DAWN K. COOPER v. UNITED SPECIALTY INSURANCE COMPANY (L-9271-19 AND L-3506-21, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-0189-21

A-1002-21

DAWN K. COOPER,

Plaintiff-Appellant,

v.

UNITED SPECIALTY

INSURANCE COMPANY

and NATIONAL CLAIM

SERVICES, LLC,

Defendants-Respondents.

___________________________

DAWN K. COOPER,

Plaintiff-Appellant,

v.

FOREST HILLS 1, LLC,

C. FUSARI & SON LANDSCAPE

& DESIGN, INC. d/b/a ESSEX

DESIGN CONTRACTORS OF

NJ, LLC, FOREST HILLS URBAN

RENEWAL ASSOCIATION,

A LIMITED PARTNERSHIP,

FOREST HILL TERRACE

ASSOCIATION, INC. d/b/a

FOREST HILL TERRACE,

A CONDOMINIUM, and

FOREST HILLS GROUP, LLC,

Defendants-Respondents.

___________________________

Argued June 10, 2022 – Decided July 5, 2022

Before Judges Vernoia and Firko.

On appeal from an order in A-0189-21 and an

interlocutory order in A-1002-21 of the Superior Court

of New Jersey, Law Division, Essex County, Docket

Nos. L-3506-21 and L-9271-19.

Cory J. Rothbort argued the cause for appellant (Mazie

Slater Katz & Freeman, LLC, attorneys; David M.

Freeman, Cory J. Rothbort and Trevor D. Dickson, on

the briefs).

Sherri Pavloff (Stonberg Morgan, LLP) of the New

York bar, admitted pro hac vice, argued the cause for

respondents United Specialty Insurance Company and

National Claim Services, LLC (Michael S. Stonberg

(Stonberg Morgan, LLP) and Sherri Pavloff, attorneys;

Michael S. Stonberg, on the brief).

Jonathan R. Mehl argued the cause for respondent

Forest Hill Terrace Association, Inc.

PER CURIAM

In these appeals that were calendared back-to-back and consolidated for

the purpose of a single opinion, we address insurance-related claims. The issues

A-0189-21

2

presented arise from defendant Forest Hill Terrace Association, Inc.'s (Forest

Hill) decision not to request indemnification, under a general liability policy

issued by defendant United Specialty Insurance Co. (United), for plaintiff Dawn

K. Cooper's claim she suffered personal and economic injuries when she

allegedly slipped and fell in a laundry room in the condominium complex for

which Forest Hill serves as the condominium association.

Plaintiff argues the decision not to tender the claim may allow United to

later deny coverage and, as a result, she will be deprived of her interest in the

proceeds of the policy if she recovers a judgment against Forest Hill. In Forest

Hill's view, plaintiff's personal injury claim is devoid of merit, and it therefore

decided to defend itself in plaintiff's personal injury suit and pay any putative

damage award without recourse to its rights under the policy to avoid what it

anticipates would be increased future insurance premiums if it tendered a claim

to United.

In A-1002-21, plaintiff appeals from an order in her personal injury

lawsuit denying her motion to compel Forest Hill to tender an indemnification

claim to United. In A-0189-21, plaintiff appeals from an order dismissing her

complaint against United seeking a declaratory judgment United is obligated to

provide indemnification to Forest Hill under the policy for any damages plaintiff

A-0189-21

3

recovers against Forest Hill, and United is required "to provide medical expense

benefits" under the policy.

Based on our review of the record and the parties' arguments, in A-1002-

21 we vacate the order denying plaintiff's motion to compel Forest Hill to tender

a claim to United and we remand for further proceedings. In A-0189-21 we

affirm the court's order granting United's motion to dismiss plaintiff's

declaratory judgment complaint without prejudice.

I.

The genesis of the two lawsuits from which the pending appeals are taken

is plaintiff's claim she suffered personal injuries when she slipped and fell in the

laundry room of a condominium complex. At the time of the alleged accident,

Forest Hill had a general liability insurance policy with United providing

$1,000,000 of liability coverage, and $5,000 in medical expense coverage with

a $5,000 deductible.

Plaintiff filed a personal injury suit against Forest Hill alleging her

injuries were caused by its negligence. 1 In response to a motion filed on

plaintiff's behalf, the court ordered Forest Hill to provide plaintiff with insurance

1

Plaintiff's personal injury complaint asserted claims against other defendants

as well. We do not address those claims or discuss the other defendants because

they are not relevant to the issues presented on appeal.

