Opinion
DOCKET NO. A-1606-13T1
09-19-2014
SHANNON MARCIANTE, Plaintiff-Respondent, v. AMADO A. HUEZO, Defendant, and RUDERY I. MARCIA, Defendant-Appellant.
Victoria J. Adornetto argued the cause for appellant (Margolis Edelstein, attorneys; Emery J. Mishky, of counsel and on the brief; Ms. Adornetto, on the brief). Patricia M. Love argued the cause for respondent (Hendricks & Hendricks, attorneys; Ms. Love, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2208-10. Victoria J. Adornetto argued the cause for appellant (Margolis Edelstein, attorneys; Emery J. Mishky, of counsel and on the brief; Ms. Adornetto, on the brief). Patricia M. Love argued the cause for respondent (Hendricks & Hendricks, attorneys; Ms. Love, of counsel and on the brief). PER CURIAM
This appeal involves the trial court's denial of a motion brought under Rule 4:50-1 seeking to vacate a default judgment entered against a defendant vehicle owner in a personal injury action. The motion was filed by counsel retained for defendant by an insurer, which decided two years after being notified of the lawsuit to defend him under a reservation of rights. The motion lacked any supporting certification or affidavit from defendant himself, who apparently has moved out of state and has been difficult to locate.
For the reasons that follow, we affirm the denial of the motion to vacate, without prejudice to defendant's ability to seek relief in a renewed motion supported by an affidavit or certification based on defendant's own personal knowledge and circumstances.
The pertinent chronology is as follows. Plaintiff Shannon Marciante was injured in a motor vehicle collision on June 25, 2008 at a rest stop on the New Jersey Turnpike. She was struck by a Freightliner truck driven by co-defendant Amado Huezo and owned by defendant Rudery Marcia.
Although it did not come to light until months after the default judgment was entered, the Freightliner may have been leased as of the time of the accident to another motor carrier, Unusual Hook-Ups, Inc. ("UHU"). In fact, the police report for the accident listed a United States Department of Transportation carrier number corresponding to the vehicle for a company under the similar name of "Unusual Hauling."
Plaintiff allegedly sustained multiple injuries to her neck and back in the accident, which she contends resulted in her undergoing a surgical discectomy and bone graft. According to plaintiff, she continues to have residual impacts from the accident, and she lost several months of work and wages.
Huezo was never served with process. However, a private process server did serve Marcia on June 11, 2010, pursuant to Rule 4:4-4(a)(1), by leaving a copy of the summons and complaint with Marcia's brother-in-law Nestor Guerra, at Marcia's last known New Jersey address in Rahway. Marcia did not file an answer. At some unspecified time, he apparently moved to Texas. Default was entered in July 2010 against Marcia due to his failure to answer.
The Freightliner cab owned by Marcia was potentially covered under a non-trucking "bobtail" policy issued to Marcia by Great American Insurance Company ("Great American"). Another insurer, ARI Mutual Insurance Company ("ARI Mutual"), covered UHU under a business auto policy. ARI Mutual learned of the existence of the lawsuit in August 2010, after receiving correspondence from Great American.
The record is bereft of any communications between Marcia and the insurance carriers, or any evidence that he requested either of them to provide him with a defense and coverage in this case. According to a certification from its claims manager, ARI Mutual hired an investigator to locate Marcia. The investigator was unsuccessful in his efforts. As of the time of the motion practice in this case, Marcia still had not been found.
At oral argument we were advised by plaintiff's counsel that Marcia since has been served with the complaint in a separate declaratory judgment action filed by ARI Mutual, and that his deposition in that pending case has been scheduled.
Both insurers initially denied coverage and declined to defend or indemnify Marcia. Great American denied coverage because the use of the Freightliner to haul a loaded container at the time of the accident purportedly triggered the "business use" exclusion in Marcia's policy. Meanwhile, ARI Mutual denied coverage after a principal of UHU advised the insurer's investigator that UHU had not been leasing the Freightliner from Marcia at the time of the accident.
In April 2012, the trial court conducted a proof hearing, on written notice to Marcia at an address in Texas. Neither Marcia nor any attorney on his behalf appeared at the proof hearing. Based upon plaintiff's testimony at the hearing, the court awarded her $1.2 million in damages for her pain and suffering, plus $7800 for lost wages. Thereafter, the trial court entered default judgment, solely against Marcia, in the amount of $1,2 07,800, dated April 16, 2 012. The judgment recited that it was to be "forwarded [to] all interested parties" within five days.
