D. Dickson, on
the briefs).
Sherri Pavloff (Stonberg Morgan, LLP) of the New
York bar, admitted pro hac vice, argued the cause for
respondents United Specialty Insurance Company and
National Claim Services, LLC (Michael S. Stonberg
(Stonberg Morgan, LLP) and Sherri Pavloff, attorneys;
Michael S. Stonberg, on the brief).
Jonathan R. Mehl argued the cause for respondent
Forest Hill Terrace Association, Inc.
PER CURIAM
In these appeals that were calendared back-to-back and consolidated for
the purpose of a single opinion, we address insurance-related claims. The issues
A-0189-21
2
presented arise from defendant Forest Hill Terrace Association, Inc.'s (Forest
Hill) decision not to request indemnification, under a general liability policy
issued by defendant United Specialty Insurance Co. (United), for plaintiff Dawn
K. Cooper's claim she suffered personal and economic injuries when she
allegedly slipped and fell in a laundry room in the condominium complex for
which Forest Hill serves as the condominium association.
Plaintiff argues the decision not to tender the claim may allow United to
later deny coverage and, as a result, she will be deprived of her interest in the
proceeds of the policy if she recovers a judgment against Forest Hill. In Forest
Hill's view, plaintiff's personal injury claim is devoid of merit, and it therefore
decided to defend itself in plaintiff's personal injury suit and pay any putative
damage award without recourse to its rights under the policy to avoid what it
anticipates would be increased future insurance premiums if it tendered a claim
to United.
In A-1002-21, plaintiff appeals from an order in her personal injury
lawsuit denying her motion to compel Forest Hill to tender an indemnification
claim to United. In A-0189-21, plaintiff appeals from an order dismissing her
complaint against United seeking a declaratory judgment United is obligated to
provide indemnification to Forest Hill under the policy for any damages plaintiff
A-0189-21
3
recovers against Forest Hill, and United is required "to provide medical expense
benefits" under the policy.
Based on our review of the record and the parties' arguments, in A-1002-
21 we vacate the order denying plaintiff's motion to compel Forest Hill to tender
a claim to United and we remand for further proceedings. In A-0189-21 we
affirm the court's order granting United's motion to dismiss plaintiff's
declaratory judgment complaint without prejudice.
I.
The genesis of the two lawsuits from which the pending appeals are taken
is plaintiff's claim she suffered personal injuries when she slipped and fell in the
laundry room of a condominium complex. At the time of the alleged accident,
Forest Hill had a general liability insurance policy with United providing
$1,000,000 of liability coverage, and $5,000 in medical expense coverage with
a $5,000 deductible.
Plaintiff filed a personal injury suit against Forest Hill alleging her
injuries were caused by its negligence. 1 In response to a motion filed on
plaintiff's behalf, the court ordered Forest Hill to provide plaintiff with insurance
1
Plaintiff's personal injury complaint asserted claims against other defendants
as well. We do not address those claims or discuss the other defendants because
they are not relevant to the issues presented on appeal.
A-0189-21
4
information and permitted plaintiff to contact Forest Hill's liability carrier,
United, concerning her claim. On January 15, 2021, plaintiff provided notice of
her claim directly to United, and United does not dispute it has notice of
plaintiff's claim against Forest Hill. Forest Hill did not request a defense or
indemnification coverage under the policy from United and, although it
acknowledges receipt of notice of plaintiff's personal injury lawsuit, United has
not made any coverage determinations under the policy in the absence of a
request for coverage from Forest Hill.
Plaintiff later filed a separate lawsuit pursuant to the Uniform Declaratory
Judgments Act, N.J.S.A. § 2A:16-50 to -62. She sought a judgment directing
United "provide liability benefits, including indemnification to" Forest Hill
pursuant to the "COVERAGE A BODILY INJURY AND PROPERTY
DAMAGE LIABILITY" provision (the bodily injury liability provision) of the
Forest Hill insurance policy. Plaintiff also sought a judgment directing United
"provide medical expense benefits to plaintiff" for her injuries sustained in the
laundry room accident pursuant to the "COVERAGE C MEDICAL
PAYMENTS" provision (the "medical payments provision") of the policy. In
response to the complaint, United filed a Rule 4:6-2(e) motion to dismiss for
failure to state a claim upon which relief may be granted.
