Culver v. Insurance Co. of North America

• Decision Date: 01 December 1987
• Citation: 221 N.J.Super. 493,535 A.2d 15
• Parties: James CULVER and Loretta Culver, Plaintiffs-Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 493

221 N.J.Super. 493

535 A.2d 15

James CULVER and Loretta Culver, Plaintiffs-Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 10, 1987.

Decided Dec. 1, 1987.

Michael F. Chazkel, for plaintiffs-appellants (Glenn A. Bergenfield of counsel and on the brief).

Gennet and Kallmann, for defendant-respondent (Jory E. Miller, on the brief).

Before Judges PRESSLER, MUIR, Jr. and CONLEY.

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

Plaintiffs-insureds, who suffered an underinsured fire loss caused by the negligence of others, entered into an agreement with their casualty insurer respecting the division between them of the proceeds of the insurer's subrogation action against the tortfeasors. They claim that the agreement, procured by the insurer's fraud and misrepresentation, was unreasonable and inequitable. The question on appeal is whether, under the circumstances here, they are barred by any preclusionary doctrine from obtaining relief from that agreement and from an order enforcing it which was entered in the subrogation action. We hold that they are not, and accordingly, we reverse the summary judgment which dismissed the complaint of plaintiffs James and Loretta Culver against their insurer, defendant Insurance Company of North America (INA).

The facts, as we are able to glean them from the regrettably sparse record, are as follows. In November 1981 plaintiffs' home was destroyed by a fire which was apparently caused by a malfunction in a gas stove manufactured by General Electric Company. They had purchased the stove shortly before the fire from Better Living Department Stores, Inc., which had also installed it. It is not clear whether there was a defect in the stove or in its installation or both. In any event, plaintiffs submitted a proof of loss to their fire insurance carrier, INA, making claim for damages in the amount of some $185,000. It appears that plaintiffs were underinsured. The limit of their coverage was $82,373.12, which INA paid plaintiffs, taking back from them an assignment of their rights against the two alleged tortfeasors. INA then commenced its subrogation action against both in plaintiffs' name. INA controlled that litigation in all respects although plaintiffs had their own counsel with whom they and INA appear to have consulted from time to time.

Insofar as we can determine from certifications filed both in that action and this one, the parties conducted "extensive discussions" relatively early on in the course of the subrogation litigation "to resolve how any settlement or judgment would be divided between the parties." As the certification of INA's attorney explains, following a meeting participated in by him, plaintiffs and plaintiffs' personal attorney, "a preliminary agreement was established whereby the insurance carrier would first be satisfied from any proceeds. INA would be responsible for all costs and expenses of the litigation, and the Culvers would receive a reduced attorney's fee of 25%." This agreement was thereafter modified just prior to trial of the subrogation action. The terms of the modification agreement provided, astonishingly, that INA would receive 80% of the proceeds of the action and the insureds 20%. In his certification, INA's attorney explained the reason for this change as follows:

Subsequent to that date, problems with liability developed and it became apparent that the initial $82,373.12 paid by INA might never be reached. The Culvers could not be expected to agree to any settlement that would not pay them any money and as an accommodation substantial effort was made by myself and Steven Kropf to reach a new agreement that would split any recovery on a pro rata basis. The Culvers insisted that they bear no risk for litigation expenses in the event the case was lost and wanted to maintain minimal attorneys' fees on their portion of any recovery.

The issues of liability and damages in the subrogation action were bifurcated, and during the liability trial, INA reached a settlement with General Electric, releasing it for the sum of $25,000. That sum was forthwith disbursed to INA and plaintiffs in accordance with the 80/20 agreement. The liability verdict reached by the jury at the conclusion of trial assessed 100% of negligence against Better Living Department Store and zero percent against General Electric. The matter was then set down for trial of the damages issue. On the trial date, INA negotiated a settlement with Better Living Department Store in the amount of $135,000 and obtained the consent of plaintiff Loretta Culver to its acceptance. ¹ INA's attorney in fact called Mrs. Culver to the stand to state her understanding and agreement on the record. In a perfunctory proceeding consuming two pages of transcript, she was asked if she agreed to the settlement of $135,000 and if the arrangement she had reached with INA "how that money is to be divided between yourself and the insurance carrier" was satisfactory. She indicated her assent to both questions. The terms of the "arrangement" with INA, unlike the terms of the settlement with Better Living, were not, however, placed on the record, and it does not appear that at that time the trial judge had any idea, nor did he inquire, as to what they were.

