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Keith v. Liberty Harbor Marina & Dry Dock, Inc.

Superior Court of New Jersey, Appellate Division

September 23, 2013

PAUL KEITH, Plaintiff-Appellant,
v.
LIBERTY HARBOR MARINA AND DRY DOCK, INC., [1] Defendant-Respondent

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 20, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9235-10.

Louis David Balk argued the cause for appellant (Balk & Cistrelli, P.A., attorneys; Henry J. Cistrelli, on the brief).

Shannon Garrahan argued the cause for respondent.

Before Judges Graves and Ashrafi.

PER CURIAM

Plaintiff Paul Keith appeals from the involuntary dismissal of his claims against defendant Liberty Harbor Marina and Dry Dock, Inc. (the Marina) at the conclusion of his case, and a judgment against him in the amount of $32, 989.91 on the Marina's counterclaim for an outstanding boat storage charge. Based on our examination of the record and the applicable law, we affirm.

The essential facts are not in dispute. In 2007, plaintiff owned a twenty-nine-foot powerboat, and he entered into a slip rental and storage agreement with the Marina. The agreement allowed him to use the Marina during the "summer term" and to store his boat on land during the "winter term." The initial charge for the period from April 15, 2007 to October 14, 2007, was $4161.50, and the agreement authorized the Marina to hold plaintiff's boat "as collateral security for the payment of all outstanding debts due and owing the Marina."

On November 16, 2008, plaintiff went to the Marina's storage yard to remove two batteries from his boat. Plaintiff used one of the Marina's ladders to access his boat. Unfortunately, the ladder gave way while plaintiff was removing one of the batteries, and he fell to the ground. In a letter to the Marina dated February 3, 2009, plaintiff stated: "I suffered a large cut/bruise on my head when I hit the ground and subsequently found my neck was fractured in three places." Plaintiff said he was "still suffering from the broken neck" and asked the Marina to notify its insurance carrier of the accident.

The Marina's insurance carrier assigned the matter to the Walter Nixon Group, an independent adjusting company, and Michael Walters conducted the investigation. During his investigation, Walters learned that plaintiff's boat remained at the Marina and there was an outstanding boat storage charge "in the low $20, 000's." Based on his communications with plaintiff's attorney and Donald Wuertz, the Marina's chief financial officer, Walters thought the parties reached a settlement agreement.

On August 26, 2010, Walters sent an email to Wuertz, which read as follows: "We've reached an overall agreement with Keith. He will pay the Marina $10, 000 and remove his boat within a short period. His attorney will memorialize the agreement in a letter to you." However, on August 27, 2010, Wuertz responded: "We disagree with the settlement. We will accept $10, 000 as a payment. Keith will not get his boat."

In his complaint filed on November 3, 2010, plaintiff stated "the gross settlement proceeds" in the amount of $35, 000 had been paid to his attorney, and his attorney would pay the sum of $10, 000 to the Marina "in full satisfaction of any outstanding storage fees" upon the release of his boat from the Marina. Plaintiff's complaint sought enforcement of the alleged settlement agreement, the release of his boat, and compensation "for any damage" to the boat. In its answer, the Marina denied that it agreed to accept $10, 000 in full settlement of plaintiff's outstanding boat storage charge, and the Marina counterclaimed for the full amount of the unpaid storage charge.

During a bench trial on July 3, 2012, plaintiff's attorney asked Walters to explain his understanding of the settlement agreement. Walters testified as follows:

A. The insurance company would pay $35, 000 to settle Mr. Keith's personal injury claim. And from that $35, 000 Mr. Keith would in turn pay $10, 000 to Liberty Harbor Marina to settle the outstanding ...

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