A-0189-21
5
On September 10, 2021, the court granted United's motion, dismissing
plaintiff's complaint without prejudice. The court reasoned that plaintiff did not
have "third-party beneficiary status to enforce" Forest Hill's rights under the
policy and plaintiff did not possess an "actionable interest in the policy" at that
time sufficient to require that United take a position concerning indemnification
coverage. The court also found plaintiff's claim for medical expense benefits
was premature and not yet ripe.
The court explained that although the Condominium Act, N.J.S.A. 46:8B-
1 to -38, and specifically N.J.S.A. 46:8B-14(e), requires condominium
associations "purchase and maintain liability insurance for injuries that occur
within the common areas of the [c]ondominium," and Forest Hill's by-laws
similarly state it shall maintain a liability policy, those requirements do not
mandate that Forest Hill seek coverage under its liability policy when presented
with a claim. The court also determined it could not grant the requested relief—
a declaratory judgment Forest Hill is entitled to indemnification coverage and
medical expense benefits coverage under the policy—because Forest Hill, as the
insured, did not tender a claim and request coverage. The court entered an order
dismissing plaintiff's declaratory judgment action without prejudice.
A-0189-21
6
Eleven days later, plaintiff moved before a different court in the personal
injury action to compel Forest Hill to tender plaintiff's personal injury claim to
United. In an October 22, 2021 order, the court denied the motion without
prejudice. In scant findings supporting its denial, the court stated that it adopted
the court's determination in the declaratory judgment action that plaintiff did not
have standing under the Condominium Act or any decisional law.2
2
We observe there is a contradiction in the court's findings. The court states it
adopts the court's determination in the declaratory judgment action that plaintiff
lacked standing, but then incongruously states "plaintiff does in fact have third -
party standing." In the latter statement, the court clearly misspoke. Given the
context of the court's other statements to the parties, and its order, it is clear the
court adopted the declaratory judgment action court's determination plaintiff did
not have standing. Indeed, the court made no findings supporting a conclusion
plaintiff had standing and expressly stated it adopted the declaratory judgment
action court's determination plaintiff did not have standing. Moreover, on
appeal, the parties do not dispute the court determined plaintiff lacked standing
to move to compel Forest Hill to seek indemnification coverage from United.
Plaintiff's merits brief challenges the court's determination she did not have
standing; the second point of her brief is "PLAINTIFF HAS STANDING TO
ENFORCE THE POLICY," and Forest Hill's brief includes a point heading
stating "[PLAINTIFF] HAS NO STANDING TO ENFORCE
THE . . . POLICY[.]"
In dicta, the motion court also observed there is no requirement an insured make
a claim under an available insurance policy. In our view, that issue was not
properly presented to the court because Forest Hill, the insured, was not named
as a party to the declaratory judgment action and plaintiff did not seek a
declaratory judgment against Forest Hill on the issue. The court's observation
shall not be considered binding on the parties, who are free to raise the issue for
the court's consideration anew as appropriate in accordance with the Rules of
A-0189-21
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We granted plaintiff leave to appeal from the courts' orders and calendared
the appeals back-to-back. We consider plaintiff's appeals in turn.
II.
In her appeal, A-0189-21, from the order dismissing the declaratory
judgment complaint, plaintiff argues the court erred because: she is a third-party
beneficiary of Forest Hill's insurance policy and therefore entitled to the
requested relief under the Uniform Declaratory Judgments Act, N.J.S.A. 2A:16-
50 to -62, and N.J.S.A. 2A:15-23; she has standing to enforce United's obligation
under the policy to provide indemnification coverage; and her request for a
determination United is obligated to indemnify Forest Hill is ripe for
adjudication. She also argues she is entitled to assert a first-party direct cause
of action against United for recovery of medical expenses under the policy
because she has actually incurred medical expenses.
"Rule 4:6-2(e) motions to dismiss for failure to state a claim upon which
relief can be granted are reviewed de novo." Baskin v. P.C. Richard & Son,
Court on our remand in the personal injury action and in any future declaratory
judgment action.
3
N.J.S.A. 2A:15-2, provides: "A person for whose benefit a contract is made,
either simple or sealed, may sue thereon in any court and may use such con tract
as a matter of defense in an action against him although the consideration of the
contract did not move from him."
