MATTHEW DOMENICK VS. COUNTY OF MIDDLESEX (L-5044-18, MIDDLESEX 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                                NOT FOR PUBLICATION WITHOUT THE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-2099-19

MATTHEW DOMENICK,

          Plaintiff,

v.

COUNTY OF MIDDLESEX,

          Defendant/Third-Party
          Plaintiff-Appellant,

v.

BRIAN MELNICK and BAM
SPORTS a/k/a BAM SOCIAL
SPORTS, PHILADELPHIA
INDEMNITY INSURANCE

          Third-Party Defendants-
          Respondents,

and

BELL ANDERSON AGENCY,
INC.,

     Third-Party Defendants.
___________________________
            Argued March 10, 2021 – Decided April 26, 2021

            Before Judges Rose and Firko.

            On appeal from the Superior Court of New Jersey, Law
            Division, Middlesex County, Docket No. L-5044-18.

            Clark W. Convery argued the cause for appellant
            (Convery, Convery & Shihar, PC, attorneys; Clark W.
            Convery, on the briefs).

            Paul J. Soderman argued the cause for respondents
            Brian Melnick and Bam Sports (Sweeney & Sheehan,
            P.C., attorneys; Paul J. Soderman, on the brief).

PER CURIAM

      Defendant/third-party plaintiff County of Middlesex appeals from a

January 15, 2020 Law Division order, denying reconsideration of two November

18, 2019 orders that dismissed its complaint against third-party defendants Brian

Melnick and his company, Bam Sports a/k/a Bam Social Sports (collectively

BAM), on summary judgment.          The motion judge concluded the parties'

indemnification agreement failed to specify that BAM would indemnify the

County for the County's own negligence. We agree and affirm.

      On June 4, 2017, plaintiff Matthew Domenick 1 tripped and fell while

rounding third base during a softball game played at Johnson Park in Piscataway.


1
  Plaintiff's complaint was dismissed on the County's summary judgment
motion. Accordingly, he is not a party to this appeal.
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As sponsor of the softball league, Melnick purchased a permit from the County.

Pertinent to this appeal, Melnick signed the County's rules and regulations,

which contained the following provision:

            HOLD HARMLESS AGREEMENT

            In consideration of the granting of permission by the
            Middlesex County Office of Parks and Recreation to
            the applicant for the use of the facilities set forth above,
            the applicant hereby shall defend, indemnify and save
            harmless the County of Middlesex against all claims
            arising from the conduct of activities for which this
            application is made.

            [(Emphasis added).]

      The following year, plaintiff sued only the County, alleging it was

negligent in the preparation and maintenance of the softball field, causing him

to sustain injuries. In turn, the County filed a third-party complaint against

BAM, Bell Anderson Agency, Inc., and Philadelphia Indemnity Insurance,2

demanding defense and indemnification of plaintiff's claims.

      Just prior to the close of discovery, the County moved for summary

judgment against BAM based on the allegations asserted in its third -party


2
  Bell Anderson Agency, Inc. (Bell) and Philadelphia Indemnity Insurance (PII)
are not parties to this appeal. During oral argument before this court, the parties
indicated that Bell was dismissed from the litigation prior to the commencement
of discovery, and the County thereafter abandoned its claims against PII.


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complaint. BAM cross-moved for summary judgment, primarily asserting the

indemnification clause failed to reference "the County's own fault or

negligence."

      Following argument, the judge denied the County's motion and granted

BAM's motion. In a statement of reasons accompanying the November 18, 2019

order3 that granted BAM's motion, the judge explained:

                   This [c]ourt finds that the subject provision does
            not provide for suits which allege the County's own
            negligence. It is clear that under N[ew] J[ersey] law, in
            order to bring a negligent indemnitee within an
            indemnification agreement, the agreement must
            specifically reference the negligence or fault of the
            indemnitee. Azurak v. Corp[.] Prop. Inv[s.], 175[] N.J.
            110, 112-[]13 (2003). The provision clearly lacks any
            explicit reference to indemnification in the case of a
            suit for the County's own negligence. Therefore, . . .
            [BAM]'s motion for summary judgment seeking
            dismissal of [the County]'s claim is granted.

      The judge denied the County's ensuing motion for reconsideration. The

judge memorialized his decision in a statement of reasons accompanying the

January 15, 2020 order. Finding the County failed to satisfy the standard for

reconsideration, the judge reiterated his reliance on Azurak, elaborating:



3
   The companion November 18, 2019 order, denying the County's summary
judgment motion cross-referenced the reasons cited in the order, granting
BAM's motion.
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                   Broad-form indemnification clauses, as is the
            case here, are subject to the rule requiring explicit and
            plain language for indemnification for an indemnitee as
            a result of the indemnitee's own fault or negligence.
            See Azurak, . . . 175 N.J. . . . [at] 112-13 . . . . As the
            indemnification clause does not explicitly state in plain
            language that BAM . . . would indemnify [the] County
            for claims arising out of [the] County's own alleged
            negligence or fault, there is no basis to sustain [the]
            County's indemnification claim.

This appeal followed.

      On appeal, the County argues the motion judge erroneously applied the

governing law and "overlooked the parties' true intent" behind the

indemnification clause. The County further contends BAM acted in bad faith.

Having conducted a de novo review of the record, Templo Fuente De Vida Corp.

v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016), in view of

the governing law, Azurak, 175 N.J. at 112-13, we conclude the County's

contentions lack sufficient merit to warrant extended discussion in a written

opinion, R. 2:11-3(e)(1)(E), beyond the comments that follow.

      The interpretation or construction of a contract is a legal question,

reviewed de novo by this court. Driscoll Constr. Co. v. State, Dep't of Transp.,

371 N.J. Super. 304, 313 (App. Div. 2004); see also Celanese Ltd. v. Essex Cnty.

Improvement Auth., 404 N.J. Super. 514, 528 (App. Div. 2009) (holding that

"unless the meaning is both unclear and dependent on conflicting testimony[,]"

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the court interprets the terms of a contract as a matter of law). In our review,

the "trial court's interpretation of the law and legal consequences that flow from"

it are "not entitled to any special deference." Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      "The objective in construing a contractual indemnity provision is the same

as in construing any other part of a contract – it is to determine the intent of the

parties."   Kieffer v. Best Buy, 205 N.J. 213, 223 (2011).            Our task is

interpretative. Ibid. We do not rewrite the parties' contract or provide a better

or different agreement than the one they wrote themselves. Ibid.

      As a general rule, an indemnity "contract will not be construed to

indemnify the indemnitee against losses resulting from its own negligence

unless such an intention is expressed in unequivocal terms" in the agreement.

Ramos v. Browning Ferris Indus., Inc., 103 N.J. 177, 191 (1986). The Supreme

Court has squarely addressed this issue in Mantilla v. NC Mall Associates, 167

N.J. 262 (2001) and Azurak, 175 N.J. 110.

      In Mantilla, our Supreme Court examined whether the parties' contractual

indemnification clause obligated the contractor to indemnify the property owner

for legal costs incurred by the owner in defending itself against a negligence

claim. 167 N.J. at 267. The Court concluded that as a matter of public policy,


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"absent explicit contractual language to the contrary, an indemnitee who has

defended against allegations of its own independent fault may not recover the

costs of its defense from an indemnitor." Id. at 275.

      The Court's opinion in Azurak, 175 N.J. at 111-12, reinforced the

principles set forth in Mantilla, and eliminated all doubt, holding a "broad form"

indemnification clause, which attempted "to include an indemnitee's negligence

within an indemnification agreement[,] without explicitly referring to th e

indemnitee's 'negligence' or 'fault,' . . . is no longer good law." Citing this court's

opinion, the Court affirmed per curiam, adopting the rationale expressed by

Judge Carchman, which stated:

                   Significantly, the Court's analysis in Mantilla, by
             omission, eschewed the consideration of a "broad" or
             "limited" form of indemnification – a critical element
             in the analytical framework that had dominated
             consideration of these issues in [prior authority]. We
             read Mantilla as a reiteration of Ramos and its "bright
             line" rule requiring "explicit language" that
             indemnification and defense shall include the
             indemnitee's own negligence. We note that nowhere in
             Mantilla is there any mention of the significance of
             broad form or limited form indemnification provisions
             ....

             [Id. at 112 (quoting Azurak v. Corp. Prop. Invs., 347
             N.J. Super. 516, 523 (App. Div. 2002).]




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     More recently, we considered the indemnity provision in a licensing

agreement between G & G Hotels, Inc. (G & G) and Howard Johnson

International, Inc. (HJI). Sayles v. G & G Hotels, Inc., 429 N.J. Super. 266

(App. Div. 2013). Pursuant to the terms of the agreement, G & G was required

to

           indemnify, defend and hold [HJI] harmless, to the
           fullest extent permitted by law, from and against all
           [l]osses and [e]xpenses, incurred by [HJI] in connection
           with any . . . claim . . . relating to or arising out of any
           transaction, occurrence or service at or in conjunction
           with the operation of the [f]acility, any breach or
           violation of any contract or any law, regulation or
           ruling by, or any act, error or omission (active or
           passive) of, [G & G], any party associated or affiliated
           with [G & G], or any of their respective owners,
           officers, directors, employees, agents or contractors,
           including when the active or passive negligence of
           [HJI] is alleged or proven.

           [Id. at 270 (emphasis added).]

     The indemnification provision was triggered when a consolidated

negligence action was filed against G & G and HJI. Id. at 268. HJI moved for

summary judgment against G & G, seeking defense and indemnification

pursuant to their agreement. Ibid. As we noted, the trial court granted the

motion, "finding enforcement of the provision here was consistent with the

principles outlined in Azurak . . . and earlier cases." Ibid. On appeal, we


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rejected G & G's argument that the "the indemnification provision d[id] not, as

a matter of law, unequivocally express the parties' intent that G & G indemnify

HJI for claims based on HJI's negligence." Id. at 269. In doing so, we found

"the indemnification provision sufficiently expresse[d] the parties' intent that

HJI would be entitled to indemnification from G & G for claims arising from

HJI's negligence." Id. at 269-70.

      In the present matter, the County cherry-picks our observation in Sayles

that "a court must look for the parties' true intent" when analyzing an indemnity

provision, id. at 274, to support its argument that Azurak "is not the current law

of New Jersey." To the contrary, our decision in Sayles rested precisely on the

parties' inclusion of "the active or passive negligence of [HJI]" in their

indemnity provision.

      Here, however, the "broad-form" clause, requiring BAM to "defend,

indemnify and save harmless the County of Middlesex against all claims arising

from the conduct of activities for which this application is made," falls far short

of the explicit language required under Azurak and its progeny. See e.g., Estate

of D'Avila v. Hugo Neu Schnitzer E., 442 N.J. Super. 80, 114 (App. Div. 2015)

(enforcing an indemnification provision containing "plain and unequivocal"




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language requiring "[indemnitor] to indemnify [indemnitee] for damages caused

by [indemnitee's] own negligence").

      Simply stated, plaintiff alleged the County negligently maintained and

repaired the softball field, causing his injuries. Because the indemnification

provision lacked any reference whatsoever to the County's own negligence,

BAM was not required to defend or indemnify the County. BAM did not act in

bad faith here.

      Affirmed.




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