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Lancos v. Silverman

May 14, 2008

KIMBERLY A. LANCOS, MARY ANN MCGINLEY, CYNTHIA SPEKHART, KEVIN SALVATORE, BRIDGETTE HINTZEN, WILLIAM MCGRATH, WALTER STUBBS, JOANNE GRADY, MARY MAFFEI, CYNTHIA O'HAGAN, KATHLEEN M. DEIGNAN, THOMAS NEBELING, EILEEN KANE, ROBERT DUKIE, MARTHA OWENS, JENNIFER NELSON, PLAINTIFFS,
v.
MALCOLM SILVERMAN, MYRON SILVERMAN, MARC LYDON, DIANE TURTON REALTORS, KAREN HEWSTON AS AGENT SERVANT OR EMPLOYEE OF DIANE TURTON REALTORS, ANDREA ROGAN, BETH FINEBERG, BRIAN FITTER, CHRIS MORRIS, CHRISTINE REIDIGNER, EDEN KIDNER, ERIC REIDIGNER, HEIDI PARKER, JAMIE CUTLER, JENIN CERLIGIONE, JERI DEL VECCHIO, JEREMY COYLE, JOHN DEROSE, JULIE ROGAN, KAREN ROSENTHAL, KELLY O'LEARY, LIZ GALIARDO, MIKE HERRIGHTY, PETER BADGER, RYAN FITZPATRICK, THERESA FABIA, TRACEY SALVO, VICTORIA L. AUDENREID, SAMMY O'CONNOR, JOE DANIELS A/K/A JOSEPH DANIELS, CATHY RUSSO, MARLAINE WADE, MACELON D'SA, BOROUGH OF POINT PLEASANT BEACH, COMEDY CENTRAL, AND MALMY, LLC, DEFENDANTS.
MARC LYDON, THIRD-PARTY PLAINTIFF,
v.
MYRON SILVERMAN, MALCOLM SILVERMAN, DIANE TURTON REALTORS, KAREN HEWSTON AS AGENT SERVANT OR EMPLOYEE OF DIANE TURTON REALTORS, THIRD-PARTY DEFENDANTS.
MYRON SILVERMAN AND MALCOLM SILVERMAN, FOURTH-PARTY*FN1 PLAINTIFFS-APPELLANTS,
v.
YORK-JERSEY UNDERWRITERS, FOURTH-PARTY DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1332-04.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 14, 2008

Before Judges Lintner, Graves and Sabatino.

This appeal arises from the collapse of an outdoor deck at a leased beachfront house during a party on July 6, 2002, in which eighteen individuals were injured. Sixteen*fn2 people filed personal injury claims against several defendants, including the owners of the beach house, Myron and Malcolm Silverman. At the time of the collapse, the house, which was insured for fire, extended coverage, and vandalism, did not have personal liability insurance protection. Myron and Malcolm Silverman*fn3 filed a fourth-party complaint, asserting professional negligence against their insurance broker, York-Jersey Underwriters (York). A three-day jury trial took place.

Prior to deliberations, the jury was given the following written interrogatories:

1. Have the Plaintiffs proven by a preponderance of the credible evidence that the Defendant-Insurance Broker was negligent in the procurement of insurance for the Plaintiff[s]?

Yes ____ or No ____

If your answer is no, proceed no further and return your verdict. If your answer is yes, proceed to question no. 2.

2. Have the Plaintiffs proven by a preponderance of the credible evidence that any loss that they may suffer as a result of the claim presented against them was a proximate result of the negligence of the Defendant?

Yes ____ or No ____

Eventually, the jury advised the judge that it could not reach a verdict on the first question because four of its members voted "yes" and two voted "no." It informed the judge, however, that it had had a unanimous verdict of the second question with all six voting "no." The judge discharged the jury and advised counsel to brief the issue and move for either a mistrial or entry of judgment.

Following oral argument on the parties' cross-motions for judgment, the judge issued a letter opinion on May 2, 2006, and entered a judgment of no cause for action in favor of York, based upon the jury's unanimous determination that there existed no proximate cause. He denied plaintiffs' motion for judgment, noting that they had not moved for judgment during the trial. Following settlement of the underlying action, plaintiffs filed their notice of appeal. Plaintiffs raise several issues, one being the validity of the incomplete verdict, which has not previously been decided by our court. We hold that, although the verdict was incomplete, it nevertheless was valid. We also reject the remaining issue raised by plaintiffs and affirm the judgment as entered.

The following relevant facts were adduced at trial.

Ann Silverman Soled, plaintiffs' mother, owned the Point Pleasant property until her death in 1990. Soled had procured homeowner's insurance, covering both the physical property and personal liability, through York. On December 6, 1990, the attorney representing plaintiffs and their brother Frederick, as executors of Soled's estate, contacted York with instructions to transfer "all existing insurance policies" to the Estate. In 1992, Myron and Malcolm acquired the property from the Estate, buying out their brother's interest.

Plaintiffs maintained the existing insurance coverage on the property until 1992 when Myron cancelled the CIGNA policy that had been issued to the Estate. York then procured a new homeowner's insurance policy covering both the physical property and personal liability from The Hartford Fire Insurance Company (Hartford), naming Myron and Malcolm as insureds.

The policy was renewed for subsequent annual terms until, on April 10, 1997, Hartford mailed a notice of non-renewal to Myron and York, advising that the policy would not be renewed and that all coverage would be terminated as of May 20, 1997. At that point in time, the licensed insurance broker assigned to plaintiffs' York account was Marilyn Raven. The non-renewal notice, which Myron could not remember receiving, stated:

As your agent has probably informed you, your above numbered policy will not be renewed in this company beyond the Policy Expiration Date stated above and will terminate on said Date. We regret any inconvenience that this might cause you, but we suggest that you contact your agent in order to arrange for replacement insurance as of ...


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