A-0189-21

4

information and permitted plaintiff to contact Forest Hill's liability carrier,

United, concerning her claim. On January 15, 2021, plaintiff provided notice of

her claim directly to United, and United does not dispute it has notice of

plaintiff's claim against Forest Hill. Forest Hill did not request a defense or

indemnification coverage under the policy from United and, although it

acknowledges receipt of notice of plaintiff's personal injury lawsuit, United has

not made any coverage determinations under the policy in the absence of a

request for coverage from Forest Hill.

Plaintiff later filed a separate lawsuit pursuant to the Uniform Declaratory

Judgments Act, N.J.S.A. § 2A:16-50 to -62. She sought a judgment directing

United "provide liability benefits, including indemnification to" Forest Hill

pursuant to the "COVERAGE A BODILY INJURY AND PROPERTY

DAMAGE LIABILITY" provision (the bodily injury liability provision) of the

Forest Hill insurance policy. Plaintiff also sought a judgment directing United

"provide medical expense benefits to plaintiff" for her injuries sustained in the

laundry room accident pursuant to the "COVERAGE C MEDICAL

PAYMENTS" provision (the "medical payments provision") of the policy. In

response to the complaint, United filed a Rule 4:6-2(e) motion to dismiss for

failure to state a claim upon which relief may be granted.

A-0189-21

5

On September 10, 2021, the court granted United's motion, dismissing

plaintiff's complaint without prejudice. The court reasoned that plaintiff did not

have "third-party beneficiary status to enforce" Forest Hill's rights under the

policy and plaintiff did not possess an "actionable interest in the policy" at that

time sufficient to require that United take a position concerning indemnification

coverage. The court also found plaintiff's claim for medical expense benefits

was premature and not yet ripe.

The court explained that although the Condominium Act, N.J.S.A. 46:8B-

1 to -38, and specifically N.J.S.A. 46:8B-14(e), requires condominium

associations "purchase and maintain liability insurance for injuries that occur

within the common areas of the [c]ondominium," and Forest Hill's by-laws

similarly state it shall maintain a liability policy, those requirements do not

mandate that Forest Hill seek coverage under its liability policy when presented

with a claim. The court also determined it could not grant the requested relief—

a declaratory judgment Forest Hill is entitled to indemnification coverage and

medical expense benefits coverage under the policy—because Forest Hill, as the

insured, did not tender a claim and request coverage. The court entered an order

dismissing plaintiff's declaratory judgment action without prejudice.

A-0189-21

6

Eleven days later, plaintiff moved before a different court in the personal

injury action to compel Forest Hill to tender plaintiff's personal injury claim to

United. In an October 22, 2021 order, the court denied the motion without

prejudice. In scant findings supporting its denial, the court stated that it adopted

the court's determination in the declaratory judgment action that plaintiff did not

have standing under the Condominium Act or any decisional law.2

2

We observe there is a contradiction in the court's findings. The court states it

adopts the court's determination in the declaratory judgment action that plaintiff

lacked standing, but then incongruously states "plaintiff does in fact have third -

party standing." In the latter statement, the court clearly misspoke. Given the

context of the court's other statements to the parties, and its order, it is clear the

court adopted the declaratory judgment action court's determination plaintiff did

not have standing. Indeed, the court made no findings supporting a conclusion

plaintiff had standing and expressly stated it adopted the declaratory judgment

action court's determination plaintiff did not have standing. Moreover, on

appeal, the parties do not dispute the court determined plaintiff lacked standing

to move to compel Forest Hill to seek indemnification coverage from United.

Plaintiff's merits brief challenges the court's determination she did not have

standing; the second point of her brief is "PLAINTIFF HAS STANDING TO

ENFORCE THE POLICY," and Forest Hill's brief includes a point heading

stating "[PLAINTIFF] HAS NO STANDING TO ENFORCE

THE . . . POLICY[.]"

In dicta, the motion court also observed there is no requirement an insured make

a claim under an available insurance policy. In our view, that issue was not

properly presented to the court because Forest Hill, the insured, was not named

as a party to the declaratory judgment action and plaintiff did not seek a

declaratory judgment against Forest Hill on the issue. The court's observation

shall not be considered binding on the parties, who are free to raise the issue for

the court's consideration anew as appropriate in accordance with the Rules of

A-0189-21

7

We granted plaintiff leave to appeal from the courts' orders and calendared

the appeals back-to-back. We consider plaintiff's appeals in turn.

II.

