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Zdzislaw Choinski and Magdalena Choinski, His Wife v. Dendrite International


January 3, 2011


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3203-07.

Per curiam.


Submitted November 8, 2010 - Decided Before Judges Lisa, Sabatino and Alvarez.

In this appeal, we are asked to review the validity of certain indemnification provisions entered into by defendant International Management Construction Co. (IMC)*fn1 and third party defendant Dallas Contracting Co., Inc. (Dallas). After a trial, the court ordered Dallas to reimburse: (1) the $20,000 IMC paid in settlement to plaintiff Zdzislaw Choinski (Choinski) on account of his personal injury complaint, and (2) a $25,500 portion of the total counsel fees and costs IMC incurred in defending the proceedings. The third count of IMC's third party complaint against Dallas was, however, left unresolved. In that count, IMC sought to enforce Dallas's contractual commitment to provide general liability insurance against claims similar to those asserted by Choinski. We conclude that the order requiring Dallas to reimburse IMC did not constitute an appealable final judgment in light of the as yet unresolved third count and, as a result, remand for further proceedings in accordance with this opinion.

The following is a brief description of the relevant facts and procedural history. IMC, the general contractor, entered into an agreement with Dallas, the subcontractor and Choinski's employer, for Dallas to perform demolition work at defendant Dendrite International's building site. Two separate provisions in the contract between the parties, Section 12.1 and 12.2.1, are in dispute - both obligate Dallas to indemnify IMC from work-related claims. In addition, Section 13.1 of the agreement requires Dallas to name IMC as an additional insured on all policies except for workers' compensation, specifically including liability coverage.

By the time the matter was trial-ready, the only remaining parties were Choinski, IMC, and Dallas. We cannot glean the nature of Choinski's injuries from this record, which does not include a single transcript.

We do know from the judge's written decision dated June 2, 2009, that after Choinski's settlement with IMC, he testified at trial.*fn2 The jury answered only the first question on the verdict sheet; they were asked "[w]as it proved by a preponderance of the evidence that [IMC] was negligent on April 9, 2005?" The jury responded in the negative. For reasons not found in the limited record we have available, the questions on the verdict sheet were framed so that if the jury decided IMC was not negligent, it did not need to reach the issues of whether either plaintiff or Dallas were negligent.

Once the jury returned the verdict, the court rendered its written opinion determining that there was no merit to Dallas's claim that the indemnification clauses were ambiguous, and that therefore IMC was entitled to recover the $20,000 settlement it paid to Choinski. The court also stated that "[u]nder the circumstances herein, the court is satisfied that an award of $25,000 in legal fees and $500 in costs is reasonable." IMC had sought reimbursement of $31,447.50 in attorney's fees and $580.95 in costs. The trial court's award totaled $45,500.

The trial court's written opinion did not dispose of the outstanding third count of IMC's complaint against Dallas. It merely stated the following: "IMC notes further that Dallas was obligated to name IMC as an additional insured under the subcontract but did not do so. The court, therefore, denies Dallas's motion to dismiss the claim for contractual indemnification."

When a clerk of this court inquired of counsel as to whether the trial judge's decision was indeed final, Dallas responded in writing that IMC has waived its claim for breach of contract for failure to obtain liability insurance, and that in any event, the claim was "nothing more than an irrelevant distraction," for various reasons related to Dallas's position that it had no obligation to indemnify IMC. We disagree as to both points.

First, we see no evidence that IMC made such a waiver, either in the trial court or on appeal. See Knorr v. Smeal, 178 N.J. 169, 177 (2003) ("Waiver is the voluntary and intentional relinquishment of a known right."). Second, the contention that Dallas had no obligation to indemnify IMC pursuant to the language contained in Sections 12.1 and 12.2.1 of the agreement is separate from the contractual commitment Dallas made in a different section of the agreement, Section 13, to name IMC as an additional insured. Had IMC been named as an additional insured under a general liability policy, presumably no counsel fees would have been incurred by IMC. Even now, IMC is out-of-pocket some $6528.45 in counsel fees and costs from just the trial, despite the jury's verdict and the indemnification provisions, because the trial judge, without a detailed explanation, awarded less than the sum IMC demanded.

Rule 2:2-3 provides that a judgment, in order to be final and therefore ripe for appeal, must dispose of all outstanding issues between parties. Grow Co. v. Chokshi, 403 N.J. Super. 443, 457-58 (App. Div. 2008); Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007); Parker v. City of Trenton, 382 N.J. Super. 454, 457 (App. Div. 2006). Absent finality as to all issues, the matter is not suitable for appellate review. It is essential to the fair and efficient administration of justice, except in limited circumstances where leave is granted, that matters not be appealed unless all issues can be reviewed. Grow Co., supra, 403 N.J. Super. at 457-58. Indeed, "only an order that finally adjudicates all issues as to all parties is a final order and . . . an interlocutory appeal is permitted only by leave of our appellate courts." Ibid. No leave to appeal having been requested by Dallas, the matter is remanded for the completion of proceedings relative to the unresolved count of the third party complaint.

We note in passing that the court did not explain in great detail either why the $20,000 settlement IMC reached with Choinski was reasonable or why a reduced award of counsel fees was appropriate. If possible, the trial court should amplify its reasons concerning these matters upon remand. The appeal is accordingly dismissed as interlocutory.

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