On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-180-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Fasciale.
After close examination of the record, we conclude that finality was not achieved in these consolidated cases, and therefore, Proformance Insurance Company's appeal from an order denying its motion for summary judgment must be dismissed. In explaining our ruling, we first summarize the pleadings. The record on appeal reveals that on January 22, 2007, plaintiffs Concetta Maiuri and the Estate of Domenico Maiuri commenced this action against Capitol City Contracting, Inc. (Capitol City) and others, alleging that, on the morning of January 23, 2005, Domenico was struck and killed by a pick-up truck that was plowing snow. The complaint alleged that the vehicle was operated by defendant Carlton Seigle during the course of his employment with Capitol City, and the vehicle Seigle was operating was owned by his sister, defendant Gail Williams.
At the time of the accident, Proformance provided coverage by way of two separate insurance policies: one which insured Williams and the other which insured the parents of Seigle and Williams. Proformance agreed to defend and indemnify Seigle and Williams pursuant to both policies but claimed the right to reduce the amount of coverage from $100,000/$300,000 to the statutory minimum of $15,000/$30,000 because the accident occurred while Seigle was engaged in a business pursuit.*fn1
At the time of the accident, Capitol City was insured by National Continental Insurance Company (NCIC).*fn2 In May 2008, Seigle and Williams commenced a separate action, seeking a defense and indemnification from NCIC and Proformance in the suit filed by Maiuri.
Maiuri's action was consolidated with Seigle and Williams's insurance coverage action. In March 2009, Proformance moved for summary judgment, seeking dismissal of the claims asserted against it by Seigle and Williams (the insureds). On April 17, 2009, the trial judge heard argument on Proformance's motion, as well as NCIC's summary judgment motion.
In opposing Proformance's motion during oral argument, the insureds' counsel claimed he was "surpris[ed]" by the fact that Proformance had finally included in its reply papers -- "after years of requesting" it -- a complete copy of the policy, which included a provision that the insureds believed negated the exclusion upon which Proformance relied.*fn3 In responding, counsel for Proformance confessed he also had not previously seen the provision that had suddenly become the focus of attention. The judge, who was also caught by surprise, nevertheless suggested that the insureds' interpretation of this provision seemed "pretty clear" but invited Proformance's counsel to suggest a plausible alternative. Proformance's counsel responded, "I have not -- I'll be honest, Judge, I'm reading as you are [for] the first time. I didn't see this in his [opposi]tion." This prompted the following colloquy:
THE COURT: I don't think anybody really addressed this anywhere before today, am I right about that?
[PROFORMANCE'S COUNSEL]: That's my next point, Judge.
THE COURT: Nobody addressed it before today, because the --
[PROFORMANCE'S COUNSEL]: Counsel brings it up today and I'm reading it the first time as I believe you are.
THE COURT: -- well, he brings it up today because he didn't have the policy until you sent [your reply ...