In her appeal, A-0189-21, from the order dismissing the declaratory

judgment complaint, plaintiff argues the court erred because: she is a third-party

beneficiary of Forest Hill's insurance policy and therefore entitled to the

requested relief under the Uniform Declaratory Judgments Act, N.J.S.A. 2A:16-

50 to -62, and N.J.S.A. 2A:15-23; she has standing to enforce United's obligation

under the policy to provide indemnification coverage; and her request for a

determination United is obligated to indemnify Forest Hill is ripe for

adjudication. She also argues she is entitled to assert a first-party direct cause

of action against United for recovery of medical expenses under the policy

because she has actually incurred medical expenses.

"Rule 4:6-2(e) motions to dismiss for failure to state a claim upon which

relief can be granted are reviewed de novo." Baskin v. P.C. Richard & Son,

Court on our remand in the personal injury action and in any future declaratory

judgment action.

3

N.J.S.A. 2A:15-2, provides: "A person for whose benefit a contract is made,

either simple or sealed, may sue thereon in any court and may use such con tract

as a matter of defense in an action against him although the consideration of the

contract did not move from him."

A-0189-21

8

LLC, 246 N.J. 157, 171 (2021). "'At this preliminary stage of the litigation the

[c]ourt is not concerned with the ability of plaintiffs to prove the allegation

contained in the complaint,' and the plaintiff is 'entitled to every reasonable

inference of fact.'" Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo,

Hyman & Stahl, P.C., 237 N.J. 91, 107 (2019) (quoting Printing Mart-

Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). The court must

search the complaint "thoroughly 'and with liberality to ascertain whether the

fundament of a cause of action may be gleaned even from an obscure statement

of claim, opportunity being given to amend if necessary.'" Baskin, 246 N.J. at

171 (quoting Printing Mart, 116 N.J. at 746). Only where the court concludes

"the complaint states no claim that supports relief, and discovery will not give

rise to such a claim, the action should be dismissed." Dimitrakopoulos, 237 N.J.

at 107.

We affirm the court's dismissal of plaintiff's complaint seeking a

declaratory judgment that United is required to provide indemnification to

Forest Hill for any judgment obtained by plaintiff against Forest Hill in the

personal injury lawsuit. The complaint was correctly dismissed without

prejudice because the asserted claim is not ripe for adjudication.

A-0189-21

9

A claim is "ripe" for adjudication only where "the harm asserted has

matured sufficiently to warrant judicial intervention." Trombetta v. Mayor &

Comm'rs of Atlantic City, 181 N.J. Super. 203, 223 (Law Div. 1981). "A case's

ripeness depends on two factors: '(1) the fitness of issues for judicial review

and (2) the hardship to the parties if judicial review is withheld at this time.'"

Comm. to Recall Robert Menendez from the Office of U.S. Senator v. Wells,

204 N.J. 79, 99 (2010) (quoting K. Hovnanian Cos. of N. Cent. Jersey, Inc. v.

N.J. Dep't of Envtl. Prot., 379 N.J. Super. 1, 9 (App. Div. 2005)). "A declaratory

judgment claim is not ripe for adjudication if the facts illustrate that the rights

or status of the parties 'are future, contingent, and uncertain.'" Garden State

Equality v. Dow, 434 N.J. Super. 163, 189 (Law Div. 2013) (quoting Indep.

Realty Co. v. Twp. of N. Bergen, 376 N.J. Super. 295, 302 (App. Div. 2005)).

Plaintiff obtained an interest in Forest Hill's liability policy at the moment

she was allegedly injured. In re Estate of Gardinier, 40 N.J. 261, 265 (1963);

Dransfield v. Citizens Cas. Co. of N.Y., 5 N.J. 190, 194 (1950); Hanover Ins.

Co. v. McKenney, 245 N.J. Super. 282, 287-88 (Law Div. 1990). However, the

policy in which plaintiff obtained the interest includes an express limitation on

the suits that may properly be brought against United. More particularly,

A-0189-21

10

paragraph 3 of "SECTION IV - COMMERCIAL GENERAL LIABILITY

CONDITIONS" of the policy provides:

No person or organization has a right under this

Coverage Part:

a. To join us as a party or otherwise bring us into a

"suit" asking for damages from an insured; or

b. To sue us on this Coverage Part unless all of its terms

have been fully complied with.

A person or organization may sue us to recover on an

agreed settlement or on a final judgment against an

insured; but we will not be liable for damages that are

not payable under the terms of this Coverage Part or

that are in excess of the applicable limit of insurance.

An agreed settlement means a settlement and release of

liability signed by us, the insured and the claimant or

the claimant's legal representative.

