LIGIA RIZESCU VS. SELECTIVE INSURANCE COMPANY OF AMERICA (L-3757-18, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3794-19

LIGIA RIZESCU and
TIMOTHY KING,

Plaintiffs-Appellants,

v.

SELECTIVE INSURANCE
COMPANY OF AMERICA,

Defendant-Respondent.
_________________________

Submitted March 22, 2021 – Decided April 16, 2021

Before Judges Sabatino and Currier.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-3757-18.

Louis E. Granata, attorney for appellant.

Kutak Rock, LLP, attorneys for respondent (Michael T.
McDonnell, III, and Jane C. Silver, of counsel and on
the brief).

PER CURIAM
 Ligia Rizescu and Timothy King ("plaintiffs" or the "homeowners")

appeal the Law Division's final orders that (1) dismissed their claims against

defendant Selective Insurance Company of America ("Selective"), and (2)

granted summary judgment declaring that Selective has no obligation to pay to

plaintiffs any sums on a settlement they negotiated with Selective's policyholder

without the insurer's knowledge and approval.

Plaintiffs contend that, in ruling in favor of Selective, the trial court

misapplied various legal principles, including, among other things, res judicata

and the entire controversy doctrine.

We reject plaintiffs' arguments and affirm. We do so substantially for the

sound reasons expressed in the successive written opinions of Judge Linda

Grasso Jones dated October 22, 2019 and April 13, 2020.

I.

In essence, this matter stems from plaintiffs entering into a $400,000

litigation settlement with a company that had virtually no assets, while failing

to assure that the company's liability insurer, Selective, participated in and

approved of that settlement before it was consummated.

The First Lawsuit

The underlying first lawsuit in the Law Division, Docket No. MON-L-

1629-16, started as essentially a collections case filed by Schaefer Remodeling,

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LLC ("Schaefer"), against its customers, Rizescu and King. Schaefer sought

payment from the homeowners for unpaid sums on a remodeling contract that

was partially completed before they terminated Schaefer from the job.

Through their attorney, Rizescu and King filed a counterclaim against

Schaefer in the first lawsuit. Their counterclaim asserted five counts alleging:

(1) violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, (2)

breach of contract, (3) negligence, (4) unjust enrichment, and (5) breach of the

implied covenant of good faith and fair dealing.

Schaefer sought a defense and indemnification on the counterclaim from

its liability insurance carrier, Selective. Selective denied a duty to defend and

indemnify Schaefer on the counterclaim except for the third count, the

negligence claim, which it conditionally agreed to defend under a reservation of

rights.

Selective retained the law firm of Zirulnik, Sherlock & DeMille to defend

Schaefer against the homeowners' negligence claim. Schaefer continued to be

represented by its counsel, Glen A. Vida, Esq., on all the other claims in the

underlying litigation.

The case went to non-binding, court-annexed arbitration in October 2017.

The arbitrator recommended an award of $74,196 to the homeowners on their

counterclaim, corresponding to a refund of what they had paid Schaefer. The

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arbitrator found "no proof" of the negligence claim. Schaefer filed a de novo

demand for a jury trial, thereby nullifying the arbitration award.

As the result of a settlement conference in February 2018, Schaefer agreed

to release Selective from any further defense and indemnity obligation under the

insurance policy, in exchange for a $10,000 payment to Schaefer. The

homeowners were not a party to that settlement, although their counsel learned

about it before entering into the $400,000 settlement with Schaefer. The release

was signed on February 9, 2018.

Following the release, on March 2, 2018, Vida (Schaefer's personal

attorney) and Zirulnik filed a substitution of counsel with the trial court,

pursuant to Rule 1:11-2(a)(2), replacing the Zirulnik firm on count three with

Vida.

On the scheduled trial date in May 2018, after a settlement conference

before Judge Dennis O'Brien attended by plaintiffs' attorney and Schaefer's

personal counsel Vida, a settlement was reached. Specifically, Schaefer agreed

to dismiss its claims against Rizescu and King and confessed judgment in the

amount of $400,000 on their counterclaim. The settlement did not co ntain an

admission of liability. It did not specify an allocation of the $400,000 among

the five counts of the homeowners' counterclaim.

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 Notably, the $400,000 figure is an amount well above the arbitration

award. The large sum was agreed to despite the fact that, according to Vida,

Schaefer, a limited liability company, had few or no assets. 1

There is no dispute that the $400,000 settlement was entered into without

Selective's knowledge or consent. The defense counsel assigned by Selective

did not attend the settlement conference. Nor did that counsel or any Selective

representative sign the settlement documents.

