NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NOS. A-4419-17T4 A-4547-17T4
KENNETH McDONALD, Principal by his Attorney-in-Fact, MARY GILYARD,
Plaintiffs,
v.
MANUEL PARADA, NATIONAL RETAIL SYSTEMS, INC., KEYSTONE FREIGHT CORPORATION, NATIONAL RETAIL TRANSPORTATION, INC., AGF MARINE CONSULTANTS, INC., MARK ANDERSON, and MHP TRUCKING, LLC,
Defendants,
and
INTERPOOL, INC., d/b/a TRAC INTERMODAL, INC., and TRAC LEASE, INC.,
Defendants/Third-Party Plaintiffs-Respondents, v.
HARTFORD FIRE INSURANCE COMPANY, ACE AMERICAN INSURANCE COMPANY, and HANOVER INSURANCE COMPANY,
Third-Party Defendants,
DARWIN NATIONAL ASSURANCE COMPANY,
Third-Party Defendant- Appellant,
AMERICAN MARITIME SERVICES OF NJ, INC. d/b/a INTEGRATED INDUSTRIES CORPORATION, and GARDEN STATE INTERMODAL REPAIR,
Defendants/Third-Party Plaintiffs,
DARWIN NATIONAL ASSURANCE COMPANY/ALLIED WORLD, MARKEL INSURANCE COMPANY, EVANSTON INSURANCE COMPANY, NAVIGATORS INSURANCE COMPANY, JBL TRINITY GROUP LTD., and CAPACITY MARINE
A-4419-17T4 2 CORPORATION,
Third-Party Defendants. __________________________________
KENNETH McDONALD, Principal by his Attorney-in-Fact, MARY GILYARD,
MANUEL PARADA, NATIONAL RETAIL SYSTEMS, INC., KEYSTONE FREIGHT CORPORATION, NATIONAL RETAIL TRANSPORTATION, INC., AGF MARINE CONSULTANTS, INC., MARK ANDERSON, and MHP TRUCKING, LLC,
INTERPOOL, INC., d/b/a TRAC INTERMODAL, INC., and TRAC LEASE, INC.,
HARTFORD FIRE INSURANCE COMPANY, ACE AMERICAN INSURANCE COMPANY, DARWIN NATIONAL ASSURANCE
A-4419-17T4 3 COMPANY, and HANOVER INSURANCE COMPANY,
AMERICAN MARITIME SERVICES OF NJ, INC. d/b/a INTEGRATED INDUSTRIES CORPORATION, and GARDEN STATE INTERMODAL REPAIR,
Defendants/Third-Party Plaintiffs-Appellants,
DARWIN NATIONAL ASSURANCE COMPANY/ALLIED WORLD, MARKEL INSURANCE COMPANY, EVANSTON INSURANCE COMPANY, NAVIGATORS INSURANCE COMPANY, JBL TRINITY GROUP LTD., and CAPACITY MARINE CORPORATION,
Third-Party Defendants- Respondents. __________________________________
Argued September 11, 2019 – Decided October 2, 2019
Before Judges Haas, Mayer and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0208-14.
A-4419-17T4 4 Charles Dewey Cole, Jr. argued the cause for appellant Darwin National Assurance Company in A-4419-17 (Newman Myers Kreines Gross Harris, attorneys; Charles Dewey Cole, Jr., on the briefs).
John J. Levy argued the cause for respondents Interpool, Inc., TRAC Intermodal, Inc. and TRAC Lease, Inc., in A-4419-17 (Montgomery, McCracken, Walker & Rhoads, LLP, attorneys; Gerald J. Corcoran and Alexandra S. Jacobs, on the brief).
Joseph J. Perrone argued the cause for appellant American Maritime Services of NJ, Inc., d/b/a Integrated Industries, in A-4547-17 (Giuliano McDonnell & Perrone, LLP, attorneys; Joseph J. Perrone, Kevin P. Albertson, and Matthew M. Gorden, on the briefs).
Paul Piantino III argued the cause for respondent Evanston Insurance Company in A-4547-17 (White and Williams, LLP, attorneys; Paul Piantino III and James R. Hearon, on the brief).
Debra Miller Krebs argued the cause for respondent JBL Trinity Group, Ltd. in A-4547-17 (Keidel, Weldon & Cunningham, LLP, attorneys; Debra Miller Krebs, on the brief).
PER CURIAM
In these appeals, calendared back-to-back and consolidated for the
purpose of issuing a single opinion, we review the motion judge's January 20,
2017 omnibus order denying a motion for summary judgment filed by
defendant/third-party plaintiff American Maritime Services of NJ, Inc. d/b/a
A-4419-17T4 5 Integrated Industries (AMS), seeking a declaration of coverage from third-party
defendant Evanston Insurance Company (Evanston), one of AMS's insurance
providers, for a personal injury action brought by plaintiff Kenneth McDonald.
