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Salvato v. Grieco

March 27, 2009

ROBERT SALVATO, AS GUARDIAN AD LITEM, AND FRANCESCA SALVATO, A MINOR, PLAINTIFFS,
v.
JOSEPH GRIECO AND LINDA GRIECO, DEFENDANTS/THIRD-PARTY PLAINTIFFS-APPELLANTS,
v.
HIGH POINT PROPERTY AND CASUALTY INSURANCE COMPANY, THIRD-PARTY DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3975-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2009

Before Judges Skillman and Ashrafi.

Defendants Joseph and Linda Grieco appeal summary judgment dismissing their third-party complaint against their homeowners insurance carrier, High Point Property and Casualty Insurance Company ("High Point"). We affirm.

Plaintiff Robert Salvato filed suit against the Griecos on behalf of his seven-year-old daughter Francesca for injury caused by the Griecos' dog. The Griecos sought coverage from High Point. High Point declined coverage citing provisions of the insurance policy excluding liability coverage or medical payments for bodily injury to a resident of the household who is a relative by blood or marriage of the named insureds. Francesca is Linda Grieco's granddaughter and had been living with the Griecos for about four months before she was injured.

With their answer to the Salvatos' complaint, the Griecos filed a third-party complaint against High Point for declaration of coverage under the policy. After discovery, the Griecos and High Point filed cross-motions for summary judgment on the coverage issue. The trial court granted summary judgment to High Point by order of January 18, 2008, with a written statement of reasons. On April 15, 2008, the attorneys for the Salvato plaintiffs and for the Grieco defendants filed a stipulation of dismissal of the underlying personal injury lawsuit. The dismissal was without prejudice. The Griecos then filed a notice of appeal from the January 18, 2008, order.

As a preliminary matter, we are troubled by the procedural steps leading to this appeal. Rule 2:2-3(a) provides that a party may appeal a final judgment as of right. If appeal is sought from an order that is not a final judgment, the appellant must move before this court for leave to appeal. Rule 2:2-4; Janicky v. Point Bay Fuel, Inc. 396 N.J. Super. 545, 549-50 (2007). A final judgment is one that disposes of all issues as to all parties. Ibid.; Parker v. City of Trenton, 382 N.J. Super. 454, 457 (App. Div. 2006); Caggiano v. Fontoura, 345 N.J. Super. 111, 123 (App. Div. 2002).

The order of January 18, 2008, was not a final judgment. It did not resolve the underlying personal injury case between the Salvatos and the Griecos. We have no information about any terms of an agreement reached by the parties to dismiss voluntarily the personal injury case without prejudice. If the purpose was to open the door for an appeal of the coverage issue, and if the parties have agreed that the personal injury complaint will be reinstated by consent if the appeal is successful, then the case has not been resolved as to all issues and all parties. Defendants should have filed a motion for leave to appeal.

Despite our misgivings, we address the coverage issue on the merits assuming that the underlying case has been resolved. The Griecos incurred defense costs while the personal injury lawsuit was active and they have at least a claim against High Point for reimbursement of those costs.

For purposes of summary judgment and this appeal, the facts are either undisputed or viewed most favorably to the Griecos. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On May 31, 2004, the Griecos' six-year-old golden retriever jumped on Francesca and injured her forehead. Because Francesca was the only one present and has not given a clear description of the incident, and also because medical records have not been included in the record of this appeal, the evidence does not show whether the dog bit or scratched Francesca. It appears that the injuries were not serious.

The incident occurred in the Griecos' home, where Francesca and her mother, Dana Madeline, had moved about four months earlier when Dana separated from Francesca's father, Robert Salvato. Dana Madeline is the daughter and Francesca Salvato the granddaughter of Linda Grieco. Neither Dana nor Francesca is related by blood to Joseph Grieco, who married Linda Grieco after Francesca was born.

Rather than quoting the terms of the High Point policy in their briefs, the parties agree that the policy does not cover the Griecos if Francesca is deemed to be related to them and a ...


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