On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-7244-03.
The opinion of the court was delivered by: A. A. RODRÍGUEZ, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Sabatino and Lyons.
This is an appeal brought by an insurer for a declaratory judgment. Three lawsuits arose from one fatal automobile accident. Discussion of the three lawsuits, as well as the facts, is necessary for an understanding of the issues on appeal.
Early in the morning on July 22, 1996, decedent, David P. Steiger, was involved in a one-car accident on the New Jersey Turnpike. At the time, decedent was driving a 1994 Saab 9000, which was owned by decedent's employer, Sellinger and Sellinger, P.A. (Sellinger) and afforded Uninsured Motorist (UM) coverage pursuant to a policy issued by Commercial Insurance Company of Newark (Commercial). According to the police report, eyewitnesses Donald and Karen Goodman, reported that the decedent was preparing to exit the Turnpike at Exit 6. The Saab crossed over from the westbound lanes into the eastbound lanes and struck a tollbooth designated for traffic entering the Turnpike. The Saab flipped over and the airbag deployed. Decedent was pronounced dead shortly thereafter.
Mary Steiger, individually and as executrix of decedent's Estate (collectively "Estate"), sued Saab Scancia, Inc. on a "crashworthiness" product liability theory. The Sellinger firm represented the Estate in the Saab action, which was venued in Bergen County.*fn1
In October 2000, while the Saab action was pending, the Estate filed a verified complaint in Passaic County demanding that Commercial submit to UM arbitration. The Estate was represented in the UM action by Dennis G. Polizzi, Esq. Judge Scancarella entered an order on October 20, 2000, compelling UM arbitration. Commercial demanded discovery from the Estate and subpoenaed records from the Estate's attorney in the Saab action. Several months later, Commercial received a package of discovery from the Saab action. According to Commercial, nothing in that discovery suggested the existence of a UM claim.
Polizzi eventually provided discovery responses for the UM action, which included an expert report from Michael G. Natoli opining that the accident was caused by a "phantom vehicle." This was based on the existence of a paint transfer on the Saab.
In July 2002, the Saab lawsuit was settled. The Estate did not obtain Commercial's consent prior to settling the Saab litigation.
Commercial filed this declaratory judgment action in Bergen County to bar the Estate's claim for UM benefits. In addition, Commercial sued Natoli alleging material misrepresentation and sought a set-off from Saab.*fn2
On January 30, 2004, the Estate answered and asserted a counterclaim alleging that Commercial "attempted to coerce and/or influence [Natoli] by filing suit directly against [him] seeking compensatory damages . . . even though [Natoli] is not in privity of contract with [Commercial]."
In the interim, the Estate moved in Passaic County to enforce the order compelling UM arbitration. Judge Scancarella denied the Estate's motion ...