Malzberg v. Josey

• Decision Date: 27 September 2022
• Docket Number: DOCKET NO. A-2883-20
• Citation: Malzberg v. Josey, 473 N.J.Super. 537, 282 A.3d 1109 (N.J. Super. App. Div. 2022)
• Parties: Scott C. MALZBERG, a/k/a Scott Malzberg, Plaintiff-Appellant, v. Caren L. JOSEY, James River Insurance Company, Portier, LLC, and Rider Insurance Company, Defendant-Respondents.
• Court: New Jersey Superior Court — Appellate Division

473 N.J.Super. 537

282 A.3d 1109

Scott C. MALZBERG, a/k/a Scott Malzberg, Plaintiff-Appellant,

v.Caren L. JOSEY, James River Insurance Company, Portier, LLC, and Rider Insurance Company, Defendant-Respondents.

DOCKET NO. A-2883-20

Superior Court of New Jersey, Appellate Division.

Submitted September 13, 2022

Decided September 27, 2022

Davis, Saperstein & Salomon, PC, attorneys for appellant (Grace E. Robol, of counsel and on the briefs).

Goetz, Schenker, Blee & Wiederhorn, attorneys for respondent James River Insurance Company (Daniel Szep, on the brief).

Before Judges Sumners, Geiger, and Susswein.

The opinion of the court was delivered by

SUSSWEIN, J.A.D.

Plaintiff Scott C. Malzberg appeals from the January 25, 2019 Law Division order granting summary judgment in favor of defendant James River Insurance Company (James River), dismissing plaintiff's claim for underinsured motorist coverage. This case presents a question of first impression regarding the scope of the Transportation Network Company Safety and Regulatory Act (TNCSRA or Act), N.J.S.A. 39:5H-1 to -27. Plaintiff was injured in a motor vehicle accident while he was operating his motorcycle as an Uber Eats delivery driver. The sole legal issue raised in this appeal is whether the Act—which requires "transportation network companies" (TNCs) to provide at least $1.5 million in underinsured motorist coverage—applies to food delivery services, such as Uber Eats.

In granting summary judgment dismissal, Judge Stephen L. Petrillo held that the Act only regulates companies that use a digital network such as a mobile phone application (app) to connect a "rider" to a "prearranged ride." See N.J.S.A. 39:5H-2. Judge Petrillo concluded that the Act applies only to the prearranged transport of persons and not to the delivery of food. We agree. Nothing in the statutory text or legislative history of the TNCSRA suggests that the Legislature intended to regulate app-based food delivery services.

I.

We discern the following pertinent facts and procedural history from the record. On June 30, 2017, plaintiff enrolled with defendant Portier, LLC (Portier) to use his personal vehicle—a motorcycle—to deliver food. Portier generates leads to independent food delivery service providers—the drivers—through a mobile phone application known as Uber Eats.¹ The Uber Eats app allows food delivery service providers and restaurants to connect with each other so that they can fulfill orders placed by consumers.

Plaintiff was required to sign a "Technology Services Agreement" with Portier. Section 8.3 of that agreement provides:

You understand and acknowledge that your own insurance policy (e.g., automobile or other liability insurance policy) may not afford liability, comprehensive, collision, medical payments, personal injury protection, uninsured motorist, underinsured motorist, damage to property in your care, custody and control, or other coverage for the Delivery Services you provide pursuant to this Agreement. If you have any questions or concerns about the scope or applicability of your own insurance coverage, it is your responsibility, not that of [Portier], to resolve them with your insurer(s).

Section 8.4 of the Services Technology Agreement further provides that:

[Portier] may maintain during the term of this Agreement insurance related to your provision of Delivery Services as determined by [Portier] in its reasonable discretion, provided that [Portier] and its Affiliates are not required to provide you with any specific insurance coverage for any loss to your Transportation Method or injury to you.

On August 17, 2017, plaintiff was in the process of making a food delivery for Uber Eats when a vehicle driven by defendant Caren L. Josey (Josey) made a left turn onto the Route 17 entrance ramp in Hackensack and collided with plaintiff's motorcycle. Plaintiff was thrown from the motorcycle and sustained significant injuries requiring multiple surgeries.

Josey was insured by CURE Auto Insurance with bodily injury liability coverage limited to $15,000 per person and $30,000 per accident. Plaintiff's injuries exceeded the limits of Josey's personal auto insurance policy.

