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Ollendorf v. Liberty Mutual Insurance Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 13, 2009

GLENN OLLENDORF, PLAINTIFF-APPELLANT,
v.
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division - Special Civil Part, Middlesex County, Docket No. SC-2089-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 14, 2009

Before Judges Axelrad and Lihotz.

Plaintiff Glenn Ollendorf appeals the September 18, 2007 judgment dismissing his property damage claim against Liberty Mutual Insurance Company (Liberty Mutual), the carrier for the tortfeasor who rear-ended his automobile, and the November 16, 2007 order denying reconsideration. Appellant asserts the following arguments on appeal:

A. STANDARDS GOVERNING TRIAL COURT'S DECISION AND ITS APPELLATE REVIEW

1. OPPOSITION TO PREJUDICIAL DISMISSAL HAS A PRIMA FACIE PROOF BURDEN, TO BE REVIEWED DE NOVO AND WITHOUT DEFERENCE TO JUDGE.

B. THE JUDGE'S GROSS INACCURACIES IN DESCRIBING THE RECORD

2. THE JUDGE ERRED AS TO LAW AND DUE PROCESS, BY GROSS INACCURACIES IN DESCRIBING THE RECORD.

C. ERROR TO APPLY PRECLUSIVE DOCTRINES

3. IT WAS ERROR OF LAW TO RULE THAT THE PRIOR SUIT PRECLUDED ENFORCEMENT OF A CONTRACT MADE AFTER THE PRIOR SUIT CONCLUDED.

4. THE JUDGE'S RULING, THAT THE PRIOR SUIT WOULD PRECLUDE A SUBSEQUENT SUIT FOR PROPERTY DAMAGE, IS BOTH INCORRECT AND IMMATERIAL TO THIS SUIT TO ENFORCE A SETTLEMENT AGREEMENT.

D. ERRORS AS TO MERITS

5. IT WAS ERROR OF LAW TO RULE THAT PLAINTIFF'S FORBEARANCE TO SUE WAS INSUFFICIENT CONSIDERATION FOR A SETTLEMENT AGREEMENT.

6. THE JUDGE ERRED AS TO CONTRACT LAW AND EQUAL PROTECTION, BY RULING THAT AN ORAL SETTLEMENT AGREEMENT CANNOT BE PROVEN AGAINST AN INSURER.

7. IT WAS ERROR OF LAW TO RULE THAT DEFENDANT'S UNDISCLOSED INTENT PREVENTED CONTRACT FORMATION.

8. THE JUDGE VIOLATED DUE PROCESS AND COURT RULES, BY REFUSING TO HEAR PLAINTIFF'S COMPLETE PROOFS OF CONTRACTUAL LIABILITY.

9. THE JUDGE VIOLATED DUE PROCESS AND COURT RULES, BY REFUSING TO HEAR PLAINTIFF'S UNJUST ENRICHMENT PROOFS.

10. IT WAS ABUSE OF DISCRETION TO DENY RECONSIDERATION BASED ON ERROR OF LAW.

11. IT WAS ERROR OF LAW TO DISMISS A CASE PROVEN PRIMA FACIE.

E. REMAND INSTRUCTIONS

12. BREACH OF CONTRACT REMAND ISSUES SHOULD BE LIMITED TO THE AMOUNT OF RECOVERY, SINCE THE LIABILITY DISPUTE IS NOT GENUINE.

13. UNJUST ENRICHMENT REMAND ISSUES SHOULD BE LIMITED TO THE AMOUNT OF RECOVERY, SINCE THE LIABILITY DISPUTE IS NOT GENUINE.

14. THE JUDGE'S ACTUAL OR APPARENT BIAS REQUIRES REASSIGNMENT, AS A MATTER OF DUE PROCESS, EQUAL PROTECTION, AND OTHER LAW (NO OPPORTUNITY TO RAISE AT TRIAL).

15. DUE PROCESS REQUIRES JUDICIAL REASSIGNMENT INSTEAD OF REMAND TO A KANGAROO COURT (NO OPPORTUNITY TO RAISE AT TRIAL).

F. COSTS ON APPEAL

16. DEFENSE MISCONDUCT NECESSITATED APPEAL, SO IT SHOULD PAY PLAINTIFF'S APPEAL COSTS, REGARDLESS OF PREVAILING PARTY.

We are not persuaded by any of Ollendorf's arguments and affirm substantially for the reasons articulated by Judge Gelade on the record on September 18, and November 16, 2007.

Appellant's claims arose from an October 2005 collision with Liberty Mutual's insured, during which his 1984 Nissan Maxima sustained substantial damage. On December 12, 2006, Ollendorf filed suit against Liberty Mutual and several other defendants asserting violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184 (CFA), based on Liberty Mutual's securing an estimate for the replacement value of Ollendorf's "totaled" automobile. He also sought to preserve against Liberty Mutual and its insured additional claims, including a claim for property damage to his automobile and a claim for damages for terminating a rental car.

At the close of Ollendorf's testimony on January 23, 2007, Judge LeBlon dismissed as unmeritorious the CFA claims against all defendants, and permitted all defendants to pursue sanctions under Rule 1:4-8. The court also amended Ollendorf's complaint to include all claims against Liberty Mutual, finding he had waived all other claims and was precluded under the entire controversy doctrine from filing any subsequent action against Liberty Mutual or its insured for damages arising out of the accident. The court entered an order dismissing Ollendorf's complaint with prejudice as to all defendants. With advice of counsel, Ollendorf later executed a settlement agreement and release, in which he waived his right to appeal in exchange for Liberty Mutual's waiving its right to pursue the frivolous litigation sanctions against him.