"The basic purposes" of this type of provision, otherwise known as a no-

action clause, are two-fold: first, "to avoid joinder of the insurance company by

the injured person in the damage action against the insured, and" second, "to

prevent suit against the carrier by the injured person or the insured until the

[d]amages have been fixed by final judgment after trial of that action or by

proper agreement." Condenser Serv. & Eng'g Co. v. Am. Mut. Liab. Ins. Co.,

45 N.J. Super. 31, 41 (App. Div. 1957). The provision is in accord with the

general principle that, "[o]rdinarily, an injured person possesses no direct cause

A-0189-21

11

of action against the insurer of the tortfeasor prior to recovery of judgment

against the latter[.]" Manukas v. American Ins. Co., 98 N.J. Super. 522, 524

(App. Div. 1968).

Here, paragraph (a) of the no-action provision of the policy bars suits for

damages against United until there is a "final judgment against the insured ."

Plaintiff's declaratory judgment action does not seek damages against United,

and therefore paragraph (a) of the no-action provision prohibiting suits for

damages is inapplicable to plaintiff's declaratory judgment complaint.

Paragraph (b) of the no-action provision is not limited to suits for

damages. It bars suits on the "Coverage Part unless all of its terms have been

fully complied with." Under the policy's plain language, a suit on the "Coverage

Part," including one for declaratory judgment, is permitted as long as the policy's

"terms have been fully complied with."

Plaintiff's complaint does not assert the policy's terms have been "fully

complied with," and plaintiff acknowledges Forest Hill has not complied with

the terms required to obtain indemnification coverage under the policy. Forest

Hill did not request coverage under the policy and instead opted not to tender a

claim or seek indemnification from United in the first instance. Indeed, plaintiff

recognized Forest Hill's failure to take the actions required under the policy to

A-0189-21

12

obtain coverage; plaintiff moved in the personal injury action to compel Forest

Hill to comply with what she contends are the terms of the policy—by tendering

a claim and requesting coverage—to assure indemnification coverage is later

available in the event she obtains a judgment. Thus, plaintiff does not claim she

is entitled to sue for a declaratory judgment under the no-action provision of the

policy because she acknowledges the terms under which United would be

required to provide indemnification have not been "fully complied with."

For those reasons, plaintiff's request for declaratory relief was not ripe for

adjudication. Plaintiff claims an entitlement to bring suit to enforce the policy

terms against United, but she failed to plead facts allowing suit against United

under the policy's no-action provision. Moreover, plaintiff acknowledges that,

as a matter of fact, compliance with the terms of the policy that would establish

United's indemnification obligation have not yet been satisfied because Forest

Hill did not tender a claim and request indemnification from United.

We recognize that no-action provisions in insurance policies are

"never . . . intended to serve nor can [they] be construed to serve, the purpose of

avoiding a declaration of rights when the insurer allegedly has repudiated the

contract and declined to furnish an agreed defense of a covered damage action."

Condenser, 45 N.J. Super. at 41 (emphasis added). In support of her claim the

A-0189-21

13

court erred by dismissing her declaratory judgment complaint, plaintiff relies on

cases where an insurer attempted to "repudiate[] the contract," see McNally v.

Providence Washington Ins. Co., 304 N.J. Super. 83, 89-91 (App. Div. 1997)

(insureds sought declaration of coverage due to insurer's position "the relevant

[provisions of the] policies did not cover" the claims asserted against the

insured); Caldwell Trucking PRP Grp. v. Spaulding Composites, Co., 890 F.

Supp. 1247, 1251-52 (D.N.J. 1995) (both the plaintiff and defendant-insured, in

a suit for contribution for hazardous substance contamination clean up, sought

a declaration of coverage from defendant's insurers), but those cases have no

application here because plaintiff does not allege United repudiated the liability

policy or declined coverage. Rather, it is alleged only that United has not taken

a coverage position because although it has notice of plaintiff's claim against

Forest Hill, no request for coverage from Forest Hill has been tendered.

Our decision in Manukas, 98 N.J. Super. at 523-24, does not support a

different conclusion. In Manukas, the injured plaintiff filed a direct action to

recover damages against the insurer of an alleged tortfeasor, a church, following

an award of summary judgment in the church's favor finding it not liable under

the charitable immunity statute, N.J.S.A. 2A:53-7. Ibid. The plaintiff claimed

the insurance carrier was liable under the policy to cover the damages to which

A-0189-21

14

plaintiff claimed entitlement even though the church had charitable immunity

and had no liability for damages under N.J.S.A. 2A:53-7. Id. at 524.

