On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County.
Approved for Publication November 19, 1996.
Before Judges King and Conley. The opinion of the court was delivered by King, P.j.a.d.
The opinion of the court was delivered by: King
The opinion of the court was delivered by KING, P.J.A.D.
This is a subrogation action by Ohio Casualty for property damages consequent upon a bailment of Barry C. DiGiacinto's Toyota to a dealer for repairs. This case implicates the entire controversy doctrine, particularly as a result of Prevratil v. Mohr, 145 N.J. 180, 678 A.2d 243 (1996), decided on July 10, 1996, in the wake of the quartet of cases in the same vein decided on August 1, 1995. See DiTrolio v. Antiles, 142 N.J. 253, 662 A.2d 494 (1995); Circle Chevrolet Co. v. Giordano, Halleran & Ciesla, 142 N.J. 280, 662 A.2d 509 (1995); Mystic Isle Development Corp. v. Perskie & Nehmad, 142 N.J. 310, 662 A.2d 523 (1995); Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co., 142 N.J. 336, 662 A.2d 536 (1995).
This case arises from a claim by DiGiacinto for property damage, which occurred while his vehicle was in the custody of defendant Meadowlands Toyota (Meadowlands) for repairs. The damage came from severe flooding at Meadowlands' property in Bergen County on December 11, 1992.
DiGiacinto filed a pro se complaint against Meadowlands in the Bergen County Special Civil Part on March 8, 1993. Judge Koblitz conducted a trial on liability and damages on March 29, 1993 and entered a judgment in DiGiacinto's favor for $60. Meadowlands was represented at the trial by its present counsel.
On December 22, 1994 Ohio Casualty as subrogee of DiGiacinto sued Meadowlands for its net subrogation loss of $5,035.50, not including the insured's $500 deductible. Ohio Casualty paid DiGiacinto $8,135 less the deductible for his casualty loss and realized $3,100.50 in salvage recovery. Meadowlands moved on June 12, 1995 to dismiss Ohio Casualty's action on the ground of the entire-controversy doctrine. Judge Austin denied the motion to dismiss on July 28, 1995. On November 13, 1995 Ohio Casualty moved for summary judgment on both liability and damages; this was granted on December 15, 1995.
Meadowlands raises two points on this appeal:
POINT I - OHIO CASUALTY'S SUBROGATION ACTION COMMENCED AFTER THEIR INSURED HAS CONCLUDED A PRIOR ACTION AGAINST THE SAME DEFENDANT ARISING OUT OF THE SAME INCIDENT IS BARRED BY THE ENTIRE CONTROVERSY DOCTRINE.
POINT II - THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO DAMAGES WHERE A FACTUAL ISSUE EXISTED AS TO THE AMOUNT OF THE PLAINTIFF'S LOSS.
We disagree with the first ground but agree with the second. We affirm on defendant's liability but remand for a trial on damages only.
At the trial in the Special Civil part, Judge Koblitz ruled that Meadowlands failed to exercise due care during the course of the bailment in view of the forecast of upcoming severe weather. She found that DiGiacinto's damages were limited to $60 for personal property damages or personal losses (a "Club" and the service cost for cancelling an extended warranty). Meadowlands and its liability carrier, Universal Underwriters, claim that it had no actual notice of Ohio Casualty's subrogation interest until July 1, 1993, several months after the Conclusion of the trial before Judge Koblitz.
We reject Meadowlands' attempt to defeat Ohio Casualty's subrogation claim for $5,035 on entire-controversy doctrine grounds as basically unfair. The first action was brought by DiGiacinto alone, not by Ohio Casualty. He asked for general damages of $1,500. There is no suggestion in the record that Ohio Casualty either knew about the first action or in anyway participated in it. We are certain it did not. Clearly, Ohio Casualty's $5,035 subrogated property-damage loss was not advanced in that action in any fashion. At that trial, DiGiacinto told the Judge and Meadowlands' counsel (the same counsel as on this appeal) that "my insurance carrier totaled the car" and that he collected a total loss value from Ohio Casualty, aside ...