R.A.W., Inc., Etc. v. Verdantas, LLC

NOT FOR PUBLICATION WITHOUT THE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-3143-24

R.A.W., INC. d/b/a ROXBURY

AUTO WRECKERS,

Plaintiff-Appellant,

v.

VERDANTAS, LLC, individually

and as Successor to JM SORGE,

INC., JOSEPH M. SORGE, and

MICHELLE BOUMAN, LSRP,1

Defendants-Respondents.

____________________________

Submitted April 15, 2026 – Decided May 5, 2026

Before Judges Gummer and Vanek.

On appeal from the Superior Court of New Jersey, Law

Division, Morris County, Docket No. L-1387-24.

Meyner and Landis LLP, attorneys for appellant (Albert

I. Telsey, on the briefs).

1

Michelle Bouwman was improperly pleaded as Michelle Bouman.

Marshall Dennehey, PC, attorneys for respondents

(John H. Osorio, Eduardo Ascolese and Walter F.

Kawalec, III, on the brief).

PER CURIAM

Plaintiff R.A.W., Inc. d/b/a/ Roxbury Auto Wreckers appeals from a May

27, 2025 order denying reconsideration of an order granting summary judgment

to Verdantas, LLC (Verdantas), as successor to JM Sorge, Inc. (Sorge) , and

licensed site remediation professionals (LSRPs) Michelle Bouwman and Joseph

M. Sorge (collectively defendants). Plaintiff primarily argues a waiver

provision in its contract with Verdantas and Sorge violates public policy because

it precludes liability from being imposed against individual LSRPs.2 After

reviewing the record and prevailing law, we affirm.

I.

On November 9, 2015, plaintiff contracted with Sorge to provide LSRP

2

Plaintiff does not present an argument addressing the portion of the order

granting summary judgment to Verdantas and Sorge based on plaintiff's failure

to comply with the Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A-27

to -29. Thus, our review is cabined to the portion of the order granting summary

judgment to LSRP Bouwman and Joseph M. Sorge. See State v. D.F.W., 468

N.J. Super. 422, 447 (App. Div. 2021) (disallowing consideration of issues not

formally briefed by defendant); Drinker Biddle & Reath LLP v. N.J. Dep't of

Law & Pub. Safety, Div. of Law, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011)

(determining the failure to brief an issue on appeal is an abandonment of that

issue); R. 2:6-2(a)(6).

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2

services for the remediation of plaintiff's auto salvage yard in accordance with

the New Jersey Site Remediation Reform Act (SRRA), N.J.S.A. 58:10C-1 to -

29 (the Agreement). Sorge assigned Bouwman as the LSRP for plaintiff's

remediation project.

After Verdantas succeeded to Sorge's interests approximately eight years

later, the parties agreed Verdantas would continue to provide LSRP services to

plaintiff under the terms of the Agreement. The Agreement contained the

following waiver provision:

To the fullest extent permitted by law, [plaintiff] agrees

that no shareholder, officer, director, partner, principal,

employee or LSRP of Consultant, [3] shall have any

personal liability for any act, omission, breach, tort,

fault or wrong arising from or relating to the services

performed by Consultant and its LSRP under this

Agreement. It is further understood that [plaintiff] is

retaining Consultant to perform the work and to provide

the services of the LSRP and is not retaining the LSRP

directly. The Client waives its right to bring any

personal liability claims directly against the LSRP.

Nothing in this provision shall be construed as a waiver

by the Client to assert any claim against Consultant,

including any claim against Consultant's insurance

company providing coverage on this project, arising

from or relating to the services performed by

Consultant pursuant to the Agreement.

3

Under the Agreement, plaintiff was designated as the "Client" and it appears

Sorge was the "Consultant."

