United States District Court, D. New Jersey
For MARYLAND CASUALTY COMPANY, Plaintiff: DAVID D. BLAKE, LEAD ATTORNEY, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, Cherry Hill, NJ.
For JOHNSON SERVICES, LLC., JOHNSON SPECIALIZED TRANSPORTATION, INC., Defendants, ThirdParty Plaintiffs, Cross Defendants: MARK J. MOLZ, LEAD ATTORNEY, HAINESPORT, NJ.
For Brian Piccolo, Insurance Specialists Coverage, Defendants, ThirdParty Defendants, Cross Claimants: DAVID J. GITTINES, JOHN R. GONZO, LEAD ATTORNEYS, Gonzo Law Groupo LLC, HACKENSACK, NJ.
Hon. Joseph H. Rodriguez, UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on Third Party Defendants' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, the motion will be denied.
The following facts are taken from the Plaintiff's Complaint, and, as such, the Court accepts them as true for the purposes of this Motion. On or about 2006-2007, Third Party Defendant Brian J. Piccolo and his insurance company, Third Party Defendant Insurance Coverage Specialists, LLC, began writing policies for Third Party Plaintiffs, Johnson Specialized Transportation, Inc. and Johnson Services, LLC. (Compl. ¶ 5.) In or about 2009, the State of New Jersey requested proof from Third Party Plaintiffs of Workman's Compensation Insurance. (Compl. ¶ 7.) Accordingly, Third Party Defendants provided such proof to the State of New Jersey that there was coverage. (Compl. ¶ 8.) The documents produced by Third Party Defendants were " part of the ongoing responsibility to procure and place insurance" for Third Party Plaintiffs " in accordance with the agreement between the parties." (Compl. ¶ 9.) On or about January
31, 2012, Ford Marshall was injured at the premises of Third Party Plaintiff's Johnson's Services and Johnson Specialized Transportation, Inc. (Compl. ¶ 6.)
Third Party Plaintiffs' counsel filed the Third Party Complaint against Third Party Defendants on October 7, 2013. (Dkt. No. 39.) In Count One of the Third Party Complaint, Third Party Plaintiffs claim that Third Party Defendants were negligent in obtaining the coverage, and/or failed to maintain the proper coverage, and/or failed to notify Third Party Plaintiffs that the coverage had been terminated or did not exist. (Compl. ¶ 11.) Third Party Plaintiffs further claim that Third Party Defendants were negligent in that they failed to provide insurance that properly covered all employees of Third Party Plaintiffs, thus exposing them to liability. (Compl. ¶ 13.) As a result, Third Party Plaintiffs were left without insurance and with a substantial claim pending for injuries sustained by employee Ford Marshall. (Compl. ¶ 14.) Count Two of the Third Party Complaint claims that Third Party Plaintiffs have suffered damages as a result of misrepresentation, omission of fact, and affirmative misrepresentation, and demands a Judgment against Third Party Defendants accordingly. (Compl. ¶ 19.)
Third Party Defendants' counsel then filed their Answer on November 20, 2013. (Dkt. No. 42.) After the Answer was filed, Third Party Plaintiffs had, at most, 120 days, or until March 20, 2014, to provide the requisite Affidavit of Merit. Third Party Plaintiffs failed to file the Affidavit of Merit by March 20, 2014. During a March 28, 2014 telephonic case management conference with Magistrate Judge Ann Marie Donio, counsel for Third Party Defendants indicated that they would be filing a motion to dismiss the Third Party Complaint for failure to produce the required Affidavit of Merit during the allotted period of time. (Def. Br. Mot. Dismiss, Certification of Counsel ¶ 5.) However, Third Party Defendants' counsel filed an Affidavit of Merit for Carl Thomas on April 15, 2014, twenty-six days past the last possible due date. (Dkt. No. 50.)
Federal Rule of Civil Procedure 12(c) governs a motion for judgment on the pleadings. Fed.R.Civ.P. 12(c). Under Rule 12(c), judgment is proper when the movant clearly shows " that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Rosenau v. Unifund Corp.,539 F.3d 218, 221 (3d Cir. 2008) (citing Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988)). When a motion under Rule 12(c) is based on a plaintiff's failure to state a claim upon which relief can be granted, it is reviewed ...