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Hall v. Michael Bello Insurance Agency

June 13, 2005

SCOTT HALL AND LORA HALL, PLAINTIFFS-APPELLANTS,
v.
MICHAEL BELLO INSURANCE AGENCY, INC., DEFENDANT, THIRD-PARTY PLAINTIFF-RESPONDENT, AND WILL FRASSE, DEFENDANT, THIRD-PARTY PLAINTIFF,
v.
HIGHLANDS INSURANCE COMPANY, DEFENDANT, THIRD-PARTY DEFENDANT-RESPONDENT, AND CHASE MANHATTAN MORTGAGE CORPORATION, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, L-2485-02.

The opinion of the court was delivered by: Payne, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 16, 2005

Before Judges Wefing, Fall and Payne.

Plaintiffs Scott and Lora Hall owned a home in Mountain Lakes that, in May 2002, sustained fire damage. They made a claim through their insurance broker, the Michael Bello Insurance Agency, but learned that homeowners insurance coverage bound and thought to have been placed by the Bello Agency with Highlands Insurance Company allegedly had never become effective because Highlands claimed it had never received the insurance application and policy premium payment. Additionally Highlands asserted that the binder issued by the Bello Agency to the Halls was ineffective because the Agency had exceeded the monetary limits of its binding authority under its agency agreement with Highlands.*fn1 Suit was accordingly filed by the Halls against the Bello Agency, the agent writing the coverage, Will Frasse, and Chase Manhattan Mortgage Corporation, which they alleged, negligently failed to notify them that there was no hazard insurance in force that covered their mortgaged home and its contents. Thereafter, on December 2, 2002, the Bello Agency and Frasse filed a third-party complaint against Highlands, and Highlands was made a direct defendant by the Halls in an amended complaint filed on January 14, 2003.

However, in accordance with the request of the State of Texas, by order dated November 6, 2003 and entered pursuant to Tex. Ins. Code Ann. art. 21.28, Highlands, a Texas domiciliary, was placed in receivership by the District Court of Travis County, Texas,*fn2 the Commissioner of Insurance of the State of Texas was appointed Receiver,*fn3 and a permanent injunction was imposed on actions contrary to the Receiver's direction. Among other things, the November 6 order barred policyholders and claimants asserting claims or causes of action against Highlands from "[m]aking any claim, charge or offset, or commencing or prosecuting any action, appeal, or arbitration, including administrative proceedings, or obtaining any preference, judgment, attachment, garnishment or other lien, or making any levy against" Highlands, Highland's property or the Receiver except as permitted by Tex. Ins. Code Ann. art. 21.28.

The Texas court's order was filed by New Jersey counsel for Prime TEMPUS, Inc., the Special Deputy Receiver for Highlands, in the Superior Court of New Jersey on April 1, 2004 pursuant to the Uniform Enforcement of Foreign Judgments Act (UEFJA), N.J.S.A. 2A:49A-25 to -33. See also Tex. Civ. Prac. & Rem. Code Ann. art. 35.001 to .008. Highlands, relying on the Texas order, thereupon moved for a stay of the actions against it asserted in the Hall matter, and its motion was granted.

However, in accordance with the procedures that we set forth in Aly v. E.S. Sutton Realty, 360 N.J. Super. 214, 230-233 (App. Div. 2003), the judge authorized the Halls to move before the Presiding Judge of the Civil Part to vacate the stay on grounds of hardship. The Halls sought such relief, but it was denied by the court, which found that the Halls had not demonstrated hardship sufficient to warrant that extraordinary remedy. The Halls then moved before us for leave to appeal, which we granted.

On appeal, the Halls present the following arguments:

POINT I

THE STAY ORDER SHOULD BE VACATED TO AVOID THE POSSIBILITY OF INCONSISTENT VERDICTS, TO AVOID A WASTE OF JUDICIAL RESOURCES AND IN THE INTERESTS OF FAIRNESS.

POINT II

NEITHER FULL FAITH AND CREDIT NOR COMITY REQUIRES ENFORCEMENT OF ...


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