We affirmed the trial court's summary judgment determination "there is

no liability under the policy," ibid., and explained the "plaintiff [could] not

proceed against [the insurer] until it first establishes the church's negligence and

the quantum of damages in an action against the church or to which the church

is a party," id. at 525. In dicta, we suggested the plaintiff could have commenced

a declaratory judgment action against the insurer carrier in the personal injury

action against the church or in a separate action against the insurance carrier and

church, but the issue about which we suggested plaintiff could seek a declaratory

judgment was not whether there was coverage under the insurance policy, which

included a no-action provision. Ibid.

We suggested plaintiff may have sought a declaratory judgment

concerning the interpretation of N.J.S.A. 2A:53A-7, the statute upon which the

court relied in the underlying personal injury action in granting the church

summary judgment and upon which plaintiff relied in the direct action against

the insurance carrier. Ibid. There are no similar circumstances extant here—

plaintiff's declaratory judgment complaint sought a determination United owed

Forest Hill indemnification coverage—and, even if there were similar

A-0189-21

15

circumstances, plaintiff never sought a declaratory judgment in an action against

United and Forest Hill.

The no-action provision in the policy, limiting direct suits against United

under the coverage provision upon which plaintiff bases its claimed entitlement

to a declaratory judgment, bars plaintiff's complaint against United because the

carrier has not "repudiated the contract [or] declined to furnish an agreed

defense," Condenser, 45 N.J. Super. at 41, but instead United has never been

requested by Forest Hill to provide coverage. Plaintiff does not allege, or cite

to any legal authority establishing, United is legally obligated to provide

coverage under a policy, or make a coverage determination, on a claim for which

the insured has decided to forego coverage. Again, that is the reason plaintiff

separately moved to compel Forest Hill to tender the claim to United; she

recognized United has no obligation to provide indemnification coverage for a

claim Forest Hill opted not to tender. The court correctly dismissed plaintiff's

complaint seeking a declaration of coverage under such circumstances;

plaintiff's cause of action for a declaratory judgment United is obligated to

provide indemnification coverage to Forest Hill is simply not ripe for

adjudication.

A-0189-21

16

For the same reason, we agree with the court's conclusion plaintiff lacked

standing to prosecute the declaratory judgment against United.

"Generally . . . our State has a 'low threshold' for standing." Bondi v. Citigroup,

Inc., 423 N.J. Super. 377, 437 (App. Div. 2011) (quoting In re Six Month

Extension of N.J.A.C. 5:91-1 et seq., 372 N.J. Super. 61, 85 (App. Div. 2004)).

Standing is "define[d] broadly" and "generally will be found where the party

seeking relief has a sufficient personal stake in the controversy to assure

adverseness, and the controversy is capable of resolution by the court." State v.

Lavrik, ___ N.J. Super. ___, ___ (App. Div. 2022) (slip op. at 11).

Here, lacking a judgment against Forest Hill upon which a proper

indemnification claim against United could be based, and absent a claim

founded on the satisfaction of all the policy terms requiring indemnification,

plaintiff's declaratory judgment action against United sought relief the trial

court, based on a of lack ripeness, was incapable of providing. Ibid. Plaintiff

therefore lacked standing to prosecute her complaint for a declaratory judgment

on the issue of indemnification under the policy; again, Forest Hill, as the

insured, decided not to seek indemnification under the policy from United.

For those reasons, we affirm the court's order dismissing plaintiff's

declaratory judgment complaint against United. It is therefore unnecessary to

A-0189-21

17

address plaintiff's remaining arguments concerning the court's other reasons for

dismissing the complaint. We express no opinion as to the other arguments

raised in support of plaintiff's challenge to the dismissal order, all of which may

be renewed by plaintiff in response to any future motions filed in that matter.

We also do not address the merits of plaintiff's claim the court erred by

dismissing her claim for a declaratory judgment United is obligated to pay her

medical expenses under the "medical expense" provision of the policy.

Although we granted plaintiff leave to appeal from the portion of the order

dismissing the claim, based on our review of the record, we are not convinced it

is appropriate to review the determination on an interlocutory basis. See Vitanza

v. James, 397 N.J. Super. 516, 517 (App. Div. 2008) ("The grant of interlocutory

review is 'highly discretionary' and 'customarily exercised only sparingly.'"

(quoting State v. Reldan, 100 N.J. 187, 205 (1985))). We therefore do not

address the merits of plaintiff's challenge to the court's dismissal of her medical

expense claim. Plaintiff may appeal from the court's dismissal of the claim, and

assert any arguments supporting her challenge to the dismissal , on her appeal

following entry of the final order in the matter.

A-0189-21

18

III.

We next consider plaintiff's challenge to the court's order denying her

motion to compel Forest Hill to tender a claim for coverage to United for any

damages plaintiff might recover against Forest Hill as a result of the laundry

room accident. As noted, the court denied the motion based on its limited

finding plaintiff did not have standing to assert the claim against Forest Hill.

