On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5289-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Messano.
Defendant, third-party plaintiff, Denis Christopher Guerin, an attorney-at-law admitted to practice in New York, appeals from two orders entered April 27, 2007, that 1) denied his motion for summary judgment; and 2) entered summary judgment in favor of third-party defendant Liberty Insurance Underwriters, Inc. (Liberty) and dismissed defendant's complaint for declaratory relief. Defendant argues that the motion judge erred by concluding that the professional malpractice insurance policy Liberty issued to him should be construed in accordance with New York law; that a proper application of choice-of-law principles required the policy to be construed in accordance with New Jersey's law; and, therefore defendant is entitled to defense and indemnification from Liberty. We have considered these contentions in light of the record and applicable legal standards. We affirm.
The case has its genesis in a construction accident that occurred on July 21, 2001. Plaintiff Andrezej Jaworowski sustained serious injuries when a scaffold he was working on collapsed at a construction site in Jersey City, on property owned by Bob Ciasulli Honda, Inc., a New Jersey corporation, or by its principal, Robert Ciasulli, a resident of Kinnelon (collectively, Ciasulli). Plaintiff resided in Brooklyn, New York, and was employed by Semar, Inc. (Semar), a New Jersey corporation located in Wallington. Semar, a subcontractor to general contractor R.P. Richards & Son (Richards), a New Jersey corporation with its principal place of business in Verona, performed masonry work at the Ciasulli construction site.
Plaintiff retained defendant to represent him after his accident. Defendant is admitted to practice law in the state of New York and maintains offices in Manhattan at 19 West 44th Street. On January 31, 2003, defendant filed suit against Ciasulli and Richards in the Supreme Court of New York, Kings County. On September 26, 2003, defendant filed a similar complaint in federal District Court for the Eastern District of New York alleging diversity jurisdiction. On January 26, 2004, the District Court transferred its case to the federal District Court for the District of New Jersey, and on May 4, 2004, the New York Supreme Court action was "discontinued" without prejudice by stipulation of the parties. Upon transfer of plaintiff's case to New Jersey, Dennis S. Brotman, an attorney admitted to practice in New Jersey, substituted for defendant as counsel for plaintiff.
On May 28, 2004, Ciasulli moved in the District Court to dismiss plaintiff's complaint asserting it was first filed in federal court after the expiration of New Jersey's applicable two-year statute of limitations for personal injury claims. On January 10, 2005, Judge Harold A. Ackerman dismissed the complaint finding that plaintiff's claim was time-barred.*fn1
Brotman, concluding that defendant may have committed legal malpractice by failing to timely file suit in New Jersey, filed this action on October 20, 2005. Defendant in turn filed his answer on December 21, 2005, and asserted a third-party claim for defense and indemnification under his professional liability insurance policy issued by Liberty.
Meanwhile, Brotman appealed the dismissal of plaintiff's personal injury lawsuit to the Third Circuit Court of Appeals, and on June 18, 2007, that court reversed Judge Ackerman's order, finding that the running of the statute of limitations might be equitably tolled under the facts presented. That Court remanded the matter to Judge Ackerman for further proceedings. Jaworowski v. Ciasulli, 490 F.3d 331 (3d Cir. 2007).*fn2
The facts adduced during discovery in the declaratory judgment aspect of the case are essentially undisputed. Defendant's "New York Lawyers Professional Liability Policy" was effective from January 25, 2005, to January 25, 2006 (the policy).*fn3 Pursuant to the face sheet of the policy, Liberty's home address is listed as New York City, and JLT Services Corporation, the producer of the policy, lists an office address in Latham, New ...