ANTHONY FOTI VS. JG ELIZABETH II, LLC D/B/A THE MILLS AT JERSEY GARDEN MALL (L-3213-17, UNION 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NOT FOR PUBLICATION WITHOUT THE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-1638-19

ANTHONY FOTI and
CRISTINA FOTI, his wife,

Plaintiffs,

v.

JG ELIZABETH II, LLC 1
D/B/A THE MILLS AT JERSEY
GARDEN MALL I/S/H AS
SIMON PROPERTY GROUP, INC.,
and N.J. METROMALL URBAN
RENEWAL, INC. I/S/H AS
ELIZABETH METROMALL, LLC,

Defendants-Respondents,

and

WE ARE ONE UNITED, improperly
pled as WE ARE ONE UNITED
and NJ STATE AFL-CIO
COMMUNITY SERVICES
AGENCY, INC., UNION
COUNTY COLLEGE and
COUNTY OF UNION,

1
We added JG Elizabeth II, LLC to the caption as it was omitted from the
caption of plaintiffs' complaint filed in the Law Division.
 Defendants,

and

CITY OF ELIZABETH,

Defendant-Appellant,
_____________________________

Argued May 3, 2021 – Decided July 2, 2021

Before Judges Messano, Hoffman and Smith.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-3213-17.

Robert F. Varady argued the cause for appellant
(LaCorte, Bundy, Varady & Kinsella, attorneys; Robert
F. Varady, of counsel and on the briefs; Christina M.
DiPalo, on the briefs).

Andrew L. Stern argued the cause for respondent
(Weiner Law Group, attorneys; Donald M. Garson and
Ann Marie F. Kane, on the brief).

PER CURIAM

This appeal was calendared back-to-back with A-1971-19, also decided

today. There, we affirmed the trial court's orders granting summary judgment

to defendants City of Elizabeth (Elizabeth), and JG Elizabeth II, LLC, d/b/a The

Mills at Jersey Garden Mall i/s/h as Simon Property Group, Inc., and N.J.

Metromall Urban Renewal, Inc., i/s/h as Elizabeth Metromall, LLC

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(collectively, JG), and dismissing the negligence complaint brought by Anthony

Foti (plaintiff) and his wife, Christina. After the court entered summary

judgement, JG moved for an order compelling Elizabeth to reimburse JG for

counsel fees, costs, and expenses incurred in defense of plaintiff 's negligence

claims. The trial court conducted oral argument and subsequently entered the

September 27, 2019 order entitling JG to reimbursement. JG subsequently

submitted a certification of fees, costs, and expenses incurred. Elizabeth did not

challenge the amount but, again, challenged JG's entitlement to any award. The

judge's December 12, 2019 order required Elizabeth to pay $62,041.65 in

counsel fees and costs. Elizabeth now appeals both orders.

Elizabeth argues that an oral lease existed between JG and the County of

Union (the County) that superseded the written lease between Elizabeth and the

Glimcher Group (Glimcher), the developer of the mall and JG's predecessor in

interest. In the alternative, Elizabeth argues the provisions of the written lease

did not impose a duty to defend JG against plaintiff's lawsuit. We disagree and

affirm.

I.

We refer to our opinion in A-1971-19 regarding the substance of plaintiff's

complaint, repeat those facts only as necessary, and focus here on the salient

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evidence regarding the relationship of the three parties — Elizabeth, JG, and the

County — with respect to the leasehold interest in the premises that was the site

of plaintiff's accident — Space 1158 at the mall. Elizabeth first executed a lease

for the space in 2000 (the Lease) and, pursuant to its terms, Glimcher charged

Elizabeth no rent. Section 11.01 of the Lease was entitled "Tenant's Insurance."

Subsection (a) provided various insurance coverage Elizabeth was required to

procure; Section 11.01(d) included an alternative for Elizabeth to satisfy its

obligations "by means of self-insurance." The parties crossed out the underlying

text of the entire section and wrote in its place, "Tenant and Landlord hereby

acknowledge and agree that all insurance requirements of Landlord under this

Lease shall be satisfied by Tenant by means of Tenant's self-insurance." The

lease was modified and extended two times for successive five-year terms with

the final extension expiring on October 31, 2016. None of the modifications

affected Section 11.01 or the handwritten terms that replaced it.