The court's finding was founded on its adoption of the court's determination in

the declaratory judgment action that plaintiff did not have standing to assert her

claim against United. In other words, the court found plaintiff did not have

standing to assert a claim against Forest Hill because another court decided

plaintiff did not have standing to assert a claim against United.

In making its determination on that singular basis, the court did not

address or decide the merits of plaintiff's numerous other arguments, all of which

she reprises on appeal. For example, the court did not address plaintiff's claim

Forest Hill's decision not to tender a claim to United is an ultra vires act that

violates the Condominium Act's requirement that a condominium association

maintain a liability insurance policy, see N.J.S.A. 46:8B-14(e), and also violates

Forest Hill's by-laws requiring it maintain a liability insurance policy. The court

also did not address plaintiff's claim that Forest Hill's decision not to tender the

A-0189-21

19

claim violates a public policy that persons injured by a condominium

association's negligence are entitled to recourse against an insurance carrier who

issues what plaintiff characterizes as mandatory liability insurance.

Similarly, the court did not make findings of fact and conclusions of law,

R. 1:7-4, addressing Forest Hill's substantive defenses to plaintiff's motion,

including its assertions the Condominium Act expressly authorizes a

condominium association to control its own defense to any claim asserted

against it, see ibid., and otherwise does not require submission of a claim to an

insurance carrier, and that its decision not to submit the claim constitutes a

proper exercise of its reasonable business judgment, see Owners of the Manor

Homes of Whittingham v. Whittingham Homeowners Ass'n, Inc., 367 N.J.

Super. 314, 322 (App. Div. 2004) (explaining the "business judgment rule").

We are therefore presented with a challenge to an order entered by the

court on a narrow and limited ground—plaintiff's purported lack of standing—

that is based on numerous other arguments the court did not consider or decide

in the first instance. We opt not to address the merits of the numerous

substantive issues presented for two reasons. First, based on its conclusion

plaintiff lacked standing, the motion court did not make the findings of fact and

conclusions of law as to the merits of the parties' numerous other substantive

A-0189-21

20

arguments, see R. 1:7-4(a), and "our function as an appellate court is to review

the decision of the trial court, not to decide [a] motion tabula rasa," Est. of

Doerfler v. Fed. Ins. Co., 454 N.J. 298, 302 (App. Div. 2018).

Second, our review of the order is hampered by plaintiff's failure to

include the motion papers presented to the court. See R. 2:6-1(a)(1)(I)

(requiring the record on appeal contain all parts of the trial record "as are

essential to the proper consideration of the issues"). We have no obligation "to

attempt to review . . . an issue when the relevant portions of the record are not

included" on appeal. Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz

Donnelly Fried & Forte, P.C., 381 N.J. Super. 119, 127 (App. Div. 2005). And,

we have found appellate review of a motion order "impossible" where, as here,

an appellant "fail[s] to include in their appendix the notice of motion filed in the

trial court and whatever papers were submitted in support thereof." Soc'y Hill

Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div.

2002).

We therefore do not address or decide the merits of the numerous

arguments the parties present concerning Forest Hill's decision not to seek

A-0189-21

21

indemnification coverage from United. 4 Instead, we address only the merits of

the single issue decided by the motion court—plaintiff's purported lack of

standing—based on our conclusion the court's statement of reasons and the

parties' arguments on appeal permit a determination of that issue on the merits.

As noted, the court denied plaintiff's motion to compel Forest Hill to seek

indemnification under the United policy based on its adoption of the

determination of the court in the declaratory judgment action that plaintiff

lacked standing. As we have explained, the action for a declaratory judgment

United is obligated to provide indemnification coverage was properly dismissed

because plaintiff's claims were not ripe for adjudication and she therefore lacked

standing. See Lavrik, ___ N.J. Super. at ___ (slip op. at 11) (explaining

"standing will generally be found where the party seeking relief has sufficient

personal stake in the controversy to assure adverseness, and the controversy is

capable of resolution by the court" (emphasis added)).

Plaintiff's putative claim against Forest Hill rests on a different foundation

than her claim against United and, for that reason, her standing to assert the

4

As we explain, because we determine plaintiff has standing to challenge Forest

Hill's refusal to tender the claim to United, we remand all the other issues and

the parties' arguments for the trial court's consideration and determination in the

first instance based on a more fulsome record.

