Liberty Surplus Insurance v. Amoroso

916 A.2d 440, 189 N.J. 436, 2007 N.J. LEXIS 190
CourtSupreme Court of New Jersey
DecidedFebruary 28, 2007
StatusPublished
Cited by193 cases

This text of 916 A.2d 440 (Liberty Surplus Insurance v. Amoroso) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Liberty Surplus Insurance v. Amoroso, 916 A.2d 440, 189 N.J. 436, 2007 N.J. LEXIS 190 (N.J. 2007).

Opinion

Justice WALLACE, JR.,

delivered the opinion of the Court.

In this declaratory judgment action, the trial court granted summary judgment in favor of the insurer, Liberty Surplus Insurance Corp., Inc. (Liberty). In an unpublished, per curiam decision, the Appellate Division affirmed. We granted certification, in part, to determine whether summary judgment may be granted in favor of an insurer when an application for insurance contains a subjective question whether the insured had knowledge of any circumstance, act, error, or omission that could result in a legal malpractice claim against it and the insured answers “no.” We affirm the grant of summary judgment in favor of Liberty.

[440]*440I.

A.

In June 2003, Thomas Matarese, Larry Kolczycki, and Bachelor I Tavern, Inc., i/a Scandals (collectively referred to as Matarese), filed suit against defendants, the law firm of Nowell Amoroso Klein Bierman, P.A. and several of its attorneys (collectively referred to as Nowell Amoroso), alleging legal malpractice in connection with Nowell Amoroso’s representation of Matarese in an action against the City of East Orange and others (East Orange defendants). Nowell Amoroso notified its insurer, Liberty, of the malpractice claim and sought coverage under the insurance policy. On July 21, 2003, Liberty disclaimed coverage, asserting that Nowell Amoroso “had a reasonable basis to believe that [it] had breached a professional duty or to foresee that a claim would be made against” it when it completed the application for elaims-made insurance.

Liberty then filed a declaratory judgment action against Nowell Amoroso, seeking a determination that Matarese’s legal malpractice claim was not covered under the claims-made policy with Nowell Amoroso. On November 4, 2003, Nowell Amoroso moved for summary judgment. In its statement of material facts, Nowell Amoroso outlined the history of the prior litigation against the East Orange defendants and attached the various trial and appellate court decisions.

Liberty, in turn, filed a cross-motion for summary judgment, included additional undisputed facts in support of its motion, and replied to Nowell Amoroso’s statement of material facts. In its July 21, 2003 letter to Nowell Amoroso disclaiming coverage, Liberty reiterated the policy “condition that provides that there is coverage for an act that happens prior to the policy period if[ ] the Insured had no reasonable basis to believe that the insured had breached a professional duty or to foresee that a claim would be made against the Insured.” (Formatting altered). Further, Liberty declared that “[t]he letter disclaiming coverage state[d] ... [441]*441that Matarese’s malpractice claim [was] not covered under the policy because as of the February 2, 1999 Appellate Division decision, Nowell Amoroso ha[d] a reasonable basis to believe that it had breached a professional duty or foresee that a claim would be made against” it. Liberty also asserted that at the time Nowell Amoroso completed its insurance application, Nowell Amo-roso “had knowledge of a circumstance, act, error or omission that could result in a professional liability claim” against it.

In opposition to Liberty’s summary judgment cross-motion, the individual attorneys at Nowell Amoroso filed certifications that stated, in part:

On July 15, 2002, when Nowell Amoroso Klein Bierman, P.A. submitted the application for malpractice insurance to Liberty Surplus Insurance Corporation, Inc., I did not have knowledge of, or a reasonable basis to believe that, any circumstances, act, error or omission on the part of any past or present attorneys of the firm occurring in the course of the firm’s representation of Thomas Matarese and Bachelor I Tavern, Inc. Va Scandals in a litigation against the City of East Orange, could or would result in a professional liability claim against Nowell Amoroso Klein Bierman, PA.
I did not have knowledge of or a reasonable basis to believe that, any circumstances, act, error or omission on the part of any past or present attorneys of the firm occurring in the course of the firm’s aforementioned representation could or would result in a professional liability claim against Nowell Amoroso, Klein, Bierman P.A., until after June 6, 2003[,] the date when the Complaint for legal malpractice was filed in the action entitled Thomas Matarese v. Nowell Amoroso Klein Bierman, P.A., et al., Docket No. ESX-4921-03.
[(Formatting altered).]

B.

We digress from the procedural history to summarize the earlier action against the East Orange defendants that is the foundation of the legal malpractice complaint against Nowell Amo-roso. Matarese owned and operated a night club in East Orange known as Charlie’s West. Matarese changed the name of the club to Scandals and sought to expand its clientele. By January 1992, Scandals was a thriving club and posed a threat to a competitor club that was partly owned by a man who was also Director of Property Maintenance for East Orange (Director). Matarese believed that the Director used his influence to encourage the [442]*442police to harass Scandals’s patrons. Matarese also claimed that other city agencies engaged in numerous unannounced inspections of his club during peak hours to interfere with the operation of his club in order to increase business for the Director’s club.

By April 1992, there was a substantial decline in the patronage at Scandals. Matarese filed a complaint with the Internal Affairs Únit of the East Orange Police Department against a police lieutenant, alleging harassment and extortion. Matarese also filed a Notice of Claim against East Orange in July 1992. Scandals subsequently closed in September 1992.

Because Matarese’s original attorney was no longer available to represent him, Matarese sought the assistance of Nowell Amoroso to represent him on a contingency basis. Nowell Amoroso agreed, but for unknown reasons, the law firm did not file the complaint against the East Orange defendants until May 23, 1994. During the discovery period, the East Orange defendants failed to provide discovery, resulting in the suppression of their answers and defenses. Following a proof hearing, the trial court awarded Ma-tarese damages in the amount of $400,000.

The East Orange defendants appealed. In a reported decision, the panel reversed and remanded the case. Kolczycki v. City of E. Orange, 317 N.J.Super. 505, 520, 722 A.2d 603 (App.Div.1999). The panel reasoned that because Matarese’s proofs might be read to mean that the cause of action arose prior to May 22, 1992, the trial court needed to determine whether Matarese’s filing of the suit on May 23, 1994, was beyond the two-year statute of limitations. Id. at 518, 722 A.2d 603. The panel held that, on remand, “the trial court must determine whether any tortious conduct perpetrated by defendants against [Matarese] that occurred on or after May 22, 1992 constitute^] a tort that can stand on its own for the maintenance of a suit against defendants without any need to refer to prior conduct of defendants to establish liability.” Id. at 519-20, 722 A.2d 603.

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Bluebook (online)
916 A.2d 440, 189 N.J. 436, 2007 N.J. LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liberty-surplus-insurance-v-amoroso-nj-2007.