Winzinger, a demolition and excavation contractor, rented a 200-ton crane from Brennan Brothers, Inc. with which to perform a contract for the removal of a bridge over Newark Bay. On September 30, 1981, the day the job commenced, the crane caught fire and was damaged substantially. It was insured by Ideal Mutual Insurance Company.
On November 20, 1981, Ideal, as subrogee, filed a complaint concerning the fire loss against Winzinger in the Superior Court, Law Division, Union County. No summons was issued until February 23, 1983. Ideal had not paid any monies to Brennan Brothers at the time the complaint was filed and did not make
any payments until after Winzinger's Burlington County action was filed.
Winzinger having itself suffered losses as a result of the fire damage to the crane, brought suit against Brennan Brothers in the Superior Court, laying the venue in Burlington County. This suit was commenced on April 7, 1982. Service of the summons and complaint was made on April 19, 1982. Winzinger, in a motion addressed to the Burlington County Assignment Judge, now requests dismissal of the Ideal complaint or consolidation of both actions in Burlington County. Ideal and Brennan Brothers oppose the application.
R. 4:4-1 requires the issuance of a summons within 10 days of the filing of a complaint, absent which the action may be dismissed pursuant to R. 4:37-2(a). It invites a motion only in the County in which venue is laid -- Union County. The Burlington County courts have no jurisdiction over that issue, although it plays a role, indirectly, in connection with my determination of the consolidation motion.
Actions in the Superior Court. When actions involving a common question of law or fact arising out of the same transaction or series of transactions are pending in the Superior Court, the court on a party's or its own motion may order the actions consolidated. If the actions are not triable in the same county or vicinage, the order shall be made by the Assignment Judge of the county in which the venue is laid in the action first instituted on motion, his own initiative, or on certification of the matter to him by a judge of the Law or Chancery Division. (Emphasis supplied.)
The interpretation of this Rule controls the disposition of the motion.
The filing of Ideal's complaint preceded Winzinger's filing by many months. It is therefore argued that the consolidation application could be made only to the Assignment Judge of Union County, "the county in which the venue is laid and the action first instituted. . . ." The peculiar circumstances of the present case, however, lead me to an opposite conclusion.
Ideal did not have a subrogation claim at the time it filed its complaint because it had not ...