AMS also appeals from a February 17, 2017 order granting a motion filed by its
insurance broker, third-party defendant JBL Trinity Group, Ltd. (JBL), to
dismiss AMS's third-party complaint for failure to file an affidavit of merit
(AOM) pursuant to N.J.S.A. 2A:53A-27.
Separately, third-party defendant Darwin National Assurance Company
(Darwin) appeals from the January 20, 2017 omnibus order denying its motion
for summary judgment, seeking a declaration that it was not obligated to defend
and indemnify defendants/third-party plaintiffs Interpool, Inc. d/b/a TRAC
Intermodel, Inc. and TRAC Lease, Inc. (TRAC) in the personal injury action.
Darwin also appeals from an April 27, 2018 order determining Darwin failed to
comply with the January 20, 2017 omnibus order and awarding defense fees and
costs to TRAC as a result.
We reverse and remand all orders on appeal because the motion judge
failed to make the required findings of facts and conclusions of law necessary
for our review.
A-4419-17T4 6 We provide a brief factual background to give context to the matters on
appeal. Plaintiff suffered personal injuries when he was struck by a wheel that
disengaged from a chassis. The chassis was attached to a tractor trailer truck
owned by defendant National Retail Transportation, Inc. (NRT).
The chassis was owned by TRAC. TRAC leased its chassis to NRT. NRT
placed a cargo container on the leased chassis and attached the chassis to its
tractor trailer truck. An employee of NRT, defendant Manuel Parada, was
driving the tractor trailer truck at the time of the accident.
AMS maintains and repairs chassis. AMS surveyed TRAC's chassis in
accordance with a written maintenance and repair agreement less than a month
before plaintiff's accident.
Plaintiff filed a negligence claim against several defendants. In turn,
various defendants filed third-party complaints.
In its third-party complaint, AMS sued its primary insurance carrier,
Darwin, and its excess insurance carrier, Evanston, seeking a coverage
determination that AMS was entitled to defense and indemnification from the
A-4419-17T4 7 insurance companies for plaintiff's claims. Darwin and Evanston denied
coverage.1
In the event there was no coverage available to AMS under the insurance
policies, AMS also filed a third-party claim against its insurance broker, JBL,
alleging negligence for failing to procure proper insurance coverage for AMS.
AMS moved for summary judgment against Evanston. Evanston filed a
cross-motion for summary judgment seeking a declaration that its policy did not
cover AMS and there was no obligation to defend or indemnify AMS for
plaintiff's personal injury action. The motion judge denied AMS's motion and
granted Evanston's cross-motion. The judge concluded AMS was barred from
coverage under the auto exclusion in Evanston's policy.
JBL filed a motion to dismiss AMS's third-party complaint, claiming AMS
failed to serve an AOM. The trial court granted JBL's motion, finding an AOM
was required.
TRAC also filed a third-party complaint against various defendants.
TRAC sought a judicial determination that it was entitled to defense and
indemnification from Darwin for plaintiff's personal injury action.
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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 NOS. A-4419-17T4 A-4547-17T4
KENNETH McDONALD, Principal by his Attorney-in-Fact, MARY GILYARD,
Plaintiffs,
v.
MANUEL PARADA, NATIONAL RETAIL SYSTEMS, INC., KEYSTONE FREIGHT CORPORATION, NATIONAL RETAIL TRANSPORTATION, INC., AGF MARINE CONSULTANTS, INC., MARK ANDERSON, and MHP TRUCKING, LLC,
Defendants,
and
INTERPOOL, INC., d/b/a TRAC INTERMODAL, INC., and TRAC LEASE, INC.,
Defendants/Third-Party Plaintiffs-Respondents, v.