Plaintiff was employed by the County on the date of the accident, August

28, 2015, when he was sent to do electrical work above the ceiling of Space

1158. JB was unaware of his presence.

Within a few months of the expiration of the Lease in October 2016,

Elizabeth's Director of Economic Development contacted the County and

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advised that the city was still being billed for electrical services for Space 1158;

he believed the County should be responsible for the service since Elizabeth was

no longer using the space. Although negotiations began when the Lease expired,

the County and JB did not execute a lease for Space 1158 until August 8, 2017,

nearly two years after plaintiff's accident, with a retroactive effective date of

November 1, 2016, nearly a year after plaintiff's accident.

Although the appellate record contains no documentation, it is undisputed

that when plaintiffs' filed suit naming Elizabeth and JB as defendants, JB

tendered its defense to Elizabeth. Elizabeth declined without any reservation of

rights, denying it was obligated to provide a defense or indemnification.

II.

Elizabeth argues an oral lease existed between JB and the County prior to

plaintiff's accident. JB argues that Elizabeth has not produced any documents

showing a transfer relieving Elizabeth of its lease obligations. We agree with JB.

The only support Elizabeth cites is a February 2015 letter from the County's

Deputy Manager to the Mall's general manager, Denise Palazzo, expressing an

interest in "[w]orking with the City of Elizabeth" and others to remodel the space

and extending "our lease" for an additional five years. When shown the letter at

her deposition, Palazzo did not recall ever responding to it, nor did she recall

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acknowledging at the time that the letter was from a county employee, as

opposed to Elizabeth's employee.

The cases Elizabeth cites in support of the proposition there was an oral lease

that supplanted the existing written lease are inapposite. In Deutsch v. Budget Rent-

A-Car, we concluded that despite the landlord's purported termination of a written

month-to-month lease, the tenant's expenditure of significant funds to improve the

leasehold with the landlord's knowledge established the existence of a six-year oral

lease. 213 N.J. Super. 385, 387–90 (App. Div. 1986). Here, JB never acknowledged

the County as lessee of the space at the time of plaintiff's accident, was unaware it

was making improvements, and the existing written lease with Elizabeth was still in

effect.

Also, in Cauco v. Galante, the Court only concluded that the plaintiff had

established a prima facie case that an oral promise made by the defendant to place a

mortgage on his property as security for a loan the plaintiff made was enforceable.

6 N.J. 128, 130–36 (1951). Despite its oral nature, the agreement did not violate

the Statute of Frauds because the plaintiff had performed her end of the agreement

and demonstrated a prima facie case of fraud. Id. at 137–38. We need not comment

how different these facts are from those Elizabeth has mustered here.

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 JG rightly notes that what Elizabeth really asserts is a novation that

extinguished Elizabeth's prior obligations under the Lease. "A novation may be

broadly defined as the substitution of a new contract or obligation for an old one

which is thereby extinguished." Fusco v. City of Union City, 261 N.J. Super.

332, 336 (App. Div. 1993) (citing 15 Williston On Contracts, § 1865 at 582–85

(3d ed. 1972)). "Unlike a modification which leaves the original contract in

place, a novation substitutes a new contract and extinguishes the old one." Wells

Reit II-80 Park Plaza, LLC v. Dir., Div. of Taxation, 414 N.J. Super. 453, 466

(App. Div. 2010) (citing Fusco, 261 N.J. Super. at 336).

"Because of the far[-]reaching effect of a novation, it is necessary that

there be a mutual agreement among the parties to the old and new obligations

whereby the new agreement is substituted for the prior one." Fusco, 261 N.J.

Super. at 337 (citing Adams v. Jersey Cent. Power & Light Co., 21 N.J. 8, 15

(1956)). "To constitute a novation, a new cont[r]act must exhibit a clear and

definite intention on the part of all parties that its purpose is to supersede and

eliminate a prior cont[r]act. A novation is never presumed." Rodriguez v.

Raymours Furniture Co., 436 N.J. Super. 305, 329 (App. Div. 2014), rev'd on

other grds., 225 N.J. 343 (2016) (citing Sixteenth Ward Bldg. & Loan Ass'n of

Newark v. Reliable Loan, Mortg. & Sec. Co., 125 N.J. Eq. 340, 342–43 (1939)).