Plaintiff has been unable to provide documented proof that the default judgment was ever served individually on Marcia. However, plaintiff has substantiated that the judgment was served on ARI Mutual, by letter dated April 23, 2012. Although it is not documented in the record, plaintiff's counsel apparently served a copy of the default judgment similarly upon Great American at or about that same time. According to plaintiff's counsel, his office communicated with ARI Mutual and Great American multiple times in an effort to advise the insurers of the status of the case and to get them involved.
According to ARI Mutual's claims manager, nearly eight months after the default judgment had been entered in April 2012, Great American forwarded to ARI Mutual a copy of a 2007 equipment lease agreement between UHU and Marcia. Great American had obtained the lease from Guerra, Marcia's brother-in-law. Under the agreement, Marcia purportedly leased the Freightliner to UHU, which was contrary to earlier information that UHU's principal had originally provided to ARI Mutual's investigator, in which he stated that the Freightliner was not leased to UHU.
After receiving the lease agreement, ARI Mutual changed its position and decided to provide representation to Marcia, albeit under a reservation of rights. ARI Mutual attempted to contact Marcia in New Jersey and Texas and offer him such a provisional defense, but it did not receive any response from Marcia.
Despite not hearing back from Marcia, ARI Mutual attempted to vacate the default judgment by filing a motion on Marcia's behalf under Rule 4:50-1. The motion was filed in June 2013, more than a year after the default judgment was entered. The motion was supported by a certification from ARI Mutual's claims manager explaining what that insurer had done since being notified of the lawsuit. However, the motion was not accompanied by any affidavit, certification, correspondence, e-mail, or other statement from Marcia himself. Plaintiff opposed the motion.
The motion to vacate was argued twice before Judge Barry A. Weisberg. At the first oral argument, Judge Weisberg inquired about whether plaintiff could prove that the default judgment had been served on Marcia. The motion was then carried to address the service issues. Plaintiff's attorneys searched their records in the meantime but were unable to provide supporting confirmation that the judgment had, in fact, been served on Marcia. At the second oral argument, Judge Weisberg focused on the absence of excusable neglect that might have justified the defense's inaction. The judge chastised the two insurance companies for not acting sooner to file or attempt to file a responsive pleading, and he denied the motion.
Counsel for Marcia retained by ARI Mutual then filed the present appeal. Counsel argues that the motion judge erred in denying permission to vacate the default judgment, and that the judge abused his discretion. We reject those arguments.
Our standard of review in this context is limited. The disposition of a motion under Rule 4:50-1 to vacate a default judgment is generally entrusted to the discretion of the trial court. Hodgson v. Applegate, 31 N.J. 29, 37 (1959). The trial court's decision to grant or deny such a motion should not be disturbed on appeal unless it represents a "clear abuse of discretion." Morristown Housing Auth. v. Little, 135 N.J. 274, 283-84 (1994); Orner v. Liu, 419 N.J. Super. 431, 435 (App. Div. 2011). Such an abuse of discretion exists when the trial court's decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002); see also U.S. Bank Nat'l. Ass'n. v. Guillaume, 209 N.J. 449, 467-68 (2012) (reiterating the Flagg language).
Here, the movant sought relief alternatively under subsections (a), (e), and (f) of Rule 4:50-1. Subsection (a) permits relief from a final judgment, upon a demonstration of "mistake, inadvertence, surprise, or excusable neglect." R. 4:50-1(a). Such a motion must be filed not more than one year after the entry of the final order or judgment. See R. 4:50-2 (imposing such a deadline for motions filed under subsections (a), (b) and (c) of Rule 4:50-1). We concur with the motion judge that the one-year deadline was not violated here because of the absence of proof substantiating that plaintiff's counsel actually served defendant Marcia with the default judgment and thereby provided him with proper notice that it had been entered.
With respect to the particular concept of "excusable neglect" under Rule 4:50-1(a), a movant must show that the failure to take action sooner was "attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Mancini v. EDS, 132 N.J. 330, 335 (1993). In addition, to obtain relief from a judgment under subsection (a), a movant must also show the existence of a meritorious defense. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div. 1964), aff'd, 43 N.J. 508 (1964).