A-0189-21
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LLC, 246 N.J. 157, 171 (2021). "'At this preliminary stage of the litigation the
[c]ourt is not concerned with the ability of plaintiffs to prove the allegation
contained in the complaint,' and the plaintiff is 'entitled to every reasonable
inference of fact.'" Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo,
Hyman & Stahl, P.C., 237 N.J. 91, 107 (2019) (quoting Printing Mart-
Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). The court must
search the complaint "thoroughly 'and with liberality to ascertain whether the
fundament of a cause of action may be gleaned even from an obscure statement
of claim, opportunity being given to amend if necessary.'" Baskin, 246 N.J. at
171 (quoting Printing Mart, 116 N.J. at 746). Only where the court concludes
"the complaint states no claim that supports relief, and discovery will not give
rise to such a claim, the action should be dismissed." Dimitrakopoulos, 237 N.J.
at 107.
We affirm the court's dismissal of plaintiff's complaint seeking a
declaratory judgment that United is required to provide indemnification to
Forest Hill for any judgment obtained by plaintiff against Forest Hill in the
personal injury lawsuit. The complaint was correctly dismissed without
prejudice because the asserted claim is not ripe for adjudication.
A-0189-21
9
A claim is "ripe" for adjudication only where "the harm asserted has
matured sufficiently to warrant judicial intervention." Trombetta v. Mayor &
Comm'rs of Atlantic City, 181 N.J. Super. 203, 223 (Law Div. 1981). "A case's
ripeness depends on two factors: '(1) the fitness of issues for judicial review
and (2) the hardship to the parties if judicial review is withheld at this time.'"
Comm. to Recall Robert Menendez from the Office of U.S. Senator v. Wells,
204 N.J. 79, 99 (2010) (quoting K. Hovnanian Cos. of N. Cent. Jersey, Inc. v.
N.J. Dep't of Envtl. Prot., 379 N.J. Super. 1, 9 (App. Div. 2005)). "A declaratory
judgment claim is not ripe for adjudication if the facts illustrate that the rights
or status of the parties 'are future, contingent, and uncertain.'" Garden State
Equality v. Dow, 434 N.J. Super. 163, 189 (Law Div. 2013) (quoting Indep.
Realty Co. v. Twp. of N. Bergen, 376 N.J. Super. 295, 302 (App. Div. 2005)).
Plaintiff obtained an interest in Forest Hill's liability policy at the moment
she was allegedly injured. In re Estate of Gardinier, 40 N.J. 261, 265 (1963);
Dransfield v. Citizens Cas. Co. of N.Y., 5 N.J. 190, 194 (1950); Hanover Ins.
Co. v. McKenney, 245 N.J. Super. 282, 287-88 (Law Div. 1990). However, the
policy in which plaintiff obtained the interest includes an express limitation on
the suits that may properly be brought against United. More particularly,
A-0189-21
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paragraph 3 of "SECTION IV - COMMERCIAL GENERAL LIABILITY
CONDITIONS" of the policy provides:
No person or organization has a right under this
Coverage Part:
a. To join us as a party or otherwise bring us into a
"suit" asking for damages from an insured; or
b. To sue us on this Coverage Part unless all of its terms
have been fully complied with.
A person or organization may sue us to recover on an
agreed settlement or on a final judgment against an
insured; but we will not be liable for damages that are
not payable under the terms of this Coverage Part or
that are in excess of the applicable limit of insurance.
An agreed settlement means a settlement and release of
liability signed by us, the insured and the claimant or
the claimant's legal representative.
"The basic purposes" of this type of provision, otherwise known as a no-
action clause, are two-fold: first, "to avoid joinder of the insurance company by
the injured person in the damage action against the insured, and" second, "to
prevent suit against the carrier by the injured person or the insured until the
[d]amages have been fixed by final judgment after trial of that action or by
proper agreement." Condenser Serv. & Eng'g Co. v. Am. Mut. Liab. Ins. Co.,
45 N.J. Super. 31, 41 (App. Div. 1957). The provision is in accord with the
general principle that, "[o]rdinarily, an injured person possesses no direct cause
A-0189-21
11
of action against the insurer of the tortfeasor prior to recovery of judgment
against the latter[.]" Manukas v. American Ins. Co., 98 N.J. Super. 522, 524
(App. Div. 1968).
Here, paragraph (a) of the no-action provision of the policy bars suits for
damages against United until there is a "final judgment against the insured ."
Plaintiff's declaratory judgment action does not seek damages against United,
and therefore paragraph (a) of the no-action provision prohibiting suits for
damages is inapplicable to plaintiff's declaratory judgment complaint.
