NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued May 2, 2013
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. 0070-07.
Dennis T. Smith argued the cause for appellant (Pashman Stein, P.C., attorneys;Samuel J. Samaro and Mr. Smith, on the brief).
Gregory J. Irwin argued the cause for respondent Robert S. Keppler Mason Contractors, LLC (Harwood Lloyd, LLC, attorneys; Mr. Irwin, of counsel and on the brief).
Renee Scrocca argued the cause for respondent Mercer Mutual Insurance Company (Testa, Heck, Scrocca & Testa, PA, attorneys; Justin R. White, on the brief).
Before Judges Messano and Ostrer.
Robert Occhifinto and NVE, Inc., (collectively, plaintiff), filed suit against numerous defendants claiming improper design and negligent construction of an addition to a warehouse Occhifinto owned in Andover. Mercer Mutual Insurance Company of New Jersey (Mercer), the insurer of the project's masonry contractor, defendant Robert S. Keppler Mason Contractors, LLC, a/k/a Robert S. Keppler Concrete Construction LLC (Keppler), provided Keppler with a defense to plaintiff's claims pursuant to a reservation of rights.
Mercer subsequently filed a declaratory judgment (DJ) action, asking the court to declare it had no duty to defend and indemnify Keppler with respect to plaintiff's claims. Plaintiff filed an answer and counter-claim seeking a declaration that Mercer was obligated to provide a defense and indemnification to Keppler under the policy. On cross-motions for summary judgment, the judge ordered that Mercer had "a duty to indemnify [Keppler] . . . to the extent that it is found liable for damages . . . caused . . . to the property of others." Mercer provided a defense to Keppler during the litigation.
A number of defendants settled with plaintiff immediately before trial, including defendants Houghton Quarty & Warr, LLC (HQW), the project architect; Bardo, Cox & Miller, Inc. (Bardo), the installer of the addition's steel deck; and Star Building Systems (Star), the manufacturer of the prefabricated steel addition. As a result, the case proceeded to trial against the project's general contractor, defendant Olivo Construction Co. LLC (Olivo), the successor general contractor, WW Construction and Masonry (WW), and Keppler.
At the conclusion of all evidence, Olivo and WW were dismissed from the litigation, leaving Keppler as the sole defendant. The case was submitted to the jury after the judge resolved disputes regarding which of the settling defendants would be placed on the jury verdict sheet for potential apportionment of liability. The jury ultimately found: Bardo not negligent; Keppler negligent, but its negligence was not a proximate cause of plaintiff's damages; and HQR, Star and plaintiff negligent, which negligence proximately caused plaintiff's damages. The jury apportioned the percentage of fault as follows: plaintiff – 50%; HQR – 25%; and Star – 25%. The jury awarded damages of $2, 827, 650. An order for judgment in favor of Keppler was entered on December 6, 2011.
Thereafter, plaintiff moved for an award of counsel fees against Mercer in the DJ action. By order dated May 3, 2012, the judge denied plaintiff's motion. This appeal ensued.
Before us, plaintiff asserts two essential points:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING KEPPLER TO ASSERT AN EMPTY CHAIR DEFENSE AS TO STAR BUILDING SYSTEMS
II. THE TRIAL COURT ERRED IN DENYING OCCHIFINTO FEES PURSUANT TO R. 4:42-9(a)(6)
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Before trial commenced, the judge denied plaintiff's motion in limine to preclude Keppler from asserting a so-called "empty chair defense." See e.g., Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 114 (2004) (describing the "'empty chair' defense" as one "in which a defendant shifts blame to a joint tortfeasor who is not in the courtroom"). We limit our recitation of the testimony at trial to permit consideration of the first point presented on appeal.
Plaintiff owned an old warehouse and subsequently renovated the building in 2001. Thereafter, it added a 14, 000 square foot addition (Phase I), utilizing Olivo as the general contractor and Keppler for the masonry work. A second addition (Phase II) was to be 90, 000 square feet, equally divided between two floors. Plaintiff chose to erect a pre-engineered steel building and again hired Olivo as the general contractor, who in turn hired Keppler to install the concrete. Plaintiff also hired HQW as the project architect based on Olivo's recommendation.
Plaintiff ordered the prefabricated steel structure from Star. The first floor consisted of a concrete slab on grade. The second floor, a mezzanine, consisted of an elevated slab constructed by using a steel form deck into which concrete was poured. Because of the topography of the land, the mezzanine was to connect directly to the ground floor of plaintiff's existing warehouse.
Unhappy with its performance, plaintiff terminated Olivo before the concrete was poured for the mezzanine floor; WW was hired as the new general contractor. In the winter of 2003, after construction was completed, plaintiff began to notice cracking and movement in the second floor of the building. Plaintiff's expert, Mark Berman of R.V. Buric Architecture, ...