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Kieffer v. Best Buy

April 13, 2010

TINA KIEFFER AND KEVIN KIEFFER, PLAINTIFFS-RESPONDENTS,
v.
BEST BUY,*FN1 DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
AMERICAN INDUSTRIAL CLEANING, THIRD-PARTY DEFENDANT/ FOURTH-PARTY PLAINTIFF-RESPONDENT,
v.
ALL CLEANING SOLUTIONS, FOURTH-PARTY DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1354-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2009

Before Judges Axelrad, Sapp-Peterson and Espinosa.

Defendant, All Cleaning Solutions (All Cleaning), appeals from the motion judge's order directing it to pay the defense costs incurred by defendants Best Buy and American Industrial Cleaning (AIC). We affirm.

The record reveals that on June 19, 2004, plaintiff, Tina Kieffer,*fn2 slipped and fell on the floor at Best Buy in Holmdel. According to her deposition, the floor in the area where she fell was "very, very slippery" and the shine on the floor was so clear that she could see her face. In March 2006, plaintiff filed a complaint against Best Buy seeking to recover damages for the injuries she sustained. Best Buy filed its answer in April 2006. In December 2006, Best Buy's counsel contacted AIC, its cleaning contractor, requesting that AIC defend, indemnify and provide insurance coverage to Best Buy in the underlying litigation. By order dated December 8, 2006, the court granted Best Buy's motion for leave to file a third-party complaint against AIC.

On March 21, 2007, AIC filed an answer to the complaint as well as a fourth-party complaint against All Cleaning, with whom it had subcontracted to perform cleaning services at the Best Buy stores, including the Holmdel location. AIC asserted claims for contractual indemnification. Two months later, plaintiff filed a second amended complaint naming AIC and All Cleaning as direct defendants.

Throughout 2007, AIC made numerous attempts to contact All Cleaning without success. All Cleaning did not respond to these overtures and failed to answer or otherwise plead to the fourth-party complaint until February 2008 when it moved to vacate the default judgment that had been entered against it in favor of AIC. With AIC's consent, the court vacated the order granting default judgment that had been entered in favor of AIC against All Cleaning. Best Buy subsequently moved for summary judgment against plaintiff on liability and against AIC on its contractual indemnification claim. AIC opposed Best Buy's motion but also cross-moved for summary judgment against plaintiff on the issue of liability. AIC also sought summary judgment against All Cleaning as to its contractual indemnification claim.

In an October 15, 2008 order, the court granted summary judgment in favor of all three defendants.*fn3 The court rejected plaintiff's expert's opinion as a net opinion and concluded, as a matter of law, that there was no proof of negligence as to any of the defendants. The court also granted summary judgment in favor of Best Buy and AIC regarding their respective contractual indemnification claims. The court awarded Best Buy $25,790.09 in counsel fees and costs from AIC. Likewise, the court awarded AIC $11,763.75 in counsel fees and costs from All Cleaning.

All Cleaning moved for reconsideration of the court's order directing it to reimburse AIC for its counsel fees and costs. The court denied the motion and ordered All Cleaning to reimburse both Best Buy and AIC for the counsel fees and costs they incurred in defending the reconsideration motion. The court subsequently vacated this order and issued a revised order in which it once again denied All Cleaning's motion for reconsideration. It also denied attorney's fees to Best Buy and AIC for defending against the reconsideration motion. All Cleaning thereafter filed the present appeal.

On appeal, All Cleaning raises the following points for our consideration:

POINT I

THE LAW DIVISION'S DECISION GRANTING SUMMARY JUDGMENT TO BEST BUY AND AIC ON THE ISSUE OF DEFENSE ...


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