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Alonso Valdivia v. K. Hovnanian

February 17, 2012

ALONSO VALDIVIA, PLAINTIFF,
v.
K. HOVNANIAN, C&C RIPOLL MASONRY, INC., B&B DRYWALL, ALL TECH CARPENTRY CONTRACTORS, LLC, DEFENDANTS,
AND B&B CUSTOM DRYWALL, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
C&R DRYWALL, LLC, THIRD-PARTY DEFENDANT, AND PREFERRED MUTUAL INSURANCE COMPANY, THIRD-PARTY DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0973-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 3, 2011

Before Judges Grall and Alvarez.

This matter is before us on leave granted third-party defendant Preferred Mutual Insurance Company (PMIC) to take an interlocutory appeal from a December 3, 2010 Rule 1:10-3 order enforcing litigant's rights. The order required PMIC to defend C&R Drywall, LLC (C&R), against a third-party complaint filed by B&B Drywall (B&B) seeking, among other things: contribution by C&R pursuant to N.J.S.A. 2A:15-5.1, common-law and contractual indemnification, and a defense and indemnification in accord with C&R's subcontractor agreement with B&B. B&B, an additional named insured on C&R's commercial general liability (CGL) policy issued by PMIC, also filed a third-party complaint against PMIC to compel coverage.

Upon closer consideration of the scant record provided to us, we decide that interlocutory appellate review was improvidently granted. See R. 2:5-6; S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 89-92 (App. Div. 1998). We discern no interest of justice to be served by the premature and piecemeal adjudication of the issues in this case. See R. 2:2-4; R. 2:2-3(b); CPC Int'l Inc. v. Hartford Accident & Indem. Co., 316 N.J. Super. 351, 365 (App. Div. 1998), certif. denied, 158 N.J. 73 (1999). Indeed, the interests of justice will best be served by an "uninterrupted proceeding at the trial level with a single and complete review . . . ." See S.N. Golden Estates, supra, 317 N.J. Super. at 88 (quoting State v. Reldan, 100 N.J. 187, 205 (1985)). We make the following brief comments only to address a substantive error in the December 3, 2010 enforcement order from which appeal was taken and to correct a misapprehension with regard to enforcement applications generally.

A short summary of the facts and procedural history is necessary. On August 23, 2006, plaintiff Alonso Valdivia, a C&R employee, was injured on a construction project when he fell through an opening on the first floor into a basement. He thereafter sued several parties for his injuries, including B&B, the company that had subcontracted aspects of the drywall installation to C&R on that particular job. Valdivia separately pursued his remedies against his employer C&R under the New Jersey Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -128.

The agreement between B&B and C&R stated:

C&R Drywall [a]s a subcontractor of B&B Custom Painting agrees to indemnify and hold B&B harmless from any and all demands, claims, suits, causes of action, damages, losses, penalties, and or expenses, including attorney fees, arising out of [or] resulting from subcontractor's performance of the work required by the agreement.

C&R Drywall LLC [a]grees to assume its entire responsibility and liability for all damages or injury to all persons, whether its employees or otherwise, and all property arising out of or in any manner connected with the execution of the "work" performed under the agreement.

When Valdivia sued B&B, B&B in turn filed its third-party complaint against C&R and PMIC.

C&R eventually answered B&B's third-party complaint. C&R also filed a third-party complaint of its own against PMIC, alleging that the insurer's earlier declination of coverage to B&B's suit issued in bad faith and in breach of the insurance contract. PMIC's declination letter stated in pertinent part:

You will also note that the policy does not apply to contractual liability arising out of the assumption of liability in a contract or agreement, unless the contract is an insured contract. The endorsement CG 24 26 0704, which is attached to your policy, states that the bodily injury must be caused in whole or in part by you or those acting on your behalf in order for there to be a contract or agreement for which this insurance would respond. In this case, there is no indication that the fall occurred as a result of any negligence on your part.

PMIC moved for summary judgment seeking dismissal of B&B's complaint, and a judgment that PMIC had no duty to defend B&B. PMIC also sought a ruling that it had no duty to defend C&R on B&B's third-party complaint. We were not provided copies of any of these pleadings, but assume that C&R affirmatively cross-moved for an order compelling PMIC to provide a defense, as at oral argument, conducted on May 28, 2010, the focus was on PMIC's obligation to defend C&R. Although PMIC seemed to ...


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