Paragraph (b) of the no-action provision is not limited to suits for
damages. It bars suits on the "Coverage Part unless all of its terms have been
fully complied with." Under the policy's plain language, a suit on the "Coverage
Part," including one for declaratory judgment, is permitted as long as the policy's
"terms have been fully complied with."
Plaintiff's complaint does not assert the policy's terms have been "fully
complied with," and plaintiff acknowledges Forest Hill has not complied with
the terms required to obtain indemnification coverage under the policy. Forest
Hill did not request coverage under the policy and instead opted not to tender a
claim or seek indemnification from United in the first instance. Indeed, plaintiff
recognized Forest Hill's failure to take the actions required under the policy to
A-0189-21
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obtain coverage; plaintiff moved in the personal injury action to compel Forest
Hill to comply with what she contends are the terms of the policy—by tendering
a claim and requesting coverage—to assure indemnification coverage is later
available in the event she obtains a judgment. Thus, plaintiff does not claim she
is entitled to sue for a declaratory judgment under the no-action provision of the
policy because she acknowledges the terms under which United would be
required to provide indemnification have not been "fully complied with."
For those reasons, plaintiff's request for declaratory relief was not ripe for
adjudication. Plaintiff claims an entitlement to bring suit to enforce the policy
terms against United, but she failed to plead facts allowing suit against United
under the policy's no-action provision. Moreover, plaintiff acknowledges that,
as a matter of fact, compliance with the terms of the policy that would establish
United's indemnification obligation have not yet been satisfied because Forest
Hill did not tender a claim and request indemnification from United.
We recognize that no-action provisions in insurance policies are
"never . . . intended to serve nor can [they] be construed to serve, the purpose of
avoiding a declaration of rights when the insurer allegedly has repudiated the
contract and declined to furnish an agreed defense of a covered damage action."
Condenser, 45 N.J. Super. at 41 (emphasis added). In support of her claim the
A-0189-21
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court erred by dismissing her declaratory judgment complaint, plaintiff relies on
cases where an insurer attempted to "repudiate[] the contract," see McNally v.
Providence Washington Ins. Co., 304 N.J. Super. 83, 89-91 (App. Div. 1997)
(insureds sought declaration of coverage due to insurer's position "the relevant
[provisions of the] policies did not cover" the claims asserted against the
insured); Caldwell Trucking PRP Grp. v. Spaulding Composites, Co., 890 F.
Supp. 1247, 1251-52 (D.N.J. 1995) (both the plaintiff and defendant-insured, in
a suit for contribution for hazardous substance contamination clean up, sought
a declaration of coverage from defendant's insurers), but those cases have no
application here because plaintiff does not allege United repudiated the liability
policy or declined coverage. Rather, it is alleged only that United has not taken
a coverage position because although it has notice of plaintiff's claim against
Forest Hill, no request for coverage from Forest Hill has been tendered.
Our decision in Manukas, 98 N.J. Super. at 523-24, does not support a
different conclusion. In Manukas, the injured plaintiff filed a direct action to
recover damages against the insurer of an alleged tortfeasor, a church, following
an award of summary judgment in the church's favor finding it not liable under
the charitable immunity statute, N.J.S.A. 2A:53-7. Ibid. The plaintiff claimed
the insurance carrier was liable under the policy to cover the damages to which
A-0189-21
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plaintiff claimed entitlement even though the church had charitable immunity
and had no liability for damages under N.J.S.A. 2A:53-7. Id. at 524.
We affirmed the trial court's summary judgment determination "there is
no liability under the policy," ibid., and explained the "plaintiff [could] not
proceed against [the insurer] until it first establishes the church's negligence and
the quantum of damages in an action against the church or to which the church
is a party," id. at 525. In dicta, we suggested the plaintiff could have commenced
a declaratory judgment action against the insurer carrier in the personal injury
action against the church or in a separate action against the insurance carrier and
church, but the issue about which we suggested plaintiff could seek a declaratory
judgment was not whether there was coverage under the insurance policy, which
included a no-action provision. Ibid.We suggested plaintiff may have sought a declaratory judgment
concerning the interpretation of N.J.S.A. 2A:53A-7, the statute upon which the
court relied in the underlying personal injury action in granting the church
summary judgment and upon which plaintiff relied in the direct action against
the insurance carrier. Ibid. There are no similar circumstances extant here—
plaintiff's declaratory judgment complaint sought a determination United owed
Forest Hill indemnification coverage—and, even if there were similar
A-0189-21
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circumstances, plaintiff never sought a declaratory judgment in an action against
United and Forest Hill.
