On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3580-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Gilroy and Simonelli.
Plaintiff, ADT Security Services, Inc., appeals from the September 12, 2008 order that granted summary judgment to defendant Synnex Corporation. We affirm.
This is the second appeal concerning the parties' rights and obligations under a contract dated July 11, 2001. Because the procedural history and statement of facts were discussed at length in our prior reported decision, Synnex Corp. v. ADT Security, 394 N.J. Super. 577, 580-84 (App. Div. 2007), it is unnecessary for us to fully detail them here. However, the following summary will place this appeal in context.
ADT sells and monitors burglar alarm systems. Synnex is a distributor of information technology products. In 2001, Synnex requested ADT to design, install, and monitor a burglar alarm system at Synnex's warehouse in Edison. On July 11, 2002, the parties executed ADT's form contract, which contained a broad exculpatory provision. Synnex Corp., supra, 394 N.J. Super. at 582. The paragraph containing the exculpatory provision also governed Synnex's obligation to indemnify ADT for third-party claims:
IN THE EVENT ANY PERSON, NOT A PARTY TO THIS AGREEMENT, SHALL MAKE ANY CLAIM OR FILE ANY LAWSUIT AGAINST ADT IN ANY WAY RELATING TO THE EQUIPMENT OR SERVICES THAT ARE THE SUBJECTS OF THIS AGREEMENT, INCLUDING FOR FAILURE OF ITS EQUIPMENT OR SERVICE IN ANY RESPECT, CUSTOMER [SYNNEX] AGREES TO INDEMNIFY AND HOLD ADT HARMLESS FROM ANY AND ALL SUCH CLAIMS AND LAWSUITS INCLUDING THE PAYMENT OF ALL DAMAGES, EXPENSES, COSTS AND ATTORNEYS' FEES.
Pursuant to the contract, ADT installed a security system at the warehouse and provided monitoring services of the system.
On March 8, 2003, six months after ADT had installed the alarm system, a burglary occurred at the warehouse, resulting in a $7,600,000 loss of inventory. At the time of the loss, Mitsui Sumitomo Insurance Group (MSIG) insured Synnex. MSIG paid Synnex $7,100,000 in settlement of the loss. On March 8, 2004, MSIG brought a subrogation action in Synnex's name against ADT, seeking to recover the monies it paid Synnex under the insurance policy, together with additional losses that Synnex incurred which were not covered by the policy. ADT filed a counterclaim for indemnification, alleging that MSIG was the real party in interest in the action, and thus, Synnex was obligated to indemnify ADT for attorney fees and other expenses it was then incurring in defending the action.
Prior to trial, the parties filed cross-motions for partial summary judgment. ADT sought dismissal of Synnex's consumer fraud, gross negligence and strict liability claims. Synnex sought not only to dismiss ADT's counterclaim for indemnification, but also to bar ADT from relying on the exculpatory provision, asserting that it was unenforceable as against public policy. On November 10, 2005, the trial court granted ADT partial summary judgment; the court also granted Synnex partial summary judgment, declaring the exculpatory provision void as contrary to public policy. However, the court did not expressly address that part of Synnex's motion seeking to dismiss ADT's claim for indemnification. On the same day, the court entered a confirming order, determining the exculpatory provision unenforceable. The order also dismissed ADT's counterclaim in its entirety.
On November 28, 2005, ADT filed a motion in limine, seeking to clarify that its indemnification claim had not been dismissed by the court's November 10 order, contending that the parties' oral arguments and the court's ruling were limited to the exculpatory liability provision only and had not addressed the indemnification claim. On December 5, 2005, the court denied the motion, concluding that it had struck the indemnification provision, along with the exculpatory provision in its November 10, 2005 decision.
A jury found each party 50% liable and determined the total loss sustained by Synnex was $7,645,580. The court molded the verdict and entered judgment in favor of Synnex in the amount of ...