Regardless, Ollendorf thereafter initiated discussions with Liberty Mutual regarding his property damage claim, alleging he was still entitled to assert additional claims, and indicating he was prepared to file another complaint. Liberty Mutual's position remained that the property damage claim was dismissed by Judge LeBlon; however, a business decision was made to offer Ollendorf the total loss value of $1,627.10 rather than incur additional legal costs to defend against subsequent legal actions threatened by him. Liberty Mutual sent Ollendorf letters of August 10 and 27, 2007, confirming the settlement agreement for the aforementioned amount and instructing that upon receipt of the signed release enclosed in the August 10 letter it would issue him a check.

Ollendorf, however, refused to sign a release, the main reason being it contained language stating he "ha[d] been paid . . . $1,627.10 in full settlement and final discharge for the claim" when, in fact, he had not yet been given the actual check. Instead, Ollendorf filed a small claims complaint against Liberty Mutual, alleging: breach of contract entitling him to property and loss of use damages; and unjust enrichment, entitling him to $60 per day restitution for refusing to provide him a rental car following the accident.

The matter went to trial before Judge Gelade on September 18, 2007. Following testimony by Ollendorf, the court dismissed his complaint with prejudice, holding Ollendorf's claim was precluded by the former court order. The court further found there was no meeting of the minds on settlement because Ollendorf refused to sign the release, which was a condition of the settlement, and rejected the settlement by filing a lawsuit. The court denied Liberty Mutual's request for leave to file an application for sanctions for frivolous litigation.

On November 16, 2007, the court denied Ollendorf's motion to reconsider evidence rulings, finding it was, in fact, an improper motion to supplement the record. This appeal ensued.

We are satisfied Judge Gelade plainly and clearly outlined the basis for his decision as being rooted in the record supplied by both parties, as well as the letters Ollendorf himself presented at trial. Moreover, the trial judge's factual findings and legal conclusions are supported by the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474 (1974) (recognizing the limited function of an appellate court in reviewing the factual findings and legal conclusions of a trial court and holding that such determination should not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" (quoting Fagliarone v. Tp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963))).

Under the entire controversy doctrine, all aspects of a controversy between parties should, as a general matter, be included in a single action. See, e.g., Thornton v. Potamkin Chevrolet, 94 N.J. 1, 4-5 (1983). Any claims not joined as required under the entire controversy doctrine "shall result in the preclusion of the omitted claims," except in cases where leave is required in counterclaims or cross-claims in summary actions. R. 4:30A.

New Jersey requires adherence to this rule "to encourage comprehensive and conclusive litigation determinations, to avoid fragmentation of litigation, and to promote party fairness and judicial economy and efficiency . . . ." Pressler, Current N.J. Court Rules, comment 1 on R. 4:30A (2008). When examining whether a claim falls under the entire controversy doctrine, a court "must consider whether the party against whom the doctrine is sought to be invoked has had a fair and reasonable opportunity to litigate that claim." Hobart Bros. Co. v. Nat. Union Fire Ins. Co., 354 N.J. Super. 229, 241 (App. Div.), certif. denied, 175 N.J. 170 (2002). The court must also consider the possibility that a party has withheld a claim purposely to strategically obtain "two bites at the apple." Ibid. A court should not allow itself to become subject to such strategic choices as it may cause unfair results to others. Ibid.

However, the entire controversy doctrine does not bar claims that were unknown, unarisen or unaccrued at the time of the original action. Hillsborough Tp. Bd. of Educ. v. Faridy Thorne Frayta, P.C., 321 N.J. Super. 275, 283 (App. Div. 1999). Since the similarity of claims may not always be obvious, courts must make a careful analysis of all relevant factors. See id. at 285.

Ollendorf now contends his current claim for breach of contract is separate and apart from the previous litigation, emphasizing that the contract did not yet exist at the time of Judge LeBlon's determination. We disagree. Judge LeBlon was cognizant of Ollendorf's trial strategy of piecemeal claims and expressly precluded him from taking two bites of the apple, Hobart, supra, 354 N.J. Super. at 241, by entering the dismissal order. The record clearly reveals that Ollendorf attempted to engage in the settlement under threat of filing additional litigation based on an issue already rendered final. No matter how Ollendorf couched the subsequent lawsuit, its basis directly stemmed from the previously adjudicated matter, i.e., claims arising from the October 2005 accident.

That Liberty Mutual made a business decision to gratuitously pay Ollendorf his property damage, upon receipt of a duly executed release, to minimize contact and avoid anticipated future defense expenses, did not provide Ollendorf an enforceable cause of action against Liberty Mutual. There was an insufficient meeting of the minds to constitute an enforceable settlement contract due to Ollendorf's continued protests, refusal to sign Liberty Mutual's release, and his institution of suit. A valid contract is formed when the parties reach a "meeting of the minds," whereby evidence exists of a written offer and an unconditional written acceptance, supported by consideration. See Morton v. 4 Orchard Land Trust, 180 N.J. 118, 129-30 (2004); see also Smith v. SBC Commc'ns., Inc., 178 N.J. 265, 283 (2004). The balance of Ollendorf's arguments do not merit discussion. R. 2:11-3(e)(1)(E).

Affirmed.

20090213

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