HARTFORD FIRE INSURANCE COMPANY, ACE AMERICAN INSURANCE COMPANY, and HANOVER INSURANCE COMPANY,
Third-Party Defendants,
DARWIN NATIONAL ASSURANCE COMPANY,
Third-Party Defendant- Appellant,
AMERICAN MARITIME SERVICES OF NJ, INC. d/b/a INTEGRATED INDUSTRIES CORPORATION, and GARDEN STATE INTERMODAL REPAIR,
Defendants/Third-Party Plaintiffs,
DARWIN NATIONAL ASSURANCE COMPANY/ALLIED WORLD, MARKEL INSURANCE COMPANY, EVANSTON INSURANCE COMPANY, NAVIGATORS INSURANCE COMPANY, JBL TRINITY GROUP LTD., and CAPACITY MARINE
A-4419-17T4 2 CORPORATION,
Third-Party Defendants. __________________________________
KENNETH McDONALD, Principal by his Attorney-in-Fact, MARY GILYARD,
MANUEL PARADA, NATIONAL RETAIL SYSTEMS, INC., KEYSTONE FREIGHT CORPORATION, NATIONAL RETAIL TRANSPORTATION, INC., AGF MARINE CONSULTANTS, INC., MARK ANDERSON, and MHP TRUCKING, LLC,
INTERPOOL, INC., d/b/a TRAC INTERMODAL, INC., and TRAC LEASE, INC.,
HARTFORD FIRE INSURANCE COMPANY, ACE AMERICAN INSURANCE COMPANY, DARWIN NATIONAL ASSURANCE
A-4419-17T4 3 COMPANY, and HANOVER INSURANCE COMPANY,
AMERICAN MARITIME SERVICES OF NJ, INC. d/b/a INTEGRATED INDUSTRIES CORPORATION, and GARDEN STATE INTERMODAL REPAIR,
Defendants/Third-Party Plaintiffs-Appellants,
DARWIN NATIONAL ASSURANCE COMPANY/ALLIED WORLD, MARKEL INSURANCE COMPANY, EVANSTON INSURANCE COMPANY, NAVIGATORS INSURANCE COMPANY, JBL TRINITY GROUP LTD., and CAPACITY MARINE CORPORATION,
Third-Party Defendants- Respondents. __________________________________
Argued September 11, 2019 – Decided October 2, 2019
Before Judges Haas, Mayer and Enright.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0208-14.
A-4419-17T4 4 Charles Dewey Cole, Jr. argued the cause for appellant Darwin National Assurance Company in A-4419-17 (Newman Myers Kreines Gross Harris, attorneys; Charles Dewey Cole, Jr., on the briefs).
John J. Levy argued the cause for respondents Interpool, Inc., TRAC Intermodal, Inc. and TRAC Lease, Inc., in A-4419-17 (Montgomery, McCracken, Walker & Rhoads, LLP, attorneys; Gerald J. Corcoran and Alexandra S. Jacobs, on the brief).
Joseph J. Perrone argued the cause for appellant American Maritime Services of NJ, Inc., d/b/a Integrated Industries, in A-4547-17 (Giuliano McDonnell & Perrone, LLP, attorneys; Joseph J. Perrone, Kevin P. Albertson, and Matthew M. Gorden, on the briefs).
Paul Piantino III argued the cause for respondent Evanston Insurance Company in A-4547-17 (White and Williams, LLP, attorneys; Paul Piantino III and James R. Hearon, on the brief).
Debra Miller Krebs argued the cause for respondent JBL Trinity Group, Ltd. in A-4547-17 (Keidel, Weldon & Cunningham, LLP, attorneys; Debra Miller Krebs, on the brief).
PER CURIAM
In these appeals, calendared back-to-back and consolidated for the
purpose of issuing a single opinion, we review the motion judge's January 20,
2017 omnibus order denying a motion for summary judgment filed by
defendant/third-party plaintiff American Maritime Services of NJ, Inc. d/b/a
A-4419-17T4 5 Integrated Industries (AMS), seeking a declaration of coverage from third-party
defendant Evanston Insurance Company (Evanston), one of AMS's insurance
providers, for a personal injury action brought by plaintiff Kenneth McDonald.
AMS also appeals from a February 17, 2017 order granting a motion filed by its
insurance broker, third-party defendant JBL Trinity Group, Ltd. (JBL), to
dismiss AMS's third-party complaint for failure to file an affidavit of merit
(AOM) pursuant to N.J.S.A. 2A:53A-27.
Separately, third-party defendant Darwin National Assurance Company
(Darwin) appeals from the January 20, 2017 omnibus order denying its motion
for summary judgment, seeking a declaration that it was not obligated to defend
and indemnify defendants/third-party plaintiffs Interpool, Inc. d/b/a TRAC
Intermodel, Inc. and TRAC Lease, Inc. (TRAC) in the personal injury action.
Darwin also appeals from an April 27, 2018 order determining Darwin failed to
comply with the January 20, 2017 omnibus order and awarding defense fees and
costs to TRAC as a result.
We reverse and remand all orders on appeal because the motion judge
failed to make the required findings of facts and conclusions of law necessary
for our review.
A-4419-17T4 6 We provide a brief factual background to give context to the matters on
appeal. Plaintiff suffered personal injuries when he was struck by a wheel that
disengaged from a chassis. The chassis was attached to a tractor trailer truck
owned by defendant National Retail Transportation, Inc. (NRT).
