On appeal from the Superior Court of New Jersey, Law Division, Bergen County, whose opinion is reported as Battista v. Western World Ins. Co., Inc., 227 N.J. Super. 135 (Law Div. 1988).
Michels, Brody and D'Annunzio.
[250 NJSuper Page 332] In these appeals, which we now consolidate, plaintiff Katherine Battista, Administratrix ad Prosequendum of the Estate of her son, William Nicholas Battista III (William), deceased, and individually and as assignee of Paul Olson, appeals (1) from portions of an order of the Law Division that (a) declared that a $1,000,000 settlement of her punitive damages claim under an agreement that released defendant Paul Olson (Olson) from any responsibility to pay the settlement and permitted her to sue and collect the amount thereof from available insurance was unreasonable and unenforceable and (b) ordered a new trial on the issue of punitive damages; (2) from a final judgment of the Law Division that dismissed her claim for punitive damages with prejudice for failure to present witnesses or produce evidence at the scheduled date for trial and (3) from a post-judgment order of the Law Division that denied her application for counsel fees and costs. Defendant Western World Insurance
Company, Inc. (Western World) cross-appeals from a portion of the order that declared that it was estopped from denying coverage for the punitive damages claim asserted by plaintiff against Olson. Defendant Borough of Leonia (Leonia) cross-appeals from a portion of the post-judgment order that required it to pay counsel fees of $7,500 to John R. Altieri, Esq. for the services he rendered to Olson in this matter. Finally, Olson cross-appeals from a portion of the original judgment entered in 1984 that awarded punitive damages against him.
The procedural history giving rise to these appeals and cross-appeals is recounted by us in Battista v. Olson, 213 N.J. Super. 137, 516 A.2d 1117 (App.Div.1986) and by the trial court in Battista v. Western World Ins. Co., Inc., 227 N.J. Super. 135, 545 A.2d 841 (Law Div.1988) and need not be fully reported here. By way of background, plaintiff instituted this wrongful death action seeking (1) compensatory damages against Leonia; (2) compensatory and punitive damages against Leonia police officers Olson and defendants Carmey Cross and Todd Cieslak and (3) compensatory damages against defendants John Crawbuck, Marion Crawbuck and George Crawbuck. Plaintiff alleged that William's death resulted from defendants' negligent failure to summon medical assistance despite having a duty to aid and knowledge of his perilous condition. Following a lengthy trial, the jury found Leonia, Cieslak, Olson and John Crawbuck negligent but determined that proximate causation was not established with respect to John Crawbuck. The jury thereupon apportioned 33% of the fault for William's death to Leonia, 17% to Cieslak and 50% to Olson and awarded compensatory damages of $60,000. In addition, the jury found that Olson's conduct was intentional, willful, wanton and malicious and accordingly, assessed punitive damages of $1,000,000 against him.
The trial court ordered a remittitur of the jury's $1,000,000 punitive damages award to $75,000, finding that the verdict could not stand because it was "outrageously high." Plaintiff refused to accept the $75,000, and the trial court scheduled the
matter for a new trial solely as to the amount of punitive damages. Before the punitive damages trial, plaintiff and Olson settled the punitive damages claim for $1,000,000.
The terms of the settlement released Olson from any personal responsibility to pay the $1,000,000 and permitted plaintiff to collect from any available insurance covering Olson. Olson agreed to institute an action against Western World, Leonia and defendants The Aetna Casualty and Surety Company, Inc. (Aetna) and the law firm of Lieb, Berlin and Kaplan, naming plaintiff as a party defendant. Thereafter, Olson instituted an indemnification action against Western World. In addition, Olson sued Western World and Aetna for damages for emotional distress and Leonia for counsel fees and indemnification under the Policeman's Benevolent Association (P.B.A.) Agreement between Leonia and its police officers. Following a case management conference, plaintiff replaced Olson as the party in the action, and Olson assigned all of his rights in the action to plaintiff. Olson abandoned all personal injury claims and agreed that his attorney would represent plaintiff in pursuing her interest, as well as his interest, in the indemnification action.
The matter came on for trial, and after extensive testimony, the trial court held that Western World was estopped from denying Olson coverage for plaintiff's punitive damages claim. However, the trial court held that although Western World was estopped from denying coverage for the punitive damages claim, "estoppel cannot serve to make it responsible to pay damages in an amount that would never have been considered by the parties were the insurance company the responsible entity." Accordingly, the trial court declared the settlement unreasonable and unenforceable and scheduled the matter for a new trial only as to the amount of punitive damages against Western World. The trial court also awarded John R. Altieri, Esq. counsel fees of $15,000 and assessed the award equally against Western World and Leonia. See Battista v. Western World Ins. Co., Inc., 227 N.J. Super. at 148-52, 545 A.2d 841.
During the new trial as to punitive damages against Western World, plaintiff's attorney advised the trial court that he did not intend to produce any witnesses or to seek a ruling as to the admissibility of prior transcript testimony in lieu of the production of witnesses. The trial court informed counsel before trial that the prior testimony could be admitted in evidence if the witnesses were no longer available. Since plaintiff refused to present any ...