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3

On July 17, 2024, plaintiff filed a complaint against defendants, alleging

professional malpractice, negligence, fraud, breach of contract, breach of good

faith and fair dealing, common law indemnification, and unjust enrichment. On

defendants' motion, the trial court dismissed the claims against Bouwman and

other individual defendants, based in part on the contractual personal-liability

waiver, but granted plaintiff leave to file an amended complaint. Plaintiff filed

an amended complaint that alleged the LSRP services deviated from industry

standards and caused it to suffer damages. 4

Defendants moved for summary judgment based on plaintiff's failure to

provide an AOM pursuant to N.J.S.A. 2A:53A-27 and because plaintiff's claims

against Bouwman, Joseph M. Sorge and other individual defendants were barred

by the personal-liability waiver provision in the Agreement. After oral

argument, the judge granted summary judgment to Verdantas and Sorge because

plaintiff failed to submit an AOM as to the claims against them. Although the

judge found the AOM requirement had not yet been triggered as to Bouwman

and Joseph M. Sorge, he granted summary judgment to them based on the

personal-liability waiver provision in the Agreement.

4

Plaintiff's original complaint also included Peter R. Sorge and Courtney

Palmisano as defendants. However, the amended complaint did not include

them as parties.

A-3143-24

4

The judge denied plaintiff's motion for reconsideration in an order

accompanied by a written statement of reasons. The judge found the personal-

liability waiver provision was enforceable and did not violate public policy.

While recognizing such clauses receive close judicial scrutiny, the judge found

the waiver provision was enforceable because the transaction involved

sophisticated parties contracting at arms-length and did not foreclose plaintiff's

ability to pursue relief from Verdantas and Sorge.

Plaintiff argues on appeal the judge erred by failing to apply "the public

policy exception to the liability exculpation clause for a[n LSRP]"; and asserts

"[t]he trial court cannot substitute another defendant as a remedy for denying

the right to sue an LSRP."

II.

We begin our analysis of plaintiff's arguments by circumscribing our

standard of review. We review a trial court's decision on a motion for

reconsideration for abuse of discretion. In re Est. of Jones, 477 N.J. Super. 203,

216 (App. Div. 2023) (citing Pitney Bowes Bank, Inc. v. ABC Caging

Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015)). "An abuse of

discretion 'arises when a decision is "made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

A-3143-24

5

basis."'" Pitney, 440 N.J. Super. at 382 (quoting Flagg v. Essex Cnty.

Prosecutor, 171 N.J. 561, 571 (2002)). Under Rule 4:49-2, the moving party

must show "that the challenged order was the result of a 'palpably incorrect or

irrational' analysis or of the judge's failure to 'consider' or 'appreciate' competent

and probative evidence." Jones, 477 N.J. Super. at 217 (quoting Lawson v.

Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021)) (internal quotation marks

omitted).

Because our review of the order denying reconsideration necessarily

requires us to determine whether the judge erred by granting summary judgment

to Bouwman and Joseph M. Sorge, we recount the oft-cited standard under Rule

4:46-2. A motion for summary judgment should be granted "if the pleadings,

depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment or order as a

matter of law." R. 4:46-2(c). A genuine issue of material fact exists "only if,

considering the burden of persuasion at trial, the evidence submitted by the

parties on the motion, together with all legitimate inferences therefrom favoring

the non-moving party, would require submission of the issue to the trier of fact."

Gayles by Gayles v. Sky Zone Trampoline Park, 468 N.J. Super. 17, 22 (App.

A-3143-24

6

Div. 2021) (quoting Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017)).

It is a well-settled principle that summary judgment is properly granted when

"the evidence is so one-sided that one party must prevail as a matter of law."

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (internal

quotation marks omitted).

III.

We discern no error in the judge's conclusion that the personal-liability

waiver provision in the Agreement was enforceable and does not violate public

policy.

"Ordinarily, courts will not rewrite contracts to favor a party, for the

purpose of giving that party a better bargain." Lucier v. Williams, 366 N.J.

Super. 485, 491 (2004) (citing Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 161

A.2d 717 (1960)). The Agreement here is a private contract subject to the

overarching "principle that parties 'are afforded the liberty to bind themselves

as they see fit.'" Vitale v. Schering-Plough Corp., 231 N.J. 234, 246 (2017)

(quoting Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 302 (2010)). Freedom

to contract, however, is not boundless, and the right to contract "must recede 'to

prevent its abuse, as otherwise it could be used to override all public interests.'"

