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Pedro Acosta and Antonio Acosta v. John M. Jackovino

November 8, 2012

PEDRO ACOSTA AND ANTONIO ACOSTA, PLAINTIFFS-RESPONDENTS,
v.
JOHN M. JACKOVINO, DEFENDANT-APPELLANT, AND LEONARD GREENE, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2465-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 3, 2012

Before Judges Axelrad and Nugent.

Defendant John Jackovino appeals from an order of the Law Division entered on December 2, 2011, vacating the court's order administratively dismissing plaintiffs' automobile negligence, personal injury complaint and permitting reinstatement, and confirming a June 9, 2011 arbitration award of $25,000.

Defendant also appeals from a March 2, 2012 order denying reconsideration. We reverse and remand.

On or about June 26, 2009, plaintiffs filed suit for personal injuries sustained in an automobile accident occurring on June 30, 2007. On June 9, 2011, the matter was submitted to non-binding arbitration pursuant to Rule 4:21A-1(a)(1), after which the arbitrator found defendant 100% liable, and awarded plaintiffs $25,000 in damages.

By order of August 26, 2011, the court administratively dismissed the action under Rule 4:21A-6(b). Neither party had rejected the award and demanded a trial de novo within thirty days of the arbitration award. R. 4:21A-6(b)(1). Nor had either party submitted a consent order for dismissal or entry of judgment or moved for confirmation of the arbitration award and entry of judgment within fifty days of the arbitration award. R. 4:21A-6(b)(2) and (3).

On or about November 4, 20ll, plaintiffs filed a motion to vacate the administrative dismissal for failure to file a timely motion and to confirm the arbitration award. In support, plaintiffs' attorney submitted a certification that recited the procedural history and stated, in pertinent part:

6. Immediately after the arbitration award of June [9], 20ll counsel for the plaintiff and defendant discussed settlement of the matter leading plaintiffs' counsel to believe that the case had been settled.

7. On October 26, 2011, after dismissal of the case, defendant informed plaintiff of defendant's intention to no longer offer settlement.

Defendant opposed plaintiffs' motion. Defense counsel submitted a certification stating, in pertinent part:

5. As the undersigned and plaintiffs' attorney, Michael Alvarez, were departing from the room where arbitration was conducted, Mr. Alvarez asked me my opinion about w[h]ether the defendant's insurance carrier, New Jersey Manufacturers Insurance Company, would accept or reject that award. I informed Mr. Alvarez that I had no foresight or knowledge of what would be the carrier's inclination on the matter. I told Mr. Alvarez that my procedure was and would be to report to the carrier and await its instruction. I did not ask Mr. Alvarez what was his feeling about the award. I did not make any offer in settlement, for indeed I had no authority to make any such offer. Mr. Alvarez did not indicate to me that his clients would accept the award, but rather commented to [the arbitrator] that the award was "a little light." Plaintiffs' attorney and I had no further significant discussion at arbitration. At arbitration I said nothing to plaintiffs' attorney that would have induced any reasonable person to conclude that an offer in settlement had been made and plaintiffs' attorney said nothing suggesting that an offer in settlement had been perceived or accepted.

6. Under cover of June 10, 2011, the undersigned drafted a letter to New Jersey Manufacturers Insurance Company, reciting events at arbitration, informing the company of the award and requesting instruction on the acceptance or rejection of the award. We attach hereto as exhibit "B" a redacted copy of our report, showing the sentence in which the undersigned requested the carrier's instruction. Nowhere in that report was there an indication that the case had been ...


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