Three days after the judgment was entered on the settlement, plaintiffs'

attorney contacted Selective, demanding payment of the $400,000 settlement

amount. Selective declined to do so.

Meanwhile, on July 11, 2018, Schaefer filed a petition for bankruptcy.

Apparently plaintiffs have not obtained any payments through the bankruptcy

proceedings, and we presume the $400,000 judgment against Schaefer remains

unsatisfied.

1
The briefs suggest the $400,000 figure roughly might reflect a trebling of
plaintiffs' claimed actual damages, plus attorneys fees recoverable under the
consumer fraud statute.

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 The Second Lawsuit

Thereafter, Rizescu and King filed the present lawsuit, Docket No. MON-

L-3757-18, seeking payment from Selective of the $400,000 settlement amount. 2

Selective filed a counterclaim seeking to have the court declare it has no

responsibility for the settlement attained without its involvement.

Before discovery ended, plaintiffs moved for summary judgment in their

favor, which Judge Grasso Jones denied in an initial October 22, 2019 written

opinion. In that four-page opinion, the court rejected plaintiffs' argument that

Selective's counterclaim seeking a declaration of its non-liability was barred by

the entire controversy doctrine. Several months later, Selective moved for

summary judgment, which the court granted with a more detailed fourteen-page

written opinion dated April 13, 2020.

The Appeal

This appeal ensued. Plaintiffs maintain the trial court erred in its analysis

and application of the principles of entire controversy and res judicata. They

2
Rizescu and King have filed a separate lawsuit in the Law Division, Docket
No. MON-L-4295-18, against Schaefer and various related entities, alleging
civil racketeering ("RICO") violations in light of Schaefer's bankruptcy filing.
The trial court reportedly denied a motion to consolidate the RICO lawsuit with
the present case. We make no comment about the merits or viability of that civil
action.

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seek reversal of the trial court's decisions, with a determination by this court that

the $400,000 settlement was covered under the liability policy and must be paid

by Selective.

II.

In evaluating this appeal, we are guided by time-honored principles. We

review the trial court's summary judgment rulings de novo, applying the familiar

legal standards that govern such motions. Steinberg v. Sahara Sam's Oasis,

LLC, 226 N.J. 344, 349-50 (2016).

Our courts on summary judgment must consider the factual record, and

reasonable inferences that can be drawn from those facts, "in the light most

favorable to the non-moving party" to decide whether the moving party was

entitled to judgment as a matter of law. IE Test, LLC v. Carroll, 226 N.J. 166,

184 (2016) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995)); R.

4:46-2(c).

Apart from these procedural aspects of summary judgment motions, we

are also guided by well-settled legal principles of New Jersey's entire

controversy doctrine and the concept of res judicata. Before plunging into a

discussion of those principles, we first make some important predicate

observations concerning insurance law and the terms of Selective's insurance

policy in this case.

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 Applicable Statutes and the Clear Terms of Selective's Policy

As a New Jersey home contractor, Schaefer was required by applicable

statutes and regulations to maintain liability insurance coverage. See N.J.S.A.

56:8-136 to -152; N.J.A.C. 13:45A-17.1 to -17.14. Here, Schaefer obtained such

a policy from Selective, with a coverage limit of $1 million.

The policy Selective issued to Schaefer states in pertinent part:

1. Bankruptcy

Bankruptcy or insolvency of the insured or of the
insured's estate will not relieve us of our obligations
under this Coverage Part. [3]

3
This language comports with the requirements set forth in N.J.S.A. 17:28 -2,
which states in relevant part:

No policy of insurance against loss or damage resulting
from accident to or injury suffered by an employee or
other person and for which the person insured is liable
. . . shall be issued or delivered in this state by any
insurer authorized to do business in this state, unless
there is contained within the policy a provision that the
insolvency or bankruptcy of the person insured shall
not release the insurance carrier from the payment of
damages for injury sustained or loss occasioned during
the life of the policy, and stating that in case execution
against the insured is returned unsatisfied in an action
brought by the injured person, or his personal
representative in case death results from the accident,
because of the insolvency or bankruptcy, then an action
may be maintained by the injured person, or his
personal representative, against the corporation under

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2. Duties In the Event Of Occurrence, Offense,
Claim Or Suit

....

d. No insured will, except at that insured's
own cost, voluntarily make a payment,
assume any obligation, or incur any
expense, other than for first aid, without
our consent.

3. Legal Action Against Us

No person or organization has a right under this
[Commercial General Liability] 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

the terms of the policy for the amount of the judgment
in the action not exceeding the amount of the policy.

[(Emphasis added).]

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 liability signed by us, the insured and the claimant or
the claimant's legal representative.

[(Emphasis added).]