A-3143-24

7

Ibid. (quoting Rodriguez v. Raymours Furniture Co., 225 N.J. 343, 361 (2016)

(internal quotation marks omitted)).

New Jersey law "does not demand a per se ban against enforcement of an

exculpatory agreement based on the mere existence of a duty recognized in the

common law." Id. at 248 (quoting Stelluti, 203 N.J. at 306). However,

"[c]ontracts that purport to exculpate a party from its future carelessness are

subject to special rules" and "are disfavored, . . . essentially because they violate

the aims underlying our tort law: deterrence of careless behavior and

compensation by the wrongdoer for injuries sustained by victims." Marcinczyk

v. State Police Training Commission, 203 N.J. 586, 593 (2010) (citing

Hojnowski v. Vans Skate Park, 187 N.J. 323 (2006)). Therefore, a liability-

waiver clause in an agreement is subject to close judicial scrutiny and will be

enforced only when the clause "reflect[s] the unequivocal expression of the party

giving up his or her legal rights that [the] decision was made voluntarily,

intelligently[,] and with the full knowledge of its legal consequences." Vitale,

231 N.J. at 247 (quoting Stelluti, 203 N.J. at 304-05) (internal quotation marks

omitted).

Courts have invalidated liability-waiver clauses that are unconscionable

or in violation of public policy. Lucier, 366 N.J. Super. at 491 (citing Moreira

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8

Constr. Co., Inc. v. Moretrench Corp., 97 N.J. Super. 391, 394 (App.Div. 1967),

aff'd 51 N.J. 405 (1968)). Although "[t]here is no hard and fast definition of

unconscionability," we have stated the "term implies a lack of 'good faith,

honesty in fact and observance of fair dealing.'" Lucier, 366 N.J. Super. at 492,

citing Kugler v. Romain, 58 N.J. 522 (1971). In Lucier, we also explained:

In determining whether to enforce the terms of a

contract, we look not only to its adhesive nature, but

also to 'the subject matter of the contract, the parties'

relative bargaining positions, the degree of economic

compulsion motivating the 'adhering' party, and the

public interests affected by the contract. Rudbart v

.North Jersey District Water Supply Comm'n, 127 N.J.

344, 356, cert. denied, 506 U.S. 871 (1992). Where the

provision limits a party's liability, we pay particular

attention to any inequality in the bargaining power and

status of the parties, as well as the substance of the

contract. Valhal Corp. v. Sullivan Assoc, Inc., 44 F.3d

195, 204 (3rd Cir. 1995), Marbro, Inc. v. Borough of

Tinton Falls, 297 N.J. Super. 411, 416-418 (Law Div.

1996).

We also focus on "whether the limitation is a reasonable allocation of risk

between the parties or whether it runs afoul of the public policy disfavoring

[such] clauses. . . ." Ibid., citing Valhal, 44 F.3d at 202-04; Marbro, 297 N.J.

Super. at 416-18. Where the contracting parties are not on roughly equal

bargaining terms, a contractual exemption from liability is rarely allowed to

stand. Ibid.

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9

Even where the provision is unambiguous and not otherwise

unconscionable, "it is well-established that exculpatory contracts will not be

enforced where they are contrary to public policy." Marcinczyk, at 594 (further

citations omitted). Under New Jersey law,

[a]n agreement is against public policy if it is injurious

to the interest of the public, contravenes some

established interest of society, violates some public

statute, is against good morals, tends to interfere with

the public welfare or safety, or . . . is at war with the

interests of society and is in conflict with public morals.

[Ibid. (alteration in original) (quoting Frank Briscoe

Co. v. Travelers Indem. Co., 65 F. Supp. 2d 285, 312

(D.N.J. 1999)) (internal quotation marks omitted).]

The Court has held that "contractual provisions that tend to injure the public in

some way will not be enforced." Ibid.

