Dailey v. Borough of Highlands
Decision Date | 28 October 2020 |
Docket Number | DOCKET NO. A-3475-18T2 |
Parties | DEBBY DAILEY, Plaintiff-Respondent, v. BOROUGH OF HIGHLANDS, BRIAN GEOGHEGAN, PAUL VITALE and BRIAN CHABAREK, ESQ., Defendants-Respondents, and BRIAN CHABAREK, ESQ., Third-Party Plaintiff-Respondent, v. MONMOUTH COUNTY MUNICIPAL JOINT INSURANCE FUND, Third-Party Defendant-Appellant. |
Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3351-17.
Jessica V. Henry argued the cause for third-party defendant/appellant (Cleary Giacobbe Alfieri Jacobs LLC, attorneys; Jessica V. Henry, of counsel and on the briefs).
James A. Paone, II argued the cause for third-party plaintiff/respondent (Davison, Eastman, Muñoz, Paone, PA, attorneys; James A. Paone, II, of counsel and on the brief; Kaitlyn R. Campanile, on the brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
Third-party defendant Monmouth County Municipal Joint Insurance Fund (JIF) appeals from the March 8, 2019 order of the Law Division denying its motion to dismiss the third-party complaint of defendant/third-party plaintiff Brian Chabarek, Esq. We vacate the order and remand.
The following facts are derived from the record. Plaintiff Debby Dailey, an employee of defendant Borough of Highlands, filed a complaint in the Law Division against the borough and three municipal officials seeking damages for physical injuries she suffered when she fell through the attic floor of a buildingowned by the municipality. Dailey alleges she was directed by Chabarek, the township attorney, and defendant Brian Geoghegan, the borough administrator, to enter the building, which had previously been deemed unsafe and in need of demolition by defendant Paul Vitale, the borough code official. According to plaintiff, the defendants sent her into the building to retrieve an archived file, even though they were aware that other borough employees had been injured as a result of the dangerous condition of the structure.
Chabarek requested defense and indemnification as a third-party beneficiary of an insurance policy issued to the borough by JIF, a statutory organization in which the borough is a member. JIF, through its administrator, declined Chabarek's request, taking the position that the policy excludes coverage for damages for personal injuries arising out of rendering a professional service. Chabarek thereafter filed a third-party complaint against JIF, seeking a declaratory judgment that he is entitled to defense and indemnification coverage under the policy.
JIF moved to dismiss the third-party complaint, arguing the borough had agreed on behalf of its third-party beneficiaries to arbitrate coverage disputes under the policy. In support of its argument, JIF relied on the following provisions of the policy:
It is unclear from the record whether the municipality took a position on JIF's motion.
Thus, the court concluded, there was no evidence of a "mutual assent to waive adjudication by a court of law." A March 8, 2019 order memorializes the court's decision.
This appeal followed. JIF raises the following arguments:
We apply a de novo standard of review to the trial court's determination of the enforceability of a contract provision. Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019). "The enforceability of arbitration provisions is a question of law; therefore, it is one to which we need not give deference to the analysis by trial court." Ibid.
Federal and state statutes express a general policy favoring arbitration. Atalese, 291 N.J. at 440; see also 9 U.S.C.A. §§ 1 to 16; N.J.S.A. 2A:23B-1 to -32. "The public policy of this State favors arbitration as a means of settling disputes that otherwise would be litigated in a court." Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 556 (2015). "Because of the favored status afforded to arbitration, '[a]n agreement to arbitrate should be read liberally in favor of arbitration.'" Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A.,168 N.J. 124, 132 (2001) (quoting Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993)). Although enforcement is favored, that "does not mean that every arbitration clause, however phrased, will be enforceable." Atalese, 219 N.J. at 441.
A valid arbitration clause "must state its purpose clearly and unambiguously." Id. at 435. In addition, an agreement to arbitrate "must be the product of mutual assent," which "requires that the parties have an understanding of the terms to which they have agreed." Id. at 442 (quoting NAACP v. Foulke Mgmt., 421 N.J. Super. 404, 424 (App. Div. 2011)). A party "cannot be required to arbitrate when it cannot fairly be ascertained from the contract's language that she knowingly assented to the provision's terms or knew that arbitration was the exclusive forum for dispute resolution." Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 322 (2019).
In Atalese, the Supreme Court invalidated an arbitration provision of a consumer contract of adhesion because it: (1) did not include an explanation that the plaintiff was waiving her right to seek relief in court; (2) did not explain what arbitration is or how it differs from...
To continue reading
Request your trial