Alternatively, subsection (e) of Rule 4:50-1 affords relief, among other things, where "it is no longer equitable that the judgment or order should have prospective application." R. 4:50-1(e). Lastly, subsection (f) provides that a court may vacate a judgment for "any other reason justifying relief from the operation of the judgment or order." R. 4:50-1(f). That latter subsection, sometimes referred to as the catchall provision, is intended to apply only in "exceptional situations." Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966); see also Morristown v. Little, supra, 135 N.J. at 286.
Despite the inapplicability of the one-year deadline here, all motions for relief under Rule 4:50-1 must be filed within "a reasonable time." See R. 4:50-2. The specific interval that constitutes a "reasonable time" under Rule 4:50-2 is dependent on the totality of the circumstances. Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:50-2 (2014). See Jackson Constr. Co. v. Ocean Twp., 182 N.J. Super. 148, 161-62, 3 N.J. Tax 296, 309 (Tax 1981) (noting that "[a] determination of whether an application has been submitted within a reasonable time requires an analysis of all relevant facts and rests in the sound discretion of a trial court, with guidance provided by known equitable principles") (citing Garza v. Paone, 44 N.J. Super. 553, 557—58 (App. Div. 1957)). Furthermore, "[t]he reasonableness of the time period is determined by all the surrounding circumstances including the length of time that has passed and a due consideration for competing rights and interests which have come to exist." Friedman v. Monaco & Brown Corp., 258 N.J. Super. 539, 543 (App. Div. 1992).
We are unpersuaded that the motion judge engaged in a "clear abuse of discretion" in applying these principles and denying the request to set aside this final judgment, which had been on the books for well over a year. We affirm Judge Weisberg's ruling, substantially for the cogent reasons he spread on the record in his October 25, 2013 oral opinion. A few additional comments are worth emphasizing.
Marcia was served with the summons and complaint in June 2010, in a manner authorized by the Rules of Court. As defense counsel conceded at oral argument before us, the validity of that service of process was not challenged before the trial court. For reasons that have not been divulged, Marcia never filed an answer to the complaint. Nor did anyone file an answer on his behalf.
Plaintiff's counsel promptly served the two known potential insurers of Marcia, Great American and ARI Mutual, with a copy of the default judgment within a week after it was entered in April 2012. Neither insurer attempted to have the court unravel the judgment until the instant motion to vacate was filed much later in June 2013. As Judge Weisberg aptly observed, the insurers are "sophisticated organizations" that made conscious decisions here to "let the chips fall where they may," despite knowing of the existence of this lawsuit for over three years.
Although the UHU-Marcia lease agreement did not turn up until late 2012, that event still does not adequately explain the failure of Marcia, or anyone on his behalf, to file a timely answer in this case. Indeed, the two potential insurers are still battling over coverage issues in the declaratory judgment action, all while plaintiff remains uncompensated for her injuries in this 2008 accident.
To be sure, the insurers did not have any contact with Marcia during the pendency of the lawsuit, but that silence by the insured does not make the judge's denial of relief under Rule 4:50-1 arbitrary or capricious. Plaintiff's own interests, and the court's institutional interests in finality, also had to be factored into the equation. Given the circumstances, and the long delay by the defense in pursuing redress, we cannot say that the trial judge clearly abused his discretion.
We temper our conclusion, however, with a recognition that defendant Marcia himself did not provide any sworn statement in support of the Rule 4:50-1 motion. Had he done so, and explained why he had not taken (or authorized) action sooner, the trial court might well have been faced with a different set of equitable considerations. We will not speculate as to whether Marcia could attest to sufficient facts on personal knowledge, in accordance with Rule 1:6-6, that could justify relief from the judgment. Even so, we will not foreclose the possibility that Marcia will surface and provide such a competent supporting certification or affidavit in the future, although as more time passes, the strength of such a presentation will likely diminish and plaintiff's interests in maintaining the judgment will rise.
At oral argument before us, plaintiff's counsel acknowledged that Marcia should be allowed to file such a motion based upon his personal knowledge, even if we affirmed the trial court's present ruling.
--------
Affirmed, subject to the caveat that we have noted. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION