ANTHONY LATTANZIO VS. QUALITY TECHNOLOGIES SERVICES, LLC VS. HULL-VICCI CONSTRUCTION CORP. (L-1143-11, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 22, 2018
• Docket: A-5002-15T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5002-15T4

ANTHONY LATTANZIO and LINDA LATTANZIO,

Plaintiffs,

v.

QUALITY TECHNOLOGIES SERVICES, LLC, KAJIMA BUILDING AND DESIGN GROUP, SCHOLES ELECTRIC CO., KNOBLOCH PLUMBING AND HEATING,

Defendants,

and

QUALITY TECHNOLOGIES SERVICES, LLC,

Defendant/Third-Party Plaintiff-Respondent,

HULL-VICCI CONSTRUCTION CORP.,

Third-Party Defendant/ Appellant. _______________________________

Submitted September 25, 2017 - Decided August 22, 2018

Before Judges Accurso, O'Connor and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1143-11.

Braff, Harris, Sukonek & Maloof, attorneys for appellant (Jerald F. Oleske and Robert M. Brigantic, on the briefs).

Margolis Edelstein, attorneys for respondent (Colleen M. Ready and Thomas L. Grimm, on the brief).

PER CURIAM

In this breach of contract action, third-party defendant

Hull-Vicci Construction Corp. appeals from a judgment of

$554,833.33 plus pre-judgment interest in favor of third-party

plaintiff Quality Technologies Services, LLC following a bench

trial. Because the factual findings and legal conclusions of

the trial judge are supported by substantial, credible evidence

in the trial record, we affirm.

This appeal arises out of a Hull-Vicci employee's fall from

a scaffold in the course of demolition work for Quality

Technologies in a building Quality occupied in Jersey City.

Following a jury verdict in favor of the construction worker,

Quality, whose negligence the jury found attributed to fifty-

five percent of the worker's losses, paid the entire judgment of

$1,512,500, two-thirds of which was to be reimbursed by its co-

defendants. Quality pursued this action against Hull-Vicci to

recover its one-third share of the judgment and $152,000 in

2 A-5002-15T4 defense costs it incurred in defending the suit, based on Hull-

Vicci's failure to obtain the additional insured coverage

specified in the parties' contract.

The contract required Hull-Vicci to procure a CGL policy

"on a coverage form at least as broad as the most recent edition

of Commercial General Liability Coverage Form (CG 00 01) as

published by the Insurance Services Office, Inc.," in the

aggregate limit of at least $3,000,000, naming Quality as an

additional insured "using an endorsement form at least as broad

as the ISO Additional Insured Endorsement Form CG 20 10 11 85."

Hull-Vicci does not dispute that it failed to obtain additional

insured coverage as broad as that provided by Form CG 20 10 11

85, which all agree would provide coverage for Quality's own

negligence. Indeed, the parties stipulated that the policy

language of the two additional insured endorsements Hull-Vicci

had in place at the time of the accident were more restrictive

than the Form CG 20 10 11 85 endorsement and did not comply with

the insurance requirements in the parties' contract.

Specifically, both endorsements limited coverage to injuries

caused in whole or part by Hull-Vicci or those acting on its

behalf. They provided no coverage to Quality for its own

negligence.

3 A-5002-15T4 Following the verdict in the underlying action, the parties

cross-moved for summary judgment on Quality's breach of contract

claim. The motion judge had no hesitation finding Hull-Vicci

breached the contract by failing to procure the insurance

clearly and unambiguously specified in the parties' contract.

The judge withheld summary judgment, however, based on a dispute

of fact underlying Hull-Vicci's defense of impossibility of

performance.

Specifically, the parties submitted conflicting

certifications from persons knowledgeable about commercial

insurance regarding the availability of the coverage called for

in the contract. Hull-Vicci's insurance agent averred the

coverage was not available in the New Jersey market at the time

of the accident. He claimed the endorsement was no longer in

existence and it was not possible to procure an equivalent.

Quality's insurance expert certified it was possible to obtain

an additional insured endorsement with coverage equivalent to

the form specified in the contract. Because the conflicting

certifications precluded resolution of Hull-Vicci's

impossibility defense on summary judgment, the motion judge

denied both motions without prejudice and permitted the parties

to take discovery on the issue.