A-0189-21

22

claim against Forest Hill requires a different analysis. Unlike her putative

declaratory judgment claim against United, plaintiff's claim Forest Hill is

obligated to seek indemnification coverage from United is not subject to the no-

action provision of the policy and is not dependent on her obtaining a judgment

against Forest Hill or on her establishing all the terms of the policy have been

fully complied with. Rather, her claim is founded on the assertion that if Forest

Hill does not tender the claim to United immediately, and long prior to the return

of any verdict against Forest Hill, she will suffer the loss of the ability to recover

the proceeds of an insurance policy Forest Hill is required under the

Condominium Act and Forest Hill's by-laws to maintain in part for her benefit.

See Werrman v. Aratusa, Ltd., 266 N.J. Super. 471, 476 (App. Div. 1993)

(finding "compelling and persuasive" the reasoning "that an injured party

acquires an interest in an insurance policy which may be available to cover the

accident") (emphasis added) (quoting Eschle v. Eastern Freight Ways, Inc., 128

N.J. Super. 299, 306 (Law Div. 1974)).

Our liberal view of standing is premised on the principle that, "[i]n the

overall we have given due weight to the interests of individual justice, along

with the public interest, always bearing in mind that throughout our law we have

been sweepingly rejecting procedural frustrations in favor of 'just and

A-0189-21

23

expeditious determinations on the ultimate merits.'" Jen Elec., Inc. v. Cnty. of

Essex, 197 N.J. 627, 645 (2009) (quoting Crescent Park Tenants Ass'n v. Realty

Equities Corp., 58 N.J. 98, 107-08 (1971)). The Court explained "that principle

is premised on a core concept of New Jersey jurisprudence," specifically "that

our 'rules of procedure were not designed to create an injustice and added

complications but, on the contrary, were devised and promulgated for the

purpose of promoting reasonable uniformity in the expeditious and even

administration of justice.'" Ibid. (quoting Handelman v. Handelman, 17 N.J. 1,

10 (1954)).

Measured against these principles, we are convinced plaintiff has standing

to assert her claim Forest Hill breached a legal duty by failing to seek

indemnification coverage from United. As we have explained, she obtained an

interest in the policy at the moment she was injured, Dransfield, 5 N.J. at 194,

which could not be foreclosed by the actions of either Forest Hill or United, In

re Estate of Gardinier, 40 N.J. at 265. In our view, an injured party's interest in

a policy may also not be foreclosed by an insured's allegedly improper decision

not to timely request indemnification coverage.

An injured party's interest in the policy is that it provides a source of

recovery for the satisfaction of a judgment obtained against the insured.

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Werrman, 266 N.J. Super. at 475. That interest may be effectively forfeited by

an insured's decision not to timely tender a claim for coverage to the insurance

carrier. See, e.g., Cooper v. Gov't Emp. Ins. Co., 51 N.J. 86, 94 (1968). Thus,

depriving an injured party the opportunity to challenge the insured's decision

not to seek indemnification coverage until after a judgment is obtained against

the insured—by finding the injured party lacks standing—effectively allows the

insured to unilaterally forfeit an injured party's recognized interest in the policy.

Plaintiff has an interest in the policy and in Forest Hill's decision to risk

forfeiting plaintiff's potential recovery under the policy. She also has sufficient

adverseness to Forest Hill for standing to bring claims challenging the validity

of Forest Hill's decision not to seek indemnification coverage from United.

Lavrik, ___ N.J. Super. at ___ (slip op. at 11). Given Forest Hill's failure to

seek indemnification under the policy, and its clearly stated intention not to do

so, plaintiff faces a substantial likelihood of harm—the irretrievable loss of any

potential recovery under the policy—if she is denied standing to promptly

challenge the validity of Forest Hill's actions and decision. See In re Camden

County, 170 N.J. 439, 446-47 (2002) (explaining "[o]nly a substantial likelihood

of some harm visited upon the plaintiff in the event of an unfavorable outcome

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25

is needed for the purpose of standing") (quoting N.J. Chamber of Com. v. N.J.

Election Law Enf't Comm'n, 82 N.J. 57, 67 (1980)).

We apply the principles governing standing—"to aid justice and" to

"deprecate [the] 'procedural frustrations'"—that are undermined by the court's

determination plaintiff will not have standing to challenge Forest Hill's decision

and actions until it is too late to assure plaintiff's interest in the policy is

protected. Bondi, 423 N.J. at 436 (quoting Jen Elec., Inc., 197 N.J. at 645).

Because the court erred by denying plaintiff's motion to compel solely based on

its finding she lacked standing, we vacate the court's order denying plaintiff's

motion to compel and remand for further proceedings in accordance with this

opinion. Our remand order shall not be construed as an expression of an opinion

on the merits of plaintiff's claim she is entitled to the relief requested. "Standing

refers to the plaintiff's ability or entitlement to maintain an action before the

court," In re Baby T, 160 N.J. 332, 340 (1999) (quoting N.J. Citizen Action v.

