On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication May 5, 1995.
Before Judges Petrella, Havey and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
Plaintiff Norbert M. Roman is a judgment creditor of defendant American Fire & Marine Insurance Co., a foreign corporation, by virtue of a default judgment for $103,233.82, including post-judgment interest and costs, which was entered in his favor in the New Jersey Superior Court on June 17, 1994. Plaintiff's New Jersey judgment is based on a default judgment entered in a Florida court on July 22, 1993. Mr. Roman's underlying claim against American Fire & Marine Insurance Co. arose from its failure to indemnify him for the loss of a boat which it had insured pursuant to a marine insurance policy purchased through a third-party insurance broker, intervenor-respondent Marine Marketing Services, Inc., a New Jersey corporation.
Respondent was not a party to the Florida action. It has intervened in the present action only in order to oppose an order for discovery and to enjoin execution on property in its possession.
The writ of execution to which respondent objects was issued by the Law Division on August 3, 1994 to satisfy the New Jersey judgment. It directs the sheriff of the appropriate county to "satisfy the said judgment out of the rights and credits, and/or personal property of the said judgment debtor . . . ." See R. 4:59-1; N.J.S.A. 2A:1-57 et seq. Plaintiff also filed a "petition for discovery," alleging upon information and belief that "Marine Marketing Services . . . is an insurance broker that markets Defendant's marine insurance policies and collects insurance premiums on behalf of the defendant."
Plaintiff also sought an order requiring the president of Marine Marketing Services "to appear and make discovery upon oath, concerning the rights and credits and/or other property and things of the defendant in the possession or control of Marine Marketing Services, Inc. . . . ," and to bring with him records relating to their financial and marketing arrangements, insurance policies issued and premiums collected for defendant, bank accounts in which those premiums have been deposited, and other information. The court ordered the discovery which plaintiff requested.
Marine Marketing Services, Inc. responded by seeking an order to show cause to stay both discovery and execution. To support its application for the order to show cause, it relied on a certification of its attorney alleging that his client had informed him that collection of the documents and other information requested by the discovery order would be unreasonably onerous. The affidavit also states:
Additionally, my client has expressed tremendous concern over the Plaintiff's declared intention to attach all premiums collected by Marine Marketing for policies issued by American Fire & Marine. The disclosure that the requisite portion of the premium was not being escrowed for insurance protection but, rather was being intercepted and levied upon by the Office of the Sheriff would certainly destroy my client's business. I have also advised my client that there may be an objection to such a levy, since a paid premium does not at the point of tender instantaneously become an asset of the corporation and, therefore, would not be ripe for adverse execution. Rather, it is my understanding that such a levy would deprive the policyholder of the coverage triggered by their premium payment. Again, it is submitted that these monies must be escrowed on behalf of the policyholder.
Respondent's counsel has not explained the basis for his stated "understanding" that paid premiums are not ripe for adverse execution and that an execution against funds in its possession payable to American Fire & Marine Insurance will deprive other policyholders of their coverage.
Relying on plaintiff's petition for discovery, the certification of respondent's attorney, and the arguments of counsel, the Law Division entered an order which "stayed" the discovery order previously issued by another Law Division Judge and "permanently enjoined [plaintiff] from enforcing the Writ of Execution which the plaintiff filed against Marine marketing Services, Inc. . . . or from otherwise levying on any or all insurance premiums collected by Marine Marketing Services, Inc. on behalf of the Defendant American Fire & Marine Insurance Co." The order also temporarily restrained respondent Marine Marketing Services from dissipating or transferring any net premiums collected for defendant, but that restraint expired in accordance with its terms before argument of this appeal. Plaintiff applied to this court to continue the restraint pending appeal, but another part of our court denied that application. At oral argument, we re-imposed the restraint, and we subsequently confirmed our direction by a written order which remains in effect. See N.J.S.A. 2A:17-65. *fn1
On appeal, plaintiff argues that the Law Division erred both by denying discovery and ...