The no-action provision in the policy, limiting direct suits against United
under the coverage provision upon which plaintiff bases its claimed entitlement
to a declaratory judgment, bars plaintiff's complaint against United because the
carrier has not "repudiated the contract [or] declined to furnish an agreed
defense," Condenser, 45 N.J. Super. at 41, but instead United has never been
requested by Forest Hill to provide coverage. Plaintiff does not allege, or cite
to any legal authority establishing, United is legally obligated to provide
coverage under a policy, or make a coverage determination, on a claim for which
the insured has decided to forego coverage. Again, that is the reason plaintiff
separately moved to compel Forest Hill to tender the claim to United; she
recognized United has no obligation to provide indemnification coverage for a
claim Forest Hill opted not to tender. The court correctly dismissed plaintiff's
complaint seeking a declaration of coverage under such circumstances;
plaintiff's cause of action for a declaratory judgment United is obligated to
provide indemnification coverage to Forest Hill is simply not ripe for
adjudication.
A-0189-21
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For the same reason, we agree with the court's conclusion plaintiff lacked
standing to prosecute the declaratory judgment against United.
"Generally . . . our State has a 'low threshold' for standing." Bondi v. Citigroup,
Inc., 423 N.J. Super. 377, 437 (App. Div. 2011) (quoting In re Six Month
Extension of N.J.A.C. 5:91-1 et seq., 372 N.J. Super. 61, 85 (App. Div. 2004)).
Standing is "define[d] broadly" and "generally will be found where the party
seeking relief has a sufficient personal stake in the controversy to assure
adverseness, and the controversy is capable of resolution by the court." State v.
Lavrik, ___ N.J. Super. ___, ___ (App. Div. 2022) (slip op. at 11).
Here, lacking a judgment against Forest Hill upon which a proper
indemnification claim against United could be based, and absent a claim
founded on the satisfaction of all the policy terms requiring indemnification,
plaintiff's declaratory judgment action against United sought relief the trial
court, based on a of lack ripeness, was incapable of providing. Ibid. Plaintiff
therefore lacked standing to prosecute her complaint for a declaratory judgment
on the issue of indemnification under the policy; again, Forest Hill, as the
insured, decided not to seek indemnification under the policy from United.
For those reasons, we affirm the court's order dismissing plaintiff's
declaratory judgment complaint against United. It is therefore unnecessary to
A-0189-21
17
address plaintiff's remaining arguments concerning the court's other reasons for
dismissing the complaint. We express no opinion as to the other arguments
raised in support of plaintiff's challenge to the dismissal order, all of which may
be renewed by plaintiff in response to any future motions filed in that matter.
We also do not address the merits of plaintiff's claim the court erred by
dismissing her claim for a declaratory judgment United is obligated to pay her
medical expenses under the "medical expense" provision of the policy.
Although we granted plaintiff leave to appeal from the portion of the order
dismissing the claim, based on our review of the record, we are not convinced it
is appropriate to review the determination on an interlocutory basis. See Vitanza
v. James, 397 N.J. Super. 516, 517 (App. Div. 2008) ("The grant of interlocutory
review is 'highly discretionary' and 'customarily exercised only sparingly.'"
(quoting State v. Reldan, 100 N.J. 187, 205 (1985))). We therefore do not
address the merits of plaintiff's challenge to the court's dismissal of her medical
expense claim. Plaintiff may appeal from the court's dismissal of the claim, and
assert any arguments supporting her challenge to the dismissal , on her appeal
following entry of the final order in the matter.
A-0189-21
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III.
We next consider plaintiff's challenge to the court's order denying her
motion to compel Forest Hill to tender a claim for coverage to United for any
damages plaintiff might recover against Forest Hill as a result of the laundry
room accident. As noted, the court denied the motion based on its limited
finding plaintiff did not have standing to assert the claim against Forest Hill.
The court's finding was founded on its adoption of the court's determination in
the declaratory judgment action that plaintiff did not have standing to assert her
claim against United. In other words, the court found plaintiff did not have
standing to assert a claim against Forest Hill because another court decided
plaintiff did not have standing to assert a claim against United.