4 A-5002-15T4 Another judge eventually heard two days of testimony to

resolve the issue reserved on the motion, that is, whether Hull-

Vicci should be relieved of the obligation it undertook in the

contract to obtain the additional insured endorsement specified,

by virtue of the impossibility of performance. The judge also

heard testimony on Hull-Vicci's additional defenses, that the

claim should be dismissed for failure to join an indispensable

party, that the contract had not been signed prior to the

accident and thus was not in force on that date, that Quality

waived provision of an additional insured endorsement ISO Form

CG 20 10 11 85 or its equivalent, that Hull-Vicci did not breach

the contract, that Pennsville Shopping Center Corp. v. American

Motorists Ins. Co., 315 N.J. Super. 519 (App. Div. 1998) bars

the claim and that Quality had no damages.

Six witnesses testified, the vice president of Hull-Vicci,

who executed the contract on its behalf; Quality's vice

president of facilities, who executed the contract for Quality;

Quality's facility manager and its assistant manager responsible

for obtaining certificates of insurance confirming additional

insured coverage provided to Quality; the customer service

representative of Hull-Vicci's insurance agent; and the agency's

vice president of commercial lines, who testified about the

coverage available in the market at the time of the accident but

5 A-5002-15T4 was not offered as an expert. We highlight only those portions

of the testimony required to provide context for our decision.

Hull-Vicci's vice president testified the company had

performed general contracting work for Quality at various

locations over a period of more than twenty years and did so

both before and after the accident. He maintained he was the

only person at Hull-Vicci to have reviewed the contract before

he signed it; that he could not recall whether he read or

reviewed the provisions relating to Hull-Vicci's obligation to

obtain insurance coverage for Quality before signing; that he

was not aware at that time as to whether Hull-Vicci's CGL policy

with Penn National had an additional insured endorsement; and

that he never sought the opinion of legal counsel or any

insurance agent about the contract's insurance requirements. He

also testified he did not sign the contract until well after the

accident, although he acknowledged the contract provides it was

made and entered into on a date preceding the accident, and that

when Hull-Vicci began its work on the project, he believed it

was performing the work referenced in the contract.

Quality's vice president of facilities testified that

Quality's counsel drafted the contract, and that Hull-Vicci did

not raise any questions or concerns about its terms or

conditions. He claimed Hull-Vicci did not seek to negotiate the

6 A-5002-15T4 terms and never asked to condition the contract on Hull-Vicci's

ability to procure the insurance specified. He did not remember

the date he signed the contract but noted its effective date was

printed on the first page.

Quality's assistant facilities manager testified he sent

Hull-Vicci sample certificates of insurance it was to use, one

for Quality and one for its landlord, asking that the company

update the certificates using "the verbiage" on each sample. He

claimed he received a completed certificate for Quality from

Hull-Vicci's insurance agent with limits $2,000,000 below that

required. He accordingly sent an email to Hull-Vicci's vice

president returning the certificate provided for Quality,

explaining the discrepancy as to limits and asking that the

certificate be corrected and reissued. He wrote: "the verbiage

on the [certificate of insurance] is fine, it's only the limits

amount that need to be updated."

The customer services representative for Hull-Vicci's

insurance agent testified she was the representative assigned to

Hull-Vicci's account and had issued certificates of insurance at

its request for many years. She prepared a certificate of

insurance for Quality at Hull-Vicci's request, relying solely on

information supplied by the company, and sent it to the

assistant facilities manager at Quality. She testified she was

7 A-5002-15T4 not provided with either a copy of the contract or its insurance

requirements. She simply issued the certificate using the

sample Hull-Vicci provided. She further testified she reissued

the certificate at Hull-Vicci's request, clarifying that the

company maintained a $1,000,000 primary policy and a $2,000,000

umbrella, for a combined total of $3,000,000.

The most significant testimony was offered by the vice

president of the commercial lines department of Professional

Insurance Associates, Inc., Hull-Vicci's insurance agent.

Employed as an insurance agent licensed to place commercial

general liability insurance for thirty-eight years, he testified

he was both familiar with Hull-Vicci and the coverage available

under CGL policies with an additional insured endorsement. He

testified that to his knowledge at the time of the accident in

2010, the only additional insured endorsement available for

purchase from insurers was the 2004 edition of CG 20 10, which

would not have provided coverage for Quality's own negligence.

He claimed the 1985 version of the endorsement was no longer in

use after 1995.

The agent conceded, however, that Hull-Vicci never asked

him to secure the coverage provided by the 1985 version of the

endorsement and he never tried to do so. When asked by the

court about the availability of a manuscript endorsement as

8 A-5002-15T4 broad as the coverage provided in the 1985 version, he replied,

"I suppose that could be done," and "I guess somebody would do

that." He conceded he did not know how much such coverage would

cost, but agreed with Hull-Vicci's counsel that it was

"presumably" expensive, estimating it might be more than triple

the cost.

