On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9629-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.S. Fisher and Grall.
Plaintiff Federal Insurance Company appeals the dismissal, by way of a motion for summary judgment, of its second lawsuit against defendant American Building Company, Inc., based upon damage to buildings owned by plaintiff's insured, Langeveld Bulb Company. We find no merit in plaintiff's arguments and affirm.
The circumstances preceding the dismissal of this suit are relatively simple. Langeveld owns property in Lakewood, which was insured by plaintiff. A snowstorm on February 22, 2003 damaged two prefabricated steel structures -- what have been referred to by the parties as Buildings 2 and 3 -- on Langeveld's property. Plaintiff honored the obligations imposed by its insurance policy and paid Langeveld $3,840,160.48 to compensate it for this damage.
Plaintiff thereafter commenced an action in the Law Division in Ocean County on June 10, 2004. The complaint named American as a defendant. By way of subsequent amendments, Iorio Construction and other parties were also named as defendants. The parties engaged in extensive discovery.
Plaintiff provided a timely expert report that was limited to the damage caused to Building 2. In a deposition, plaintiff's expert confirmed that he had no opinion as to the cause of the leak in Building 3's roof, and, by the close of discovery, plaintiff had not retained an expert regarding the damage to Building 3. Iorio, however, timely served an expert report, prepared by Randy Patarcity, P.E., which made reference to the damage to Building 3.
Plaintiff later settled with Iorio and, after the close of disocvery, indicated its reliance upon Patarcity's expert report. In a series of motions, the Ocean County judge consistently refused to allow plaintiff to rely upon Patarcity's report. The remaining defendants, including American, thereafter successfully moved for summary judgment.
Plaintiff did not appeal the judgment entered in favor of American, or any other defendant, in the Ocean County matter. Instead, plaintiff filed the action at hand -- naming American as a defendant -- in the Law Division in Middlesex County on December 6, 2006. Again, plaintiff asserted the damage to Langveld's property on February 22, 2003, and again sought damages from American based upon American's alleged negligent manufacture and design of a portion of the structures. American successfully moved for summary judgment, which was memorialized in an order entered on November 2, 2007, based upon the entire controversy doctrine.
Plaintiff appeals from the November 2, 2007 order, presenting the following arguments for our consideration:
I. THE TRIAL COURT INCORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT AS THERE WERE MATERIAL FACTS IN DISPUTE AND IN VIEWING THE FACTS AS ALLEGED BY PLAINTIFF IN A LIGHT MOST FAVORABLE TO THE NON-MOVANT PLAINTIFF, DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW.
II. THE APPLICATION OF THE ENTIRE CONTROVERSY DOCTRINE WAS NOT APPROPRIATE UNDER THE FACTS OF THIS CASE.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. ...