October 15, 2013
ROBERT HUTTING, Plaintiff-Respondent,
NEA MONI, INC., a Corporation of the State of New Jersey doing business and/or trading as ZACHARY'S RESTAURANT, a business entity, Defendants, and TRAVELERS INDEMNITY COMPANY OF AMERICA, Defendant/Third-Party Plaintiff-Appellant,
ZACHARY'S RESTAURANT, Third-Party Defendant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4470-11.
Stephen C. Cahir argued the cause for appellant (Law Office of William E. Staehle, attorneys; Mr. Cahir, on the brief).
Nicholas J. Leonardis argued the cause for respondent (Stathis & Leonardis, L.L.C., attorneys; Randi S. Greenberg, on the brief).
Before Judges Yannotti and St. John.
Defendant/third-party plaintiff Travelers Indemnity Company of America (Travelers) appeals the August 11, 2011 order entered in Middlesex County stating that plaintiff Robert Hutting is entitled to underinsured motorist (UIM) benefits from Travelers, that he is entitled to accept the tortfeasor's policy of $25, 000, and that UIM arbitration shall take place within ninety days, which arbitration shall be binding upon the parties; two orders entered in Monmouth County on November 7, 2012, one granting plaintiff's motion to name a neutral arbitrator and to compel Travelers to proceed to binding UIM arbitration, and a second order denying Travelers' motion to set aside the August 11, 2011 order compelling it to proceed to binding arbitration, and further denying Travelers' request to have the UIM claim decided in Superior Court. For the reasons stated herein, the appeal from the order of August 11, 2011 is dismissed; and the orders entered on November 7, 2012 are affirmed.
The matter in controversy arises out of a motor vehicle accident that occurred on March 5, 2010, where a car driven by Michael Drazner struck plaintiff as he attempted to cross Oceanport Avenue in Long Branch. Plaintiff had just left Zachary's Restaurant where it is alleged he consumed alcoholic beverages and was inebriated. Plaintiff initially filed suit against Drazner and the owner of the car Arthur Drazner in Monmouth County and settled for the $25, 000 policy limit. Prior to the settlement, plaintiff notified Travelers that Drazner had tendered its policy limits and Travelers provided plaintiff with approval to accept defendant's tender. Longworth v. Van Houten, 223 N.J.Super. 174 (App. Div. 1988).
Travelers then wrote to plaintiff suggesting that plaintiff had a viable dram shop claim. Plaintiff advised Travelers that there was no clear evidence for such a claim but that he would amend his complaint to include Zachary's as a defendant, but that he did not have the financial ability to pursue such a claim. Plaintiff then filed an order to show cause asserting why Travelers should not be compelled to designate a UIM arbitrator and schedule arbitration within thirty days. Travelers' answer in opposition to the order to show cause included a third-party complaint against Zachary's. Although Travelers initially opposed the application, it withdrew its opposition and agreed to arbitrate plaintiff's claim.
On August 11, 2011, Judge Travis L. Francis entered a consent order which, among other matters, scheduled arbitration.In September, venue was changed from Middlesex to Monmouth County. In November, plaintiff filed an amended complaint adding Nea Moni, Inc. t/a Zachary's Restaurant as a defendant. In March 2012, plaintiff filed a motion to enforce litigant's rights and have the court appoint a neutral arbitrator, which Travelers did not oppose. In April, Judge Linda Grasso Jones appointed a neutral arbitrator and ordered the parties to proceed to binding UIM arbitration within thirty days. In June, the neutral arbitrator withdrew, citing a potential conflict of interest.
On September 25, 2012, Travelers filed a motion to set aside the prior order compelling it to proceed to arbitration and directing that all issues be joined in Superior Court. Plaintiff opposed the motion to set aside the prior order and also cross-moved for an order appointing a new neutral arbitrator and compelling the arbitration by a certain date. On November 7, 2012, Judge Grasso Jones denied Travelers' application and granted plaintiff's application to name the new arbitrator, and ordered that the parties proceed to UIM arbitration by November 27, 2012. In December, Travelers moved for a stay of the arbitration pending appeal, which was granted.
Travelers argues on appeal that the motion judge erred in denying its request to have all of plaintiff's claims from the March 5, 2010 motor vehicle accident resolved in one forum and in one proceeding. We disagree. It is clear that Travelers consented to the August 11, 2011 order of Judge Francis which, among other things, ordered that "UIM arbitration shall be binding on all parties" and "UIM arbitration shall take place within ninety (90) days of the date of this order." Travelers contends that prior to the entry of the order, plaintiff's counsel represented that the plaintiff "had in excess of $500, 000 in out-of-pocket medical expenses in addition to his physical injuries." Travelers asserts that based on this representation it agreed to proceed to arbitration. It now contends that plaintiff's damages might be more than that amount. Accepting as true that this representation was the basis for Travelers' consent, this condition is not part of the record either before us or before Judge Francis. As such, we will not impose such a condition precedent or a condition subsequent into the order.
In light of this record, we are satisfied that Travelers' contention is not cognizable on appeal. "It is . . . clear that an 'order . . . consented to by the attorneys for each party . . . is . . . not appealable.'" N.J. Sch. Constr. Corp. v. Lopez, 412 N.J.Super. 298, 308 (App. Div. 2010) (quoting Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950)). Insofar as Travelers attempts to appeal the August 11, 2011 consent order of Judge Francis, that appeal is dismissed. We therefore affirm the two orders of Judge Grasso Jones entered on November 7, 2012, one granting plaintiff's motion to name a neutral arbitrator and to compel Travelers to proceed to binding UIM arbitration, and a second order denying Travelers' motion to set aside the August 11, 2011 order compelling it to proceed to binding arbitration, and further denying Travelers' request to have the UIM claim decided in Superior Court.
Dismissed in part, affirmed in part.