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Commercial Insurance Company of Newark v. Steiger

April 16, 2009

COMMERCIAL INSURANCE COMPANY OF NEWARK, PLAINTIFF-APPELLANT,
v.
MARY STEIGER, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF DAVID STEIGER, MICHAEL G. NATOLI, PEERLESS INSURANCE CO., SAAB SCANCIA, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7244-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 1, 2009

Decided Before Judges Payne and Newman.

Plaintiff Commercial Insurance Company of Newark (Commercial), appeals from several orders of the trial court.

The underlying incident involved a single-car crash in which David Steiger was killed when his Saab overturned after striking a toll booth on the New Jersey Turnpike. Defendant Mary Steiger, on her own behalf and as executrix of the decedent's estate (Estate), filed a complaint against Saab. The parties settled on the second day of trial.

Approximately two years later, Estate demanded coverage from Commercial on the decedent's uninsured motorist (UM) policy, alleging a "phantom vehicle" had caused the accident. Commercial sought declaratory judgment barring the UM claim. Estate filed a cross-motion to compel arbitration of the UM claim. The trial judge granted Estate's motion and this court affirmed the order on appeal. Commercial Ins. Co. v. Steiger, 395 N.J. Super. 109 (App. Div. 2007).

The present appeal arose when Estate sought an order compelling Commercial to proceed to UM arbitration. Commercial filed a cross-motion objecting to the named arbitrators, seeking contribution for the cost of storing the vehicle involved in the accident, and seeking to compel additional discovery. Although Commercial requested oral argument, the trial court decided both motions on the papers, granting Estate's motion and denying Commercial's motion. The trial judge found Commercial's claims were precluded by the prior litigation. Commercial filed a motion for reconsideration which the trial court also denied without holding oral argument.

Commercial then filed this appeal, arguing it should have been granted oral argument on both the cross-motion and the motion for reconsideration, that the trial judge erred in not making any oral or written findings, that the trial judge was inconsistent in granting Estate's motion while denying Commercial's motion, and that the order compelling UM arbitration violated Commercial's contractual rights to discovery and to name its own arbitrator.

At oral argument, the parties agreed to the following relief:

(1) The UM claim shall be submitted to arbitration within forty-five days of the date of this opinion;

(2) Within twenty-one days of the date of this opinion, the deposition of Michael Natoli shall be conducted and completed;

(3) The report and/or testimony of the Affiliated Engineer representative relating to the scrapings from the Saab vehicle is admissible at the arbitration proceeding;

(4) The Saab vehicle may be disposed of at this time and the issue of the storage fees for the Saab vehicle will be remanded to the trial court for disposition which may be decided on the basis of documents and argument by counsel. Although counsel did not believe testimony was necessary on resolving this issue, it is of ...


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