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Transcontinental Insurance Co. v. Lenny

June 25, 2010

TRANSCONTINENTAL INSURANCE COMPANY, PLAINTIFF,
v.
LENNY, VERMAAT AND LEONARD, INC., SARAH WEDGWOOD, ERA OMNI REALTY KIRSTEN SHERWIN, MICHAEL DINELLA AND JAMES LAPHAN, DEFENDANTS, AND LENNY, VERMAAT AND LEONARD, INC., THIRD-PARTY PLAINTIFF-APPELLANT,
v.
PRESERVER INSURANCE CO., THIRD-PARTY DEFENDANT-RESPONDENT, AND SANDRA W. CRELLIN, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket Nos. L-356-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 19, 2010

Before Judges C.L. Miniman and Fasciale.

Lenny, Vermaat and Leonard, Inc. (LVL) appeals from a June 6, 2008 order granting summary judgment to Preserver Insurance Company (Preserver), and from a December 1, 2008 order denying LVL's application for counsel fees from Preserver. The appeal presents two issues: (1) whether LVL's appeal is timely, and if so, (2) whether Preserver is obligated to pay LVL's counsel fees. We dismiss the appeal as untimely.

On January 17, 2003, Sarah Wedgwood was injured when she slipped and fell at property owned by Sandra Crellin. Wedgwood filed a personal injury lawsuit against ERA Omni Realty (Omni), Kirsten Sherwin, and LVL (the listing agency). LVL leased its premises from 90 Tanner, LLC (Tanner). LVL's insurance agent, Dunhour Agency, notified Preserver about the Wedgwood claim. Preserver insured Tanner not LVL. LVL was insured by Transcontinental Insurance Company (Transcontinental). Despite not insuring LVL, Preserver undertook to investigate the Wedgwood claim. Wedgwood filed her complaint on January 18, 2005, and Preserver disclaimed coverage for the loss. Transcontinental filed a declaratory judgment complaint against LVL, Wedgwood, Omni, Sherwin, DiNella, and James Laphan. LVL filed a third-party complaint against Preserver, but not Dunhour Agency. The Wedgwood and Transcontinental complaints were thereafter consolidated.

On June 6, 2008, the motion judge found that Transcontinental, not Preserver, owed coverage and a defense to LVL for the Wedgwood loss. On August 7, 2008, the motion judge denied Transcontinental's motion for reconsideration and granted LVL's cross-motion against Transcontinental for counsel fees subject to a future application. On November 21, 2008, an order dismissing all claims in the Wedgwood lawsuit was filed because that action settled.*fn1 Also on November 21, 2008, LVL settled its claim against Transcontinental for counsel fees, and on December 1, 2008, the court entered an order denying LVL's application for counsel fees against Preserver. On December 5, 2008, the motion judge denied DiNella's motion to amend his answer to assert a counterclaim and cross-claim, and on January 28, 2009, the judge signed an amended order denying DiNella's request for counsel fees. All claims in the Transcontinental declaratory judgment case were resolved on January 28, 2009, the date on which DiNella's cross-motion was denied.

LVL argues on appeal:

A. Standard of Review

B. The Motion Judge Committed Harmful Error By His Failure To Analyze That Preserver Was Equitably Estopped From Disclaiming Coverage By Acknowledging And Controlling The LVL Claim For 17 Months

C. The Motion Judge Also Committed Harmful Error By Erroneously Analyzing Or Overlooking LVL's Argument That Preserver Waived Its Right To Disclaim Coverage As A Result Of Assuming Control Without Issuing A Reservation Of Rights Letter

D. The Motion Judge Also Committed Harmful Error By Failing

To Analyze That As A Result Of Coverage Created By Either Waiver Or Estoppel, LVL Is Entitled To Counsel Fees Pursuant To R. 4:42-9(a)(6) As A Prevailing Party

To be appealable, a judgment must be final as to all parties and all issues. Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974). The rule of finality applies to consolidated actions and requires all issues as to all parties in all actions that have been consolidated to be resolved before an appeal as of right may be taken ...


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