Finding the provision here was entered into between sophisticated parties

in an arms-length transaction and the clause clearly stated plaintiff waived its

right to assert claims against any individual LSRP, the judge concluded the

provision was enforceable and did not violate public policy. We are

unconvinced the judge erred by concluding the Agreement's waiver provision

did not violate public policy because it only eliminated plaintiff's ability to

recover against Bouwman and Joseph M. Sorge, leaving plaintiff with the ability

to obtain relief from Verdantas and Sorge.

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10

We are also unpersuaded the judge failed to analyze "the legislative public

policy underpinning the LSRP profession." In the written statement of reasons

appended to the order denying plaintiff's reconsideration motion, the judge

expressly considered the purposes of the SRRA when finding the exculpatory

clause enforceable. We see no reason to disturb the judge's well-reasoned

conclusion and add only the following.

The SRRA promulgated the LSRP program to essentially privatize certain

State of New Jersey, Department of Environmental Protection functions. The

SRRA states a LSRP's "priority in the performance of professional services shall

be the protection of public health and safety and the environment ," N.J.S.A.

58:10C-16(a), and details a LSRP's responsibilities. The judge found a LSRP's

violation of the duties and responsibilities set forth in the SRRA may subject

them to a host of consequences. N.J.S.A. 58:10C-17 specifies remedies the Site

Remediation Professional Licensing Board (Board) may seek against a LSRP

found to have violated the SRRA. The judge aptly concluded the statute "does

not confer upon an individual the right to bring a private cause of action against

an LSRP, as suggested by . . . [p]laintiff."

We have recognized the legislative purpose of the SRRA was to "further

improve the efficiency and speed with which environmental sites are

A-3143-24

11

remediated." Des Champs Lab'ys., Inc. v. Martin, 427 N.J. Super. 84, 99 (App.

Div. 2012). The personal-liability waiver provision at issue here does not run

counter to that purpose. Moreover, the public-policy rationales underpinning

our invalidation of certain exculpatory clauses—deterrence of careless behavior

and compensation to the injured by the wrongdoer—are absent here because

plaintiff had the ability to pursue claims against Verdantas and Sorge.

Marcinczyk, 203 N.J. at 593. That plaintiff failed to meet the statutory AOM

requirements to advance its claims against Verdantas and Sorge here is not

relevant to our analysis of the waiver provision's enforceability.

The judge properly distinguished plaintiff's mistaken reliance on

Marcinczyk, 203 N.J. 586, Hojnowski, 187 N.J. 323 (citing Lucier, 366 N.J.

Super. at 491), and Erlich v. First National Bank, 208 N.J. Super. 264 (Law Div.

1984), in support of its argument that the waiver provision at issue "does not

preclude a negligence or professional malpractice claim against an LSRP." The

plaintiffs in Marcinczyk and Erlich were each left without any avenue to seek

relief. As the judge found here, plaintiff contractually waived the right to hold

any individual LSRP liable but retained the right to sue Verdantas and Sorge for

their LSRP services. Cf. Marcinczyk, 203 N.J. at 590-91 (holding a provision

barring "any claim" against any potential defendant was unenforceable); Erlich,

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12

208 N.J. Super. at 287-89 (finding the language "will not be liable in any way"

when used to waive all liability of a bank and its service providers was

unenforceable). Thus, the public policy concerns implicated when a consumer

lacks any recourse for the professional's errors or omissions are not implicated

here.

Nor does the waiver provision at issue otherwise contravene established

public policy, as was the case in Marcinczyk, and Hojnowski. In Marcinczyk,

the Court analyzed the legislative intent underlying the Tort Claims Act,

N.J.S.A. 59:2-1(a)—to reestablish sovereign immunity with specific liability-

imposing exceptions—and concluded the exculpatory clause waiving liability

for all police officer-trainee injuries at the police academy violated the public

policy embodied in the statute. Marcinczyk, 203 N.J. at 594-600. The

Hojnowski Court also held a pre-injury release of liability was unenforceable as

contrary to the public's interests because it extinguished the minor's future tort

claims arising from the use of a recreational skateboarding facility. Hojnowski,

187 N.J. at 333-41.

Accordingly, the judge's denial of plaintiff's motion for reconsideration

was not an abuse of discretion. Any arguments we have not addressed lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

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Affirmed.

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