Hull-Vicci's annual premium for the CGL policy in effect at

the time of the accident was under $20,000 according to

documents admitted into evidence at the hearing. The parties

stipulated that ISO Form CG 20 10 11 85 was not illegal, was

never withdrawn per the New Jersey Department of Banking and

Insurance and "can still be used" in New Jersey. Counsel for

Hull-Vicci explained at the outset of the hearing that the

company was not contending it was impossible to obtain the

endorsement but was "not conceding impracticality."

After hearing the testimony, the judge issued a written

opinion finding the contract clear and unambiguous and rejecting

each of Hull-Vicci's defenses to performance. Specifically, the

judge found our holding in Pennsville, that an additional

insured endorsement in a shopping center tenant's policy

provided no coverage for the landlord for a slip-and-fall claim

in the parking lot in light of the express disavowal of the

tenant's liability for such claims in the lease, 315 N.J. Super.

9 A-5002-15T4 at 521, 523, had no applicability here. The judge found Hull-

Vicci's reliance on Pennsville "ignores the clear language of

the contract requiring an additional insured endorsement of Form

85 or equivalent," expressing the parties' explicit intent that

Hull-Vicci provide "coverage to [Quality] for its 'concurrent

and sole negligence,'"1 (quoting the contract, emphasis added).

See Franklin Mut. Ins. Co. v. Sec. Indem. Ins. Co., 275 N.J.

Super. 335, 340-41 (App. Div. 1994).

The judge dismissed Hull-Vicci's arguments as to the

effective date of the contract and waiver as unsupported by the

1 The exact language of the contract provides:

III. GENERAL PROVISIONS (APPLICABLE TO ABOVE)

. . . .

D. Additional Insured. The CGL and Business Automobile Liability policies each must name the Owner and the other Indemnified Parties identified in Section 7 of the Agreement, as Additional Insureds, using an endorsement form at least as broad as the ISO Additional Insured Endorsement Form CG 20 10 11 85 or ISO Additional Insured Endorsement CG 20 10 10 01 if used with ISO Form 20 37 10 01 (or their combined equivalent). It is the intent of the parties to this Contract that this Additional Insured status shall include coverage for complete operations and for the Owner's concurrent and sole negligence.

[Emphasis supplied.]

10 A-5002-15T4 evidence. He found the contract effective as of the June 7,

2010 date specified in the contract, consistent with the

testimony of the individuals who signed it, Hull-Vicci's vice

president and Quality's vice president for facilities. See

State Troopers Fraternal Ass'n v. State, 149 N.J. 38, 49 (1997)

(holding determination of the date controlling application of a

contract "must be derived from the intent of the parties, and if

no subjective intent is apparent or ascertainable, that intent

must be based on the objective language of the contract").

As to waiver, the judge found there was no view of the

parties' dealings that would support Quality having relinquished

its right to ISO Additional Insured Endorsement Form CG 20 10 11

85 by its acceptance of the certificates of insurance provided

by Hull-Vicci.2 See Cty. of Morris v. Fauver, 153 N.J. 80, 104-

05 (1998) (noting waiver presupposes full knowledge of a right

and its intentional surrender). The judge found the testimony

made clear the individuals dealing with the certificates for the

parties, Hull-Vicci's vice president and Quality's assistant

facilities manager, "were unaware of insurance niceties and

2 We note the certificate Hull-Vicci relies on to support its waiver argument on appeal is not the one for Quality but the one for Quality's landlord. Given counsel's obvious familiarity with the file, it is hard to accept the error was one of inadvertence.

11 A-5002-15T4 inexperienced in insurance." He found they "had little

understanding of insurance requirements" and "were unfamiliar

with the insurance provisions, endorsements and forms referred

to in the contract," and thus the facts could not support

waiver.

The judge found the testimony of Hull-Vicci's insurance

agent made plain beyond any doubt that Hull-Vicci's performance

under the parties' contract was neither impossible nor

impracticable. See Petrozzi v. City of Ocean City, 433 N.J.

Super. 290, 302 (2013) (quoting Connell v. Parlavecchio, 255

N.J. Super. 45, 49 (App. Div. 1992)) (noting either circumstance

a complete defense "where a fact essential to performance is

assumed by the parties but does not exist at the time for

performance"). Noting the Model Jury Charge on impossibility

required a defendant to show four things: first, that the event

defendant claims made performance impossible actually occurred;

second, that it made keeping defendant's promise impossible;

third, that neither party reasonably foresaw the event when they

made the contract; and fourth, that the event making performance

impossible was beyond defendant's control and was not its fault,

see Model Jury Charges (Civil), 4.10N, "Affirmative Defenses"

(approved Nov. 1999), the judge found Hull-Vicci could prove

none of them.