In making its determination on that singular basis, the court did not
address or decide the merits of plaintiff's numerous other arguments, all of which
she reprises on appeal. For example, the court did not address plaintiff's claim
Forest Hill's decision not to tender a claim to United is an ultra vires act that
violates the Condominium Act's requirement that a condominium association
maintain a liability insurance policy, see N.J.S.A. 46:8B-14(e), and also violates
Forest Hill's by-laws requiring it maintain a liability insurance policy. The court
also did not address plaintiff's claim that Forest Hill's decision not to tender the
A-0189-21
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claim violates a public policy that persons injured by a condominium
association's negligence are entitled to recourse against an insurance carrier who
issues what plaintiff characterizes as mandatory liability insurance.
Similarly, the court did not make findings of fact and conclusions of law,
R. 1:7-4, addressing Forest Hill's substantive defenses to plaintiff's motion,
including its assertions the Condominium Act expressly authorizes a
condominium association to control its own defense to any claim asserted
against it, see ibid., and otherwise does not require submission of a claim to an
insurance carrier, and that its decision not to submit the claim constitutes a
proper exercise of its reasonable business judgment, see Owners of the Manor
Homes of Whittingham v. Whittingham Homeowners Ass'n, Inc., 367 N.J.
Super. 314, 322 (App. Div. 2004) (explaining the "business judgment rule").
We are therefore presented with a challenge to an order entered by the
court on a narrow and limited ground—plaintiff's purported lack of standing—
that is based on numerous other arguments the court did not consider or decide
in the first instance. We opt not to address the merits of the numerous
substantive issues presented for two reasons. First, based on its conclusion
plaintiff lacked standing, the motion court did not make the findings of fact and
conclusions of law as to the merits of the parties' numerous other substantive
A-0189-21
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arguments, see R. 1:7-4(a), and "our function as an appellate court is to review
the decision of the trial court, not to decide [a] motion tabula rasa," Est. of
Doerfler v. Fed. Ins. Co., 454 N.J. 298, 302 (App. Div. 2018).
Second, our review of the order is hampered by plaintiff's failure to
include the motion papers presented to the court. See R. 2:6-1(a)(1)(I)
(requiring the record on appeal contain all parts of the trial record "as are
essential to the proper consideration of the issues"). We have no obligation "to
attempt to review . . . an issue when the relevant portions of the record are not
included" on appeal. Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz
Donnelly Fried & Forte, P.C., 381 N.J. Super. 119, 127 (App. Div. 2005). And,
we have found appellate review of a motion order "impossible" where, as here,
an appellant "fail[s] to include in their appendix the notice of motion filed in the
trial court and whatever papers were submitted in support thereof." Soc'y Hill
Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div.
2002).
We therefore do not address or decide the merits of the numerous
arguments the parties present concerning Forest Hill's decision not to seek
A-0189-21
21
indemnification coverage from United. 4 Instead, we address only the merits of
the single issue decided by the motion court—plaintiff's purported lack of
standing—based on our conclusion the court's statement of reasons and the
parties' arguments on appeal permit a determination of that issue on the merits.
As noted, the court denied plaintiff's motion to compel Forest Hill to seek
indemnification under the United policy based on its adoption of the
determination of the court in the declaratory judgment action that plaintiff
lacked standing. As we have explained, the action for a declaratory judgment
United is obligated to provide indemnification coverage was properly dismissed
because plaintiff's claims were not ripe for adjudication and she therefore lacked
standing. See Lavrik, ___ N.J. Super. at ___ (slip op. at 11) (explaining
"standing will generally be found where the party seeking relief has sufficient
personal stake in the controversy to assure adverseness, and the controversy is
capable of resolution by the court" (emphasis added)).
Plaintiff's putative claim against Forest Hill rests on a different foundation
than her claim against United and, for that reason, her standing to assert the
4
As we explain, because we determine plaintiff has standing to challenge Forest
Hill's refusal to tender the claim to United, we remand all the other issues and
the parties' arguments for the trial court's consideration and determination in the
first instance based on a more fulsome record.
A-0189-21
22
claim against Forest Hill requires a different analysis. Unlike her putative
declaratory judgment claim against United, plaintiff's claim Forest Hill is
obligated to seek indemnification coverage from United is not subject to the no-
action provision of the policy and is not dependent on her obtaining a judgment
against Forest Hill or on her establishing all the terms of the policy have been
fully complied with. Rather, her claim is founded on the assertion that if Forest
Hill does not tender the claim to United immediately, and long prior to the return
of any verdict against Forest Hill, she will suffer the loss of the ability to recover
the proceeds of an insurance policy Forest Hill is required under the
Condominium Act and Forest Hill's by-laws to maintain in part for her benefit.
