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Felice Zalk and Glen Zalk v. One Beacon Insurance Company

July 29, 2011

FELICE ZALK AND GLEN ZALK, PLAINTIFFS-RESPONDENTS,
v.
ONE BEACON INSURANCE COMPANY, DEFENDANT-RESPONDENT.
RINALDO AND RINALDO, ESQS., INTERVENOR-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3769-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued February 3, 2011

Before Judges Fuentes, Gilroy and Ashrafi.

This is an underinsured motorist (UIM) coverage action. Intervenor, the law firm of Rinaldo and Rinaldo, appeals from: the April 22, 2009 order that denied defendant One Beacon Insurance Company's motion seeking to enforce an alleged settlement of a UIM claim and granted plaintiffs Felice Zalk and Glen Zalk's motion seeking a plenary hearing pursuant to our prior remand, Zalk v. One Beacon Insurance Company, No. A-3625-05 (App. Div. January 16, 2007); from the June 30, 2009 order that granted defendant's motion seeking to reopen the plenary hearing to take testimony from one of defendant's attorneys concerning the timeliness of plaintiffs' complaint; and from the November 16, 2009 order that granted defendant's motion for summary judgment dismissing plaintiffs' complaint as untimely filed.*fn1 Intervenor also appeals from the January 8, 2010 order that denied its motion for reconsideration, or in the alternative, for a new plenary hearing. We affirm.

Because the procedural history and statement of facts leading to the filing of the complaint were discussed at length in our prior opinion, it is unnecessary for us to detail them here. However, the following summary will place this opinion in context.

I-A.

Plaintiff was injured in an automobile accident on November 15, 1996, when her automobile collided with a vehicle operated by tortfeasor Grace Narcisse. Plaintiff's vehicle was insured by General Accident Insurance Company*fn2 with a single-limit policy that provided $300,000 in uninsured and UIM coverage; Narcisse's vehicle was insured for liability coverage by Allstate Insurance Company with limits of $25,000 per person and $50,000 per accident. Plaintiff retained Matthew Rinaldo of the intervenor law firm*fn3 to represent her in a personal injury damage claim. On January 22, 2001, Matthew Rinaldo sent a Longworth*fn4 letter to defendant advising that plaintiff had received a $15,000 offer from Allstate to settle her personal injury claim against the tortfeasor, and that plaintiff desired to accept that offer and pursue a UIM claim against defendant by providing defendant with a $25,000 credit against the UIM coverage. Defendant's counsel rejected the offer advising plaintiff's counsel that it was necessary for plaintiff to first exhaust the tortfeasor's liability policy limits before proceeding to UIM arbitration.

On April 4, 2003, plaintiff accepted Allstate's offer to settle her personal injury claim against the tortfeasor for $15,000. On October 24, 2005, plaintiff filed her UIM complaint against defendant. Defendant filed a motion seeking summary judgment, contending that the complaint was time barred, having been filed more than six years post-accident. In opposing the motion, Matthew Rinaldo filed a certification stating that defense counsel had verbally agreed during the limitations period that defendant would proceed to UIM arbitration, but defendant failed to do so. On February 3, 2006, the trial court entered an order granting summary judgment, determining that Matthew Rinaldo's verbal representation of an agreement to arbitrate was insufficient proof to defeat the motion.

On appeal, we reversed, determining that the issue was not whether the complaint had been timely filed, but whether the parties had actually reached an agreement to arbitrate within the six-year statute of limitations period. In so doing, we stated that "through the supplemental certification of her counsel, [plaintiff] raised a material issue of fact concerning whether or not the parties had, within the limitations period, reached an agreement to arbitrate her UIM claim based upon the stated representations of defense counsel." We remanded, directing that the trial court "conduct a plenary hearing to determine whether or not an agreement had been reached between the parties to submit that matter to UIM arbitration within the six[-]year statute of limitations."

I-B.

In accordance with our remand instruction, the trial court scheduled a plenary hearing for March 9, 2007. On March 8, 2007, defendant's counsel Mark Herforth made an offer to settle plaintiff's UIM claim for $7,500 to Richard Rinaldo. Richard Rinaldo discussed the offer with plaintiff via telephone that day. Believing that plaintiff had consented to settle her UIM claim for $7,500, Richard Rinaldo informed Herforth of plaintiff's acceptance. Herforth then advised the court that the case was settled, and the court cancelled the plenary hearing scheduled the next day.

On September 12, 2007, plaintiff visited the intervenor's office contesting the existence of a settlement, claiming she had not authorized Richard Rinaldo to settle the UIM matter on March 8, 2007, and that she had not spoken to Richard or Matthew Rinaldo since March 8, 2007. Plaintiff ended her attorney-client relationship with intervenor by letter from her new attorney, Richard Galex of Galex Wolf, LLC. on November 20, 2007. On December 20, 2007, Galex sent a letter to Herforth stating that although Richard Rinaldo told Herforth that plaintiff had agreed to settle the UIM action for $7,500, plaintiff had neither accepted the offer, nor had authorized Richard Rinaldo to settle the claim. Galex further informed Herforth that plaintiff was rejecting the $7,500 settlement offer.

On April 22, 2008, recognizing that the existence of a binding settlement of the UIM claim would negate the need for a remand hearing, plaintiff filed a motion seeking a plenary hearing to determine whether a settlement had been reached on March 8, 2007. Defendant filed a cross-motion, seeking to enforce the purported settlement. The court bifurcated the issues, determining that it would conduct an initial plenary hearing to decide whether the parties had settled the UIM claim for $7,500. If not, the court would then conduct a second plenary hearing to determine ...


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