The chassis was owned by TRAC. TRAC leased its chassis to NRT. NRT
placed a cargo container on the leased chassis and attached the chassis to its
tractor trailer truck. An employee of NRT, defendant Manuel Parada, was
driving the tractor trailer truck at the time of the accident.
AMS maintains and repairs chassis. AMS surveyed TRAC's chassis in
accordance with a written maintenance and repair agreement less than a month
before plaintiff's accident.
Plaintiff filed a negligence claim against several defendants. In turn,
various defendants filed third-party complaints.
In its third-party complaint, AMS sued its primary insurance carrier,
Darwin, and its excess insurance carrier, Evanston, seeking a coverage
determination that AMS was entitled to defense and indemnification from the
A-4419-17T4 7 insurance companies for plaintiff's claims. Darwin and Evanston denied
coverage.1
In the event there was no coverage available to AMS under the insurance
policies, AMS also filed a third-party claim against its insurance broker, JBL,
alleging negligence for failing to procure proper insurance coverage for AMS.
AMS moved for summary judgment against Evanston. Evanston filed a
cross-motion for summary judgment seeking a declaration that its policy did not
cover AMS and there was no obligation to defend or indemnify AMS for
plaintiff's personal injury action. The motion judge denied AMS's motion and
granted Evanston's cross-motion. The judge concluded AMS was barred from
coverage under the auto exclusion in Evanston's policy.
JBL filed a motion to dismiss AMS's third-party complaint, claiming AMS
failed to serve an AOM. The trial court granted JBL's motion, finding an AOM
was required.
TRAC also filed a third-party complaint against various defendants.
TRAC sought a judicial determination that it was entitled to defense and
indemnification from Darwin for plaintiff's personal injury action.
1 Eventually, Darwin agreed to defend and indemnify AMS under a reservation of rights. A-4419-17T4 8 Darwin filed a motion for summary judgment seeking a declaration that
its policy did not apply to TRAC and there was no obligation to defend or
indemnify TRAC. TRAC cross-moved for summary judgment. The trial court
denied Darwin's motion and granted TRAC's cross-motion, concluding TRAC
was entitled to coverage under Darwin's insurance policy. Despite the court's
order, Darwin failed to provide coverage to TRAC.
Plaintiff subsequently settled his personal injury action. TRAC then
moved for judgment against Darwin seeking litigation fees and costs associated
with defending plaintiff's personal injury claim and pursuing its coverage claim
against Darwin. A different motion judge granted TRAC's motion, finding
Darwin failed to comply with the January 20, 2017 omnibus order and awarding
litigation costs and attorney's fees to TRAC.
On appeal, Darwin and AMS repeat the arguments presented to the trial
court. However, the motion judge failed to set forth findings of fact and
conclusions of law to allow our review of the issues presented in these appeals.
Pursuant to Rule 1:7-4(a), "the court shall . . . find the facts and state its
conclusions of law thereon . . . on every motion decided by a written order that
is appealable as of right[.]" See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289,
300-01 (App. Div. 2009). The absence of an adequate expression of a trial
A-4419-17T4 9 judge's rationale "constitutes a disservice to the litigants, the attorneys, and the
appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).
The parties suggest we discern the judge's factual findings and legal
conclusions based on the lengthy colloquy among the judge and counsel during
oral argument on the motions. However, a judge's colloquy during a motion
hearing is not a substitute for the judge's obligation to articulate findings of fact
and conclusions of law. Pardo v. Dominquez, 382 N.J. Super. 489, 492 (App.
Div. 2006) (rejecting "the suggestion that a judge's comment or question in a
colloquy can provide the reasoning for an opinion which requires findings of
fact and conclusions of law.").
"[O]ur function as an appellate court is to review the decision of the trial
court, not to decide the motion tabula rasa." Estate of Doerfler v. Fed. Ins. Co.,
454 N.J. Super. 298, 302 (App. Div. 2018). The parties and the court cannot
properly function or proceed without some understanding of why a judge has
made a particular ruling.
The rendering of factual findings and legal conclusions flowing from such
findings is tasked to the motion judge. While appellate courts exercise de novo
review of a trial court's decision to grant or deny a motion for summary
A-4419-17T4 10 judgment, we are not compelled to delve into the record and make findings of
fact. We should not guess or assume what the judge might have been thinking.
Without adequate findings of fact and legal conclusions, we are
constrained to reverse and remand the matters to the trial court. Given our
determination to remand, we decline to address the merits of the issues raised in
these appeals.
Within forty-five days of the date of this opinion, the motion judge shall
consider appellants' contentions and provide the requisite findings of fact and
conclusions of law on all issues raised in appellants' briefs. We do not suggest
the outcome of the motions.
Reversed and remanded. We do not retain jurisdiction.
A-4419-17T4 11