By these plain terms, the policy requires "an agreed settlement" signed by

Selective or a "final judgment" for Selective to pay damages incurred by a third

party due to Schaefer's actions.

Additionally, although the bankruptcy of an insured—in this case

Schaefer—does not itself relieve Selective of an obligation to pay, such an

obligation does not arise "for damages that are not payable" under the policy.

Nor is Selective obligated to pay damages agreed to voluntarily by the insured

without Selective's consent. As the trial court correctly recognized, the latter

situation exists here.

Selective did not consent to the $400,000 settlement. Indeed, its counsel

was not even present at the conference with Judge O'Brien that produced the

$400,000 settlement and the associated judgment.

We incorporate by reference and adopt Judge Grasso Jones's findings with

respect to these critical points:

[T]he settlement between Schaefer and Rizescu and
King constituted a voluntary payment assumed by
Schaefer alone and without the consent or agreement of
Selective. Selective was not a party to the underlying
lawsuit and was not a party to the agreement entered
into between Schaefer and Rizescu and King. At the

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 time of the entry of the May 2018 settlement, Schaefer
was represented by its own personally-retained counsel,
. . . Vida . . . .

In a footnote, the judge properly rejected plaintiffs' contention that

Selective was "in a sense" a party to the underlying lawsuit because an attorney

had been assigned by Selective to represent Schaefer on the homeowners' third

count of negligence. As the judge recognized, an attorney's dual representation

of the competing interests of both Schaefer and the insurance company on

coverage issues would have been unethical:

As a matter of law . . . counsel—who was no longer
involved in the case at the time of the settlement
between Schaefer and Rizescu and King—represented
Schaefer, not Selective, and any view otherwise would
clearly bestow upon that attorney a clear conflict of
interest. The attorney assigned by the insurance carrier
to provide a defense to the insured does not and cannot
represent the interests of the insurance carrier.

See also N.J. RPC 1.7 (ethics rule disallowing concurrent conflicts of interests);

Bartels v. Romano, 171 N.J. Super. 23, 29 (App. Div. 1979) (underscoring the

"unswerving allegiance" that an attorney who has been assigned to represent an

insured owes to that client, thereby prohibiting the attorney from also

representing the separate interests of the insurer).

In sum, when plaintiffs negotiated the $400,000 settlement with Schaefer,

Selective was not in the case and was not being represented by counsel. The

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clear terms of the insurance policy required Selective's approval of any

settlement in order for its coverage to extend to the settlement amount. Lacking

such approval, Schaefer and plaintiffs acted on their own. And, as described by

Vida during his deposition, they agreed to have "an empty judgment" entered

against an LLC that had only "limited assets." Quite simply, the insurer cannot

be stuck after-the-fact with that deal.

The procedural concepts of entire controversy and res judicata do not

undermine this clear outcome. We address them, in turn.

Entire Controversy

The entire controversy doctrine, as codified in Rule 4:30A,4 generally

requires the parties to an action to raise all transactionally related claims in that

action. It is an equitable preclusion doctrine that "seeks to assure that all aspects

of a legal dispute occur in a single lawsuit." Olds v. Donnelly, 150 N.J. 424,

431 (1997).

4
Rule 4:30A, entitled "Entire Controversy Doctrine," states, in relevant part:

Non-joinder of claims required to be joined by the
entire controversy doctrine shall result in the preclusion
of the omitted claims to the extent required by the entire
controversy doctrine, except as otherwise provided by
R. 4:64-5 (foreclosure actions) and R. 4:67-4(a) (leave
required for counterclaims or cross-claims in summary
actions).

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 As our Supreme Court recently explained, "[t]he entire controversy

doctrine 'seeks to impel litigants to consolidate their claims arising from a single

controversy whenever possible.'" Dimitrakopoulos v. Borrus, Goldin, Foley,

Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 98 (2019) (quoting Thornton v.

Potamkin Chevrolet, 94 N.J. 1, 5 (1983)). The doctrine generally disfavors

successive suits regarding the same controversy. See DiTrolio v. Antiles, 142

N.J. 253, 267 (1995).

Even so, "the boundaries of the entire controversy doctrine are not

limitless. It remains an equitable doctrine whose application is left to judicial

discretion based on the factual circumstances of individual cases." Highland

Lakes Country Club & Cmty. Ass'n v. Nicastro, 201 N.J. 123, 125 (2009)

(quoting Oliver v. Ambrose, 152 N.J. 383, 395 (1998)). As such, "the polestar

for the application" of the doctrine is "judicial fairness," Dimitrakopoulos, 237

N.J. at 114 (quoting K-Land Corp. No. 28 v. Landis Sewerage Auth., 173 N.J.