See Werrman v. Aratusa, Ltd., 266 N.J. Super. 471, 476 (App. Div. 1993)
(finding "compelling and persuasive" the reasoning "that an injured party
acquires an interest in an insurance policy which may be available to cover the
accident") (emphasis added) (quoting Eschle v. Eastern Freight Ways, Inc., 128
N.J. Super. 299, 306 (Law Div. 1974)).
Our liberal view of standing is premised on the principle that, "[i]n the
overall we have given due weight to the interests of individual justice, along
with the public interest, always bearing in mind that throughout our law we have
been sweepingly rejecting procedural frustrations in favor of 'just and
A-0189-21
23
expeditious determinations on the ultimate merits.'" Jen Elec., Inc. v. Cnty. of
Essex, 197 N.J. 627, 645 (2009) (quoting Crescent Park Tenants Ass'n v. Realty
Equities Corp., 58 N.J. 98, 107-08 (1971)). The Court explained "that principle
is premised on a core concept of New Jersey jurisprudence," specifically "that
our 'rules of procedure were not designed to create an injustice and added
complications but, on the contrary, were devised and promulgated for the
purpose of promoting reasonable uniformity in the expeditious and even
administration of justice.'" Ibid. (quoting Handelman v. Handelman, 17 N.J. 1,
10 (1954)).
Measured against these principles, we are convinced plaintiff has standing
to assert her claim Forest Hill breached a legal duty by failing to seek
indemnification coverage from United. As we have explained, she obtained an
interest in the policy at the moment she was injured, Dransfield, 5 N.J. at 194,
which could not be foreclosed by the actions of either Forest Hill or United, In
re Estate of Gardinier, 40 N.J. at 265. In our view, an injured party's interest in
a policy may also not be foreclosed by an insured's allegedly improper decision
not to timely request indemnification coverage.
An injured party's interest in the policy is that it provides a source of
recovery for the satisfaction of a judgment obtained against the insured.
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Werrman, 266 N.J. Super. at 475. That interest may be effectively forfeited by
an insured's decision not to timely tender a claim for coverage to the insurance
carrier. See, e.g., Cooper v. Gov't Emp. Ins. Co., 51 N.J. 86, 94 (1968). Thus,
depriving an injured party the opportunity to challenge the insured's decision
not to seek indemnification coverage until after a judgment is obtained against
the insured—by finding the injured party lacks standing—effectively allows the
insured to unilaterally forfeit an injured party's recognized interest in the policy.
Plaintiff has an interest in the policy and in Forest Hill's decision to risk
forfeiting plaintiff's potential recovery under the policy. She also has sufficient
adverseness to Forest Hill for standing to bring claims challenging the validity
of Forest Hill's decision not to seek indemnification coverage from United.
Lavrik, ___ N.J. Super. at ___ (slip op. at 11). Given Forest Hill's failure to
seek indemnification under the policy, and its clearly stated intention not to do
so, plaintiff faces a substantial likelihood of harm—the irretrievable loss of any
potential recovery under the policy—if she is denied standing to promptly
challenge the validity of Forest Hill's actions and decision. See In re Camden
County, 170 N.J. 439, 446-47 (2002) (explaining "[o]nly a substantial likelihood
of some harm visited upon the plaintiff in the event of an unfavorable outcome
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25
is needed for the purpose of standing") (quoting N.J. Chamber of Com. v. N.J.
Election Law Enf't Comm'n, 82 N.J. 57, 67 (1980)).
We apply the principles governing standing—"to aid justice and" to
"deprecate [the] 'procedural frustrations'"—that are undermined by the court's
determination plaintiff will not have standing to challenge Forest Hill's decision
and actions until it is too late to assure plaintiff's interest in the policy is
protected. Bondi, 423 N.J. at 436 (quoting Jen Elec., Inc., 197 N.J. at 645).
Because the court erred by denying plaintiff's motion to compel solely based on
its finding she lacked standing, we vacate the court's order denying plaintiff's
motion to compel and remand for further proceedings in accordance with this
opinion. Our remand order shall not be construed as an expression of an opinion
on the merits of plaintiff's claim she is entitled to the relief requested. "Standing
refers to the plaintiff's ability or entitlement to maintain an action before the
court," In re Baby T, 160 N.J. 332, 340 (1999) (quoting N.J. Citizen Action v.
