Yanoff, J.s.c. (temporarily assigned) (Retired, on recall).
This matter comes before the court on a motion for an order enforcing a disputed settlement agreement. The facts follow:
On November 15, 1990, Mrs. Brenda Smith was injured by a ceiling fall in a building owned by defendant, Cynfax Corporation ("Cynfax"). She immediately retained Floyd C. Goldsman, Esq., who commenced suit.
In January 1992 Mr. Goldsman ascertained that Cynfax was insured by Cumberland Mutual Fire Insurance Company ("Cumberland"). Negotiations began, and on February 4, 1992,
Cumberland made a $7,000 settlement offer. Mr. Goldsman contacted the Smith home to notify his client of the offer. He was then made aware that Brenda Smith had died on February 2, 1992, from causes unconnected with this lawsuit.
May 22, 1992, Archie Bolden, husband of the deceased, was appointed the administrator of the estate. Mr. Bolden authorized Mr. Goldsman to accept Cumberland's settlement offer on behalf of the estate of decedent.
Mr. Goldsman forwarded on June 3, 1992, to Cumberland a release and stipulation of dismissal, along with proof of Bolden's appointment as administrator. Cumberland responded with a letter dated June 11, 1992, requesting a copy of Mrs. Smith's death certificate, which Mr. Goldsman promptly provided. Thereupon, in a letter dated July 21, 1992, Cumberland advised Mr. Goldsman that they did not feel bound by any settlement agreement because of Mr. Goldsman's failure to inform them of Mrs. Smith's death.
The Smith estate now moves to enforce the settlement. Cumberland opposes the motion, emphasizing that the alleged agreement is unenforceable due to a mutual mistake regarding a material fact, namely, the erroneous belief that the plaintiff was still alive at the time of the settlement offer. In reply, the estate posits that Cumberland's letter of June 11, 1992 merely requesting a copy of the death certificate, demonstrated Cumberland's intention not to revoke their offer, but, rather, to extend it to Mrs. Smith's estate. In words of counsel for the estate, "This conduct constituted an implied waiver of any right of revocation of the settlement agreement and a reaffirmation of said offer to the administrator of the plaintiff's estate, which was duly accepted."
Defendant's assertion of mutual mistake merits Discussion. The Appellate Division has held that a settlement is voidable by the disadvantaged party when there has been a mutual mistake "as to a basic assumption on which the contract was made[.]", Lampley v. Davis Mach. Corp., 219 N.J. Super. 540, 549, 530
A.2d 1254 (App.Div.1987). "Mutual mistake" is not a reason for ruling in favor of defendant because no contract came into being to which that doctrine could apply. There are other reasons for ruling in favor of defendant.
Executors and administrators "may have an action for any trespass done to the person . . . of their . . . intestate against their trespasser and recover their damages as their intestate would have had if he was living." N.J.S.A. 2A:15-3. Whether the statute means that the representative of decedent has a new cause of action, as the Vice Chancellor says in Prudential Insurance Co. v. Laval, 131 N.J. Eq. 23 at 29, 23 A.2d 908 (Ch.1942) or the same cause of action is simply transferred to the personal representative (DeHerrera v. Herrera, Wyo., 565 P.2d 479, 482 (1977); Barragan v. Superior Court of Pima County, 12 ...