12 A-5002-15T4 Most important, the judge found the agent's testimony made

clear "no supervening event occurred after the contract was

executed" because "[t]he status of Form 85 was the same before

and after [Hull-Vicci's] contractual undertaking." The court

noted "[n]othing happened regarding Form 85 after the contract

was signed." Based on the testimony of Hull-Vicci's own

insurance agent, the judge found "[t]he defense of impossibility

of performance lacks merit."3

The judge rejected Hull-Vicci's claim of mutual mistake

because the contract unambiguously required Hull-Vicci to secure

additional insured coverage at least as broad as that provided

by ISO Additional Insured Endorsement Form CG 20 10 11 85, and

there was no evidence presented at the hearing "that any party

had any understanding different from the clear terms of

contract, no evidence that [Quality] was laboring under any

3 Hull-Vicci's assertion that the trial judge's rejection of its "primary substantive defense to this claim, i.e., impossibility" was premised on the opinion of an expert who did not testify based on a stray remark in the opinion is contrary to the record. The judge detailed his several reasons for finding Hull-Vicci could not establish the defense of impossibility of performance, including its own stipulations that the coverage was not impossible to obtain, that ISO Form CG 20 10 11 85 was not illegal, was never withdrawn per the New Jersey Department of Banking and Insurance and "can still be used" in New Jersey. The court's passing reference to an expert's opinion included in a trial brief but ultimately not called to testify, is an inconsequential flaw in an otherwise sound opinion.

13 A-5002-15T4 misapprehension of fact, and no evidence of fraud or

unconscionable conduct." The judge found "[o]ne need not

understand insurance arcana to be bound to the clear meaning of

a contract containing such terms. . . . [T]here was no mutual

mistake."

The judge likewise rejected Hull-Vicci's argument that the

contract was internally contradictory as it required the most

recent ISO CGL form but an "outdated and unavailable" additional

insured endorsement, and that because Hull-Vicci maintained two

"additional insured endorsements in current ISO form" it could

not be considered in breach. The judge found no inherent

ambiguity in the contract because the provision requiring Hull-

Vicci to maintain comprehensive general liability insurance is

plainly "separate and distinct from the provision for additional

insurance." Because the two additional insured endorsements

Hull-Vicci maintained did not provide the additional insured

coverage it promised to Quality, and the court had already found

its performance was not excused by impossibility,

impracticability or mutual mistake, the judge deemed this claim

as without merit.

Finally, the judge dispatched as utterly without merit

Hull-Vicci's arguments that the claim should be dismissed

because Quality had failed to name an indispensable party, Hull-

14 A-5002-15T4 Vicci's CGL carrier, Penn National, and could not show damages.

The judge noted Hull-Vicci provided no support for its novel

argument that Quality's breach of contract claim "is more aptly

characterized as a challenge to Penn's coverage determination"

requiring Penn National's participation in this action. As to

damages, the judge found Quality proved Hull-Vicci breached its

contract, causing Quality to be without defense or indemnity for

Lattanzio's suit; resulting in damages of $554,833.33, one-third

of the aggregate loss, plus pre-judgment interest. Hull-Vicci's

assertion that Quality's co-defendants are obligated to pay

Quality more than their two-thirds share of the aggregate loss

finds no support in the record.

Hull-Vicci appeals, reprising the arguments it made to the

trial court. We find none of these arguments of sufficient

merit to warrant discussion in a written opinion. See R. 2:11-

3(e)(1)(E). A review of the hearing testimony makes plain that

none of Hull-Vicci's defenses to this straightforward claim has

any merit and several border on frivolous. As to its primary

defense, impossibility of performance, Hull-Vicci explicitly

conceded at trial that it was not asserting that additional

insured coverage equivalent to the ISO Additional Insured

Endorsement Form CG 20 10 11 85 specified in the contract was

impossible to obtain and it put on no proofs as to the

15 A-5002-15T4 impracticability of performance. Its insurance witness, not

presented as an expert, conceded a manuscript endorsement

matching the coverage was possible and Hull-Vicci presented

nothing to suggest the premium was in any way cost prohibitive

or unaffordable.

Moreover, as the trial judge found, nothing changed as to

the availability of that coverage following the effective date

of the contract. We agree with the court that the absence of

any supervening event renders the defense unavailable to Hull-

Vicci. See Facto v. Pantagis, 390 N.J. Super. 227, 231 (App.

Div. 2007).

Because a review of the transcript reveals substantial

evidence supporting the court's findings and conclusions, see

Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011),

we affirm, substantially for the reasons expressed in Judge

Paley's written opinion of June 10, 2016.

Affirmed.

16 A-5002-15T4