Some time after the February 1986 date of the settlement and plaintiff's record concurrence therein, INA's attorney apparently proffered plaintiff her share of the settlement proceeds. It appears that the proffer, predicated on the 80/20 agreement and calculated on the basis of the total settlement of $160,000 (which included General Electric's $25,000 payment), allocated $23,583.33 to plaintiffs, $92,000 to INA, and $44,416.67 for legal fees and costs. Realizing that by this calculation INA would receive from the proceeds of the settlement more than it had paid out to her on the policy coverage and that her total recovery, both by way of the policy limit and the settlement proceeds, would be substantially less than her loss, plaintiff refused to accept this disbursement proposal.

Consequently, in May 1986 INA's attorney moved the court for an order directing disbursement in accordance with the agreement, and plaintiff, now represented by her present attorney, responded by filing a cross-motion which also sought "an order permitting the disbursement of proceeds." Plaintiff's certification in support of this uninformatively and inexactly phrased claim for relief did not propose an alternative disbursement scheme. Rather, it merely asserted her resistance to INA's distributive proposal based on what she described as the "misinformation" given her both by INA's attorney and her own. In brief, it was her position that INA's attorney assured both her and her attorney that INA, as a matter of law, was entitled to reimbursement of the $82,373.12 it had paid her on the policy plus 12% interest before she would be entitled to any share in the proceeds of the subrogation suit. She further asserted that INA's attorney assured her that the net recovery in the subrogation action "could not be in excess of $82,373.12." She therefore agreed to accept 20% of the recovery, which she claimed she was given to understand was her only alternative to receiving no portion of the recovery at all.

At the hearing on the motion and cross-motion for disbursement, the trial judge apparently understood plaintiff's claim to be a request to be relieved from the settlement agreement with Better Living with which she was thereafter dissatisfied. The transcript of the argument indicates to us that the trial judge failed entirely to distinguish, on the one hand, between the settlement agreement entered into between the tortfeasors and Mrs. Culver, as the nominal plaintiff, by which the subrogation action was terminated and, on the other hand, the agreement between plaintiff and INA respecting the disbursement of the settlement proceeds. Accordingly, the trial judge neither inquired into nor addressed plaintiff's assertions respecting her agreement with INA but rather considered only the settlement with the tortfeasors. Noting that "we can't relitigate cases," the trial judge refused to set that settlement aside, but no one was asking him to. Thereafter, INA's attorney submitted a form of order memorializing its earlier proffer. That order was entered on June 16, 1986.

Plaintiff did not appeal from the disbursement order, although it was clearly appealable. R. 2:2-3(a)(1). Nor did she file a motion pursuant to R. 4:50-1 for relief from that order, although that procedure too would have been an appropriate vehicle for placing before the court the nature and basis of her claim for relief from her allocation agreement with INA. Instead, on September 24, 1986, just three weeks after the running of the time to appeal as extendable, plaintiff filed the complaint in this action against INA. Alleging that her consent to the distributive agreement was obtained by INA in breach of its fiduciary obligation to her and by misrepresentation of both fact and law on which she relied, she sought compensatory and punitive damages, "just and equitable" settlement, attorney's fees, interest and costs. INA, relying on the June 16, 1986 order in the subrogation action, moved for summary judgment dismissing the complaint on the ground of res judicata. The motion was granted. Plaintiff appeals. We reverse.

At the outset, we are persuaded that if plaintiff's version of the circumstances leading to and surrounding her 80/20 agreement with INA is credited, she would clearly be entitled to relief therefrom and consequently to relief from the June 16, 1986 order which enforced it. We are convinced that this conclusion is compelled by basic principles of subrogation law. Subrogation is, of course, an equitable remedy based upon the common-law concept that the burden for the ultimate...