59, 74 (2002)), and "a court must apply the doctrine in accordance with equitable

principles, with careful attention to the facts of a given case." Ibid.

The doctrine should not be applied "where to do so would be unfair in the

totality of the circumstances and would not promote any of its objectives,

namely, the promotion of conclusive determinations, party fairness, and judicial

economy and efficiency." Ibid. (quoting K-Land, 173 N.J. at 70). When

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analyzing fairness, "courts should consider fairness to the court system as a

whole, as well as to all parties." Id. at 115 (quoting Wadeer v. N.J. Mfrs. Ins.

Co., 220 N.J. 591, 605 (2015)).

Significantly here, Rule 4:30A specifies that the entire controversy

doctrine generally applies to the non-joinder of claims, not the non-joinder of

parties. Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:30A at

1370 (2020) ("There is no mandatory party joinder requirement under the entire

controversy doctrine. Except in special situations involving both inexcusable

conduct and substantial prejudice to the non-party resulting from omission from

the first suit, successive actions against a person not a party to the first action

are not precluded.").

Judge Grasso Jones rightly declined to use the entire controversy doctrine

as a bar to Selective's counterclaim in the second lawsuit and its arguments

against coverage. As we have already noted, Selective was never a party to the

first lawsuit. Its role was limited to assigning a lawyer to serve as Schaefer's

defense counsel on a single count of the homeowners' multiple claims. The

consumer fraud claims, which carried with them treble damages and fee-shifting

exposure, were outside the scope of the assigned attorney's representation.

The coverage "controversy" was not litigated in the first lawsuit, nor could

it have been without Selective being a party. It would be manifestly unfair to

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apply the doctrine in such a manner to deprive Selective of its day in court.

Dimitrakopoulos, 237 N.J. at 114 (emphasizing the importance of assuring

fairness in this context).

We cannot say it any better than the trial court:

In this action, Selective was not a party to the
underlying litigation between Rizescu and King and
Schaefer. See Oltremare v. ESR Custom Rugs, Inc.,
330 N.J. Super. 310, 314-15 (App. Div. 2000) ([]The
entire controversy doctrine requires the joinder of
"virtually all causes, claims, and defenses relating to a
controversy between the parties engaged in the
litigation."). Under the reservation of rights in the prior
action, Selective provided Schaefer with counsel to
represent and defend Schaefer, and that attorney
represented Schaefer, not Selective, on count three of
the counterclaim alleging negligence. The issue of
coverage liability was not litigated in the prior action.
As a matter of law, the defendant in the prior action,
Schaefer, did not stand in the shoes of Selective.
Selective's knowledge that the prior action was ongoing
does not provide a basis for concluding that Selective's
counterclaim against plaintiffs is barred under the
entire controversy doctrine.

[(Emphasis added)].

Res Judicata

Similar reasoning demonstrates why plaintiffs' invocation of res judicata

is unavailing.

The doctrine of res judicata, or claim preclusion, bars the relitigation of

claims that were, or which could have been, asserted by the same party against

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another party in the original action. See generally Brunetti v. Borough of New

Milford, 68 N.J. 576, 587-88 (1975); Innes v. Carrasoca, 391 N.J. Super. 453,

488-89 (App. Div. 2007).

Res judicata requires the following elements: common parties, common

subject matters, common issues and common evidence, as well as a final

judgment rendered in the first action on the merits. See Velasquez v. Franz, 123

N.J. 498, 505-06 (1991); see also Restatement of Judgments (Second) § 19

(1982). Even if a claim is not specifically raised in the first proceeding, it is

precluded from being litigated in the ensuing action if there previously was a

fair opportunity to have raised it. See McNeil v. Legis. Apportionment Comm'n,

177 N.J. 364, 395 (2003); see also Zirger v. Gen. Accident Ins. Co., 144 N.J.

327, 338 (1996).

The circumstances here are missing several of these essential ingredients.

Most glaringly, as we have already stressed, Selective was not a party to the first

lawsuit. Hence, there is not a common identity of parties when compared with

the second action brought by the homeowners against Selective. In addition, the

issue of the extent of Selective's coverage, which the insurer confined to the

negligence count, was never actually litigated in the first case. Nor was there

an adjudication of any issues concerning Selective in the first case. Indeed, the

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settlement wasn't even allocated to the negligence count, but left generic and

vague.

For these many reasons, the trial judge was plainly correct in rejecting

plaintiffs' reliance on res judicata. Selective's declaratory claims were not

precluded whatsoever by the disposition of the first lawsuit.

Conclusion

We have considered all other points raised by appellants, and they lack

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

Affirmed.

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