Portier had procured a business auto insurance policy from James River. That policy provides in pertinent part, "[w]e will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’ " The James River policy defines an "insured" to include "Delivery Drivers" who have entered into a contract to use the "UberPartner Application" and who have logged into the "UberPartner Application." Importantly, however, the James River policy does not provide underinsured motorist benefits.

On November 6, 2017, plaintiff filed a complaint against Josey claiming negligence. On December 28, 2017, plaintiff filed an amended complaint, adding James River as a defendant and seeking coverage from James River for plaintiff's injuries that exceeded the limits of Josey's personal auto insurance policy. On February 8, 2018, plaintiff filed a second amended complaint, adding Portier as a defendant. Plaintiff alleged in the second amended complaint that, at the time of the accident, he was "employed and/or insured with [Portier], the insured of defendant [James River]" and claimed that he is "entitled to underinsured motorist benefits from defendant [James River]." On April 16, 2018, plaintiff filed a third amended complaint, adding Rider Insurance Company as a defendant.²

On October 12, 2018, the complaint against Portier was dismissed without prejudice and that matter was compelled to arbitration. The complaints against the other defendants were not affected by the order to compel arbitration.

Following the exchange of discovery, James River filed a motion for summary judgment seeking dismissal of the complaint against it with prejudice. On January 25, 2019, Judge Petrillo convened oral argument on James River's motion for summary judgment. At the conclusion of the hearing, the judge rendered an opinion on the record and issued an order granting James River's motion for summary judgment and dismissing the complaint with prejudice as to all claims against James River. The January 25, 2019 order is the subject of the present appeal.

On May 4, 2020, a stipulation of dismissal with prejudice was filed with respect to the complaint against Josey. A stipulation of dismissal with prejudice was filed as to defendant Rider Insurance Company on June 29, 2020. The complaint against Portier—which had been dismissed without prejudice when that matter was compelled to arbitration—was reinstated and restored to the active trial calendar by order dated March 10, 2021. A stipulation of dismissal with prejudice as to Portier was filed on May 11, 2021. The present appeal was filed on June 15, 2021.

Plaintiff raises the following contention for our consideration:

POINT I:

THE TRIAL COURT IMPROPERLY GRANTED THE SUMMARY JUDGMENT MOTION.

II.

We first address James River's contention that plaintiff's appeal was filed untimely pursuant to Rule 2:4-1(a), which generally requires that appeals from final judgments be filed within forty-five days of their entry. A judgment is deemed to be final when all claims as to all parties are resolved. See R. 2:2-3(b) ("Final judgments of a court, for appeal purposes, are judgments that finally resolve all issues as to all parties."). James River argues that the forty-five-day deadline for filing this appeal started to run when the stipulation of dismissal with prejudice was filed as to defendant Rider Insurance Company on June 29, 2020. We disagree; the forty-five-day deadline started to run when the claims against Porter were resolved.

Rule 2:2-3(a) governs the right to appeal from final judgments and delineates various orders that, although interlocutory, are deemed final for purposes of filing an appeal as of right. GMAC v. Pittella, 205 N.J. 572, 583, 17 A.3d 177 (2011). In Pittella, our Supreme Court addressed "whether an order compelling arbitration as to one or more, but not all, claims and parties is final for purposes of appeal." 205 N.J. at 574, 17 A.3d 177. The Court exercised its rulemaking authority to amend Rule 2:2-3(a) to add orders compelling arbitration to the list of interlocutory orders that are deemed final for purposes of appeal.

Id. at 586, 17 A.3d 177. To dispel any doubts about the need to seek timely appellate review of an order compelling arbitration, the Court admonished, "[b]ecause the order shall be deemed final, a timely appeal on the issue must be taken then or not at all." Ibid. The Court reasoned that "[a] party cannot await the results of compelled arbitration and gamble on the results" before filing an appeal. Ibid.

The appeal before us is distinguishable from the circumstances in Pittella. In that case, Pittella appealed from the order compelling arbitration. In contrast, in the present matter, the subject matter of the appeal brought by plaintiff is not related to the October 12, 2018 order to compel arbitration of plaintiff's claim against Portier. Rather, plaintiff appeals from the order granting summary judgment dismissal in favor of James River. We agree with plaintiff that, in this case, the claims against all parties were not finally resolved for purposes of Rule 2:2-3(a) until the complaint against Portier was resolved through the stipulation of dismissal entered on May 11, 2021. Thus, the present notice of appeal, filed on June 15, 2021, was timely filed within forty-five days of that milestone.

III.

We turn next to the novel substantive issue plaintiff raises. Rule 4:46-2(c) directs that summary judgment shall be granted "forthwith 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...