Riviera Motel Corp., 296 N.J. Super. 402, 409 (App. Div. 1997)), and a finding
a plaintiff has standing "neither depends on nor determines the merits of a
plaintiff's claim," Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398,
417 (1991). We determine only plaintiff has standing to assert her claim
concerning Forest Hill's decision not to seek indemnification from United under
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26
the policy; the court shall address the merits of the claim Forest Hill could not
properly decide not to tender a claim based on the record and arguments
presented by the parties.
In ordering the remand, we observe plaintiff's request for relief in the
personal injury action was presented in an unusual, and in our view, incorrect
manner. Plaintiff's complaint in the personal injury action alleged only
negligence claims against Forest Hill. The complaint did not assert causes of
action alleging Forest Hill violated a legal duty—contractual or otherwise—by
deciding it would not tender a claim to United for indemnification under the
policy. See Sattelberger v. Telep, 14 N.J. 353, 363 (1954) (explaining
"[p]leading in civil actions is the means of raising issues for adjudication").
Indeed, plaintiff did not seek a declaratory judgment Forest Hill is legally
obligated to tender the claim to United in either the personal injury action or in
the declaratory judgment action she brought against United.
Nonetheless, despite the lack of any asserted cause of action against Forest
Hill seeking a declaratory judgment or other relief based on its decision not to
tender the claim, plaintiff moved for relief in the form of an order directing that
it seek indemnification coverage based on a cause or causes of action never
formally pleaded. Moreover, as plaintiff's counsel acknowledged during oral
A-0189-21
27
argument on appeal, there is no court rule that authorizes the granting of the
relief sought in plaintiff's motion to compel Forest Hill to tender the claim to
United.5
We appreciate the process—a motion to compel—employed by plaintiff
to seek the requested relief was not challenged in the motion court and has not
been challenged on appeal. We also recognize parties may "waive formal
pleading of operative facts and by consent submit an issue to the court for
determination." Sattelberger, 14 N.J. at 363. And, again, because the record on
appeal does not include the motion papers, we are unable to fully assess the
manner, and the applicable court rules under which, the substantive issues were
actually presented to the motion court. It appears, however, that regardless of
the manner in which she framed her request for relief, plaintiff's motion to
compel constituted the functional equivalent of a motion for summary judgment
5
During oral argument, plaintiff's counsel correctly noted Rule 4:10-2(b)
provides a party may obtain discovery concerning the existence and contents of
any insurance agreement under which a person or entity may be liable to satisfy
a judgment. The Rule does not authorize a court to grant a motion to compel a
person or entity to seek coverage under a policy, and, although we have not been
provided with the motion papers presented to the trial court, it does not appear
plaintiff relied on Rule 4:10-2(b) as grounds supporting its motion to compel
Forest Hill to tender an indemnification claim to United.
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on a non-pleaded claim made without compliance with the requirements of the
applicable rules. See R. 4:46-1 to -6.
In our view, to properly present the pertinent issues to the trial court, and
to create the record necessary for any future appellate review, the relief sought
by plaintiff should be founded on the assertion in a complaint of the causes of
action she contends support her request for a judgment compelling Forest Hill
to seek indemnification under the policy, with the concomitant opportunity for
Forest Hill to properly respond to the claims asserted, see Spring Motors
Distributors, Inc. v. Ford Motor Co., 191 N.J. Super. 22, 29 (App. Div. 1983),
aff'd in part rev'd in part on other grounds, 98 N.J. 555 (1985) ("To be adequate,
a pleading must contain a statement of facts on which a claim is based, showing
that the pleader is entitled to relief, and a demand for judgment for that relief"
therefore providing a defendant with the opportunity to respond fully and
properly through an answer), and with the disposition of the asserted claims in
accordance with the Rules of Court. Thus, on remand, plaintiff shall be
permitted to move to amend her complaint in the personal injury action or file a
separate complaint in a declaratory judgment action to assert whatever causes
of action she contends support her claim Forest Hill breached a legal duty by
failing to seek indemnification from United and her request for a judgment. All
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29
motions and any complaint filed shall be adjudicated in accordance with the
applicable Rules of Court.
In A-0189-21, the court's order dismissing the declaratory judgment
complaint without prejudice is AFFIRMED. In A-1002-21, the court's order
denying Forest Hill's motion to compel is REVERSED, and the matter is
REMANDED for further proceedings in accordance with this opinion. We do
not retain jurisdiction.
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