Riviera Motel Corp., 296 N.J. Super. 402, 409 (App. Div. 1997)), and a finding

a plaintiff has standing "neither depends on nor determines the merits of a

plaintiff's claim," Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398,

417 (1991). We determine only plaintiff has standing to assert her claim

concerning Forest Hill's decision not to seek indemnification from United under

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the policy; the court shall address the merits of the claim Forest Hill could not

properly decide not to tender a claim based on the record and arguments

presented by the parties.

In ordering the remand, we observe plaintiff's request for relief in the

personal injury action was presented in an unusual, and in our view, incorrect

manner. Plaintiff's complaint in the personal injury action alleged only

negligence claims against Forest Hill. The complaint did not assert causes of

action alleging Forest Hill violated a legal duty—contractual or otherwise—by

deciding it would not tender a claim to United for indemnification under the

policy. See Sattelberger v. Telep, 14 N.J. 353, 363 (1954) (explaining

"[p]leading in civil actions is the means of raising issues for adjudication").

Indeed, plaintiff did not seek a declaratory judgment Forest Hill is legally

obligated to tender the claim to United in either the personal injury action or in

the declaratory judgment action she brought against United.

Nonetheless, despite the lack of any asserted cause of action against Forest

Hill seeking a declaratory judgment or other relief based on its decision not to

tender the claim, plaintiff moved for relief in the form of an order directing that

it seek indemnification coverage based on a cause or causes of action never

formally pleaded. Moreover, as plaintiff's counsel acknowledged during oral

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27

argument on appeal, there is no court rule that authorizes the granting of the

relief sought in plaintiff's motion to compel Forest Hill to tender the claim to

United.5

We appreciate the process—a motion to compel—employed by plaintiff

to seek the requested relief was not challenged in the motion court and has not

been challenged on appeal. We also recognize parties may "waive formal

pleading of operative facts and by consent submit an issue to the court for

determination." Sattelberger, 14 N.J. at 363. And, again, because the record on

appeal does not include the motion papers, we are unable to fully assess the

manner, and the applicable court rules under which, the substantive issues were

actually presented to the motion court. It appears, however, that regardless of

the manner in which she framed her request for relief, plaintiff's motion to

compel constituted the functional equivalent of a motion for summary judgment

5

During oral argument, plaintiff's counsel correctly noted Rule 4:10-2(b)

provides a party may obtain discovery concerning the existence and contents of

any insurance agreement under which a person or entity may be liable to satisfy

a judgment. The Rule does not authorize a court to grant a motion to compel a

person or entity to seek coverage under a policy, and, although we have not been

provided with the motion papers presented to the trial court, it does not appear

plaintiff relied on Rule 4:10-2(b) as grounds supporting its motion to compel

Forest Hill to tender an indemnification claim to United.

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on a non-pleaded claim made without compliance with the requirements of the

applicable rules. See R. 4:46-1 to -6.

In our view, to properly present the pertinent issues to the trial court, and

to create the record necessary for any future appellate review, the relief sought

by plaintiff should be founded on the assertion in a complaint of the causes of

action she contends support her request for a judgment compelling Forest Hill

to seek indemnification under the policy, with the concomitant opportunity for

Forest Hill to properly respond to the claims asserted, see Spring Motors

Distributors, Inc. v. Ford Motor Co., 191 N.J. Super. 22, 29 (App. Div. 1983),

aff'd in part rev'd in part on other grounds, 98 N.J. 555 (1985) ("To be adequate,

a pleading must contain a statement of facts on which a claim is based, showing

that the pleader is entitled to relief, and a demand for judgment for that relief"

therefore providing a defendant with the opportunity to respond fully and

properly through an answer), and with the disposition of the asserted claims in

accordance with the Rules of Court. Thus, on remand, plaintiff shall be

permitted to move to amend her complaint in the personal injury action or file a

separate complaint in a declaratory judgment action to assert whatever causes

of action she contends support her claim Forest Hill breached a legal duty by

failing to seek indemnification from United and her request for a judgment. All

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motions and any complaint filed shall be adjudicated in accordance with the

applicable Rules of Court.

In A-0189-21, the court's order dismissing the declaratory judgment

complaint without prejudice is AFFIRMED. In A-1002-21, the court's order

denying Forest Hill's motion to compel is REVERSED, and the matter is

REMANDED for further proceedings in accordance with this opinion. We do

not retain jurisdiction.

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