On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-523-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Grall and Skillman.
Plaintiff, Edward F. Christ II, appeals from a grant of summary judgment in favor of defendant Coastal Insulation Corporation and three of its employees - defendant Steven Schwartz, the president; defendant David Simone, an account representative; and defendant Karen LaBelle, an assistant controller. The trial court also granted plaintiff's motion for summary judgment on defendants' counterclaims, which defendants did not oppose.
The parties' competing claims arose out of defendants' installation of insulation in plaintiff's residence and their efforts to collect the balance due on the job. On November 19, 2008, plaintiff signed Coastal's proposal to furnish the material and "complete the work in a workmanlike manner according to standard practices" for $1800. In accordance with the terms, plaintiff paid half the total price. Three installers did the work on November 20, 2008. While the work was underway, plaintiff went to the basement. He alleges that one of the men working there "accidentally" sprayed chemicals in his face and as a consequence, he fell while going up the stairs to rinse his face. Upon completing the work, the installers left the insulation they had not used in plaintiff's basement.
After the work was complete, Simone inspected the project. He filled in some gaps in the insulation but did not remove the unused insulation the workers had left behind. Plaintiff subsequently hired two "day workers" to remove it, but he did not incur any other expense related to Coastal's work. There is no evidence that the work was done in a substandard or unworkmanlike manner; the municipality's inspector approved Coastal's work in the areas above the basement before the plaster board was installed. A final inspection of the house, which had been fully renovated, was not done until after this litigation commenced.
In January and February 2009, Simone came to plaintiff's home to collect the balance due for the work, and plaintiff faxed a letter stating his objections to Schwartz. On March 30, 2009, plaintiff filed an action in the Special Civil Part seeking damages for medical conditions he suffered as a consequence of the insulation and damages for stalking and harassment by employees of Coastal. Coastal filed an answer and a counterclaim on May 9 seeking payment of the $900 balance plaintiff owed and alleging malicious prosecution.
By check dated and delivered on May 14, 2009, plaintiff paid the balance due. Before that check was cashed, a bookkeeper for Coastal wrote "Bad debt" in the memo line on the face of the check. LaBelle explained that Coastal made such notations for purposes of internal accounting when it receives payments on bills it has "written off."
In June 2009, plaintiff's motion to transfer the case to the Law Division was granted. He subsequently filed an amended complaint charging Coastal, Simone, Schwartz and LaBelle with breaches of express and implied contract and the warranty of workmanlike performance, negligence, libel, injurious falsehood, malicious prosecution, abuse of process and negligent infliction of emotional distress. The counts alleging libel and injurious falsehood were based on the "Bad debt" notation placed on the check and the fact that the final inspection of the house was not done before the counterclaim was filed or before he paid the $900 balance. In his view, he was not required to pay until that inspection.
Plaintiff did not seek medical attention as a consequence of the incident involving the chemical spray or his exposure to the insulation left in his basement until May 2009. As noted above, the insulation was installed in November 2008.
On appeal plaintiff argues:
APPELLANT'S NOT PAYING BALANCE OF CONTRACT TO COASTAL INSULATION CORPORATION DOES NOT JUSTIFY COASTAL'S ILLEGAL CONDUCT OF DAMAGING APPELLANT'S DOORS AND UNPROVOKED ATTACKS AGAINST APPELLANT'S PERSON IN BACK YARD PER ORDERS FROM PRESIDENT STEVEN SCHWARTZ TO SALESMAN AND DEBT COLLECTOR, DAVID SIMONE, WHO PERFORMED THESE ILLEGAL ACTS AT THIS APPELLANT'S RESIDENCE ON NUMEROUS OCCASIONS. COASTAL INSULATION FURTHER RETALIATED PLACING "BAD DEBT" ON APPELLANT'S BANK CHECK AND INSTITUITED COUNTERSUIT AGAINST APPELLANT OF MALICIOUS CIVIL PROSECUTION. THIS ISSUE BEFORE THE APPELLATE COURT IS OF GREAT GENERAL PUBLIC INTEREST. THEREFORE, APPELLANT SHOULD BE PERMITTED A TRIAL TO DETERMINE THE SUBSTANTIAL AMOUNTS OF FACTS WHICH ARE DISPUTED BY THIS APPELLANT.
Having considered the record in light of the arguments plaintiff presents, we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm the entry of summary judgment in favor of all defendants substantially for the ...