On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket Nos. L-3797-06 and L-4003-07.
The opinion of the court was delivered by: Carchman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Sabatino and Simonelli.
In these appeals, which we consolidate, we consider the terms necessary in a settlement agreement to allow the parties to seek reinstatement of the matter to the trial list after a default in the terms of the settlement. Here, the parties agreed that a default would permit the non-defaulting party to move before a court to reduce the outstanding amounts owed to judgment. Despite the absence of any language suggesting potential rescission of the agreement and restoration of the matter to the trial list, the motion judge found that the entry of judgment was not an exclusive remedy. He then vacated the settlement and restored the case to the trial list.
We now reverse and hold that settling parties who agree on a remedy of rescission and leave to restore a settled matter to the trial list upon default must include specific language preserving that remedy within the terms of the settlement agreement. Ultimately, the determination of whether the matter will be so restored rests within the discretion of the motion judge, but the right to seek leave for such relief should be explicitly preserved in the agreement.
These facts inform our opinion. Plaintiffs Jagjit Kaur and Abhilasha Singh filed separate actions under New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, against their employers, defendants Assured Lending Corp. (Assured), Moin Ali and Alex Senderov. This suit alleged that Ali and Senderov sexually and ethnically harassed plaintiffs during their employment with Assured. An answer was filed on behalf of all defendants. Assured's insurance carrier filed a limited substitution of attorney for Assured for "those allegations of the complaint seeking compensatory damages as the result of bodily injury."
The cases were consolidated for mediation and as a result of the mediation, the parties settled their respective actions. After extensive negotiations, the settlement was reduced to writing. Under the terms of the settlement each plaintiff was to receive $50,000. With regard to plaintiff Kaur, $10,000 was to be paid on or before March 12, 2008 by Assured's carrier as its sole contribution to the settlement. A separate payment of $5000 from Assured was due to the Kaur's attorney on March 12, 2008. Thereafter, two more installment payments from Assured were to be received by the attorney no later than May 12, 2008. Similar terms were agreed to as to plaintiff Singh.
The agreement contained other provisions related to enforcement and default relevant to our inquiry. Paragraph IV of the agreement provides:
Any party may enforce any term or section of this Agreement, or may attempt to enforce an alleged breach of any duty related herein, by bringing an action in any court of competent jurisdiction in the State of New Jersey. Each party shall bear his/her own burdens, and shall bear all of his/her legal fees and expenses in bringing or defending any enforcement action.
For purposes of ease under this Agreement, all the parities agree that any enforcement action brought pursuant to this Agreement shall be venued in Camden County, New Jersey.
The exception to this provision regarding enforcement is in the event of breach by Defendant Assured Lending as to the due dates and/or amounts for payment related hereafter.
Paragraph V provides in ...