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Abraham D. Feuer and Sarah Feuer, Husband and Wife v. Berkys A. Mercedes

November 21, 2012

ABRAHAM D. FEUER AND SARAH FEUER, HUSBAND AND WIFE, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
BERKYS A. MERCEDES, DANIEL E. MERCEDES, VALERIE J. MACON, AND CUIDADO CASERO, DEFENDANTS, AND HANOVER INSURANCE COMPANY, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
VALERIE J. MACON AND CUIDADO CASERO, THIRD-PARTY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1885-05. Neil A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 23, 2012

Before Judges Reisner and Harris.

Defendant Hanover Insurance Company (Hanover) appeals, and plaintiffs Abraham D. and Sarah Feuer cross-appeal, from a November 16, 2011 order denying plaintiffs' motion to vacate an August 15, 2008 order granting summary judgment in favor of Hanover.

Although the November 16 order was entered in its favor, Hanover purports to "appeal" from dicta in the motion judge's opinion. Because Hanover prevailed on the November 16 motion, and because appeals are taken from orders, not from judicial opinions, we dismiss Hanover's appeal. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001).

On the cross-appeal, we affirm the November 16, 2011 order, because plaintiffs did not file their motion within one year of the August 15, 2008 order, as would be required for a motion based on mistake or excusable neglect under Rule 4:50-1(a). See R. 4:50-2. Nor was their motion filed within a reasonable time after entry of the order, as is required for motions filed under all sections of Rule 4:50-1, including subsection (f). See R. 4:50-2; Deutsche Bank v. Angeles 428 N.J. Super. 315, 319 (App. Div. 2012); Orner v. Liu, 419 N.J. Super. 431, 437-38 (App. Div.), certif. denied, 208 N.J. 369 (2011).

I

This is what happened. On June 16, 2003, a car driven by Berkys A. Mercedes was involved in an accident with a car driven by Abraham D. Feuer. The Mercedes vehicle was insured with a $15,000 liability policy.*fn1 The Feuer vehicle was insured with a policy from Hanover that provided $100,000 in underinsured motorist (UIM) coverage. On June 17, 2005, plaintiffs filed a personal injury lawsuit against Mercedes, and in November 2006, plaintiffs' counsel put Hanover on notice that their damages would probably exceed the Mercedes policy limits. See Zirger v. General Accident Ins. Co., 144 N.J. 327 (1996). Hanover promptly intervened in the lawsuit to protect its interests, and it eventually consented to plaintiffs settling with Mercedes for the $15,000 provided by her insurance policy.

During discovery, the parties explored the possible existence of additional insurance coverage for the accident. At a November 2007 deposition, Mercedes testified that she worked as a home health aide employed by Cuidado Casero (Casero), and that at the time of the accident, she was on her way to visit a patient. She testified that her employer had workers' compensation coverage with Liberty Mutual, which paid for her medical treatment following the accident.

In August 2008, Hanover filed a motion for summary judgment, apparently premised on the theory that Mercedes' employer, Casero, was respondeat superior liable for her negligence and that plaintiffs could recover their damages from Casero's insurance. Judge John A. Peterson granted the application by order dated August 15, 2008. The order provided that, for "reasons stated on the record," the motion was granted "on the theory of vicarious liability and respondeat superior against Cuidado Casero," and ordered that Casero "provide a defense and indemnification, or provide an insurance policy providing a defense and indemnification to the defendant, Berkys Mercedes."

However, neither party to this appeal has provided us with a complete set of the motion papers filed in support of or in opposition to the summary judgment application. Because no party has provided us with the proofs, or with Judge Peterson's statement of reasons, we cannot determine the legal basis for the 2008 order, or its legal significance. In particular, we cannot fairly predict what if any estoppel effect it should have in any future litigation between plaintiffs and Hanover concerning UIM coverage.

Three years later, in August 2011, plaintiffs filed a motion pursuant to Rule 4:50-1(f), to vacate the summary judgment order and reinstate the complaint against Hanover. In support of the 2011 motion plaintiffs' counsel filed a certification, attesting that on the 2008 motion, Hanover had submitted a copy of a Liberty Mutual workers' compensation and employer liability policy, covering the period 2007-2008, as its proof that Casero had liability insurance covering the accident. The certification further asserted that "Plaintiff did not oppose co-defendant Hanover's motion for summary judgment benefits as at the time of the motion all parties believed that either the Liberty Mutual insurance policy identified by Hanover in its motion, and/or some other unknown policy, would provide commercial insurance coverage for Berkys Mercedes as Cuidado Casero's employee." The attorney also certified that instead of opposing Hanover's motion, plaintiffs moved for summary judgment against Casero and moved for a court order requiring Casero "to supply a commercial insurance policy providing a defense and indemnification of defendant Mercedes."*fn2 The certification then recited that plaintiffs eventually went to trial against Casero and recovered a $100,000 verdict but were never able to collect it.

According to the certification, Casero's attorney eventually identified an insurance policy purportedly in effect at the time of the accident but advised that Casero never notified that insurer about the accident. In the record is a November 16, 2009 letter from Darwin J. Bruce of Dallas, Texas, advising plaintiffs' attorney that Casero had "located a copy of an additional commercial general liability insurance policy" that might provide coverage for the accident, and suggesting that plaintiffs submit their claim to that insurance company. The attached declarations page indicated that the policy covered the period February 19, 2003 to February 19, 2004, clearly identified the policy as written by "CERTAIN UNDERWRITERS AT LLOYD's," and gave the policy number. However, inexplicably, plaintiffs' counsel ...


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