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"The burden of proving a novation lies with the party alleging it." Id. at 329

(citing Sixteenth Ward Bldg. & Loan Ass'n, 125 N.J. Eq. at 345). Simply put,

Elizabeth failed to prove a novation that relieved it of its obligations under the

Lease to provide insurance to JB through its self-insurance program.

III.

Elizabeth alternatively argues the Lease did not impose a duty to defend.

As noted, in Section 11.01, entitled Tenant's Insurance, the parties crossed out

the underlying text and wrote, "Tenant and Landlord hereby acknowledge and

agree that all insurance requirements of Landlord under this Lease shall be

satisfied by Tenant by means of Tenant's self-insurance."

"It is well-settled that '[c]ourts enforce contracts "based on the intent of

the parties, the express terms of the contract, surrounding circumstances and the

underlying purpose of the contract."'" Serico v. Rothberg, 234 N.J. 168, 178

(2018) (alteration in original) (quoting In re Cnty. of Atlantic, 230 N.J. 237, 254

(2017)). We apply basic principles of contract interpretation to a lease. Town

of Kearny v. Disc. City of Old Bridge, Inc., 205 N.J. 386, 411 (2011); N.J. Indus.

Props., Inc. v. Y.C. & V.L., Inc., 100 N.J. 432, 456 (1985).

A reviewing court must consider contractual language
in the context of the circumstances at the time of
drafting and . . . apply a rational meaning in keeping
with the expressed general purpose. [I]f the contract

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 into which the parties have entered is clear, then it must
be enforced as written. Where an agreement is
ambiguous, courts will consider the parties' practical
construction of the contract as evidence of their
intention and as controlling weight in determining a
contract's interpretation.

[Serico, 234 N.J. at 178 (quoting In re Cnty. of Atlantic,
230 N.J. at 254–55 (alteration[] in original) (citations
and quotation marks omitted)).]

"Whether a contract term is clear or ambiguous amounts to a question of

law." Sullivan v. Max Spann Real Est. & Auction Co., 465 N.J. Super. 243, 265

(App. Div. 2020) (citing Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App.

Div. 1997)). "A contract is ambiguous if it is reasonably susceptible to two

interpretations." Ibid. (citing Potomac Ins. Co. of Ill. ex rel. OneBeacon Ins.

Co. v. Pa. Mfrs. Ass'n Ins. Co., 425 N.J. Super. 305, 324 (App. Div. 2012)).

There is nothing ambiguous about the meaning of self-insurance as used

in the Lease. Self-insurance is "[a] plan under which a business maintains its

own special fund to cover any loss. Unlike other forms of insurance, there is no

contract with an insurance company." Black's Law Dictionary 958 (11th ed.

2019). Rather than retaining a specific insurance policy, the parties agreed that

Elizabeth had its own special fund to provide insurance coverage.

Elizabeth argues that the Lease did not require it provide a defense to JB

because the Lease specifically did not require Elizabeth to indemnify JB for its

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own negligence. Since plaintiff's complaint alleged both Elizabeth and JB were

negligent, Elizabeth had no obligation to defend JB.

However, "the duty to defend is independent of or broader than the duty

to pay." Scarfi v. Aetna Cas. & Sur. Co., 233 N.J. Super. 509, 515 (App. Div.

1989) (citing Danek v. Hommer, 28 N.J. Super. 68, 79 (App. Div. 1953), aff'd

o.b. 15 N.J. 573 (1954)). "In other words, 'potentially coverable' claims require

a defense." Abouzaid v. Mansard Gardens Assocs., LLC, 207 N.J. 67, 80 (2011)

(citing Stafford v. T.H.E. Ins. Co., 309 N.J. Super. 97, 103 (App. Div. 1998)).

Yet, "[n]either the duty to defend nor the duty to indemnify 'exists except

with respect to occurrences for which the policy provides coverage.'" Wear v.

Selective Ins. Co., 455 N.J. Super. 440, 455 (App. Div. 2018) (quoting Hartford

Accident & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 22 (1984)).

Even though the Lease did not require Elizabeth to indemnify JB for its own

negligence, it was obligated to provide a defense if, despite the crossed-out

Section 11.01, the parties intended JB to have, as handwritten in the Lease, the

benefit of "all insurance requirements . . . under this Lease."

One of the requirements of Section 11.01(a) was that Elizabeth procure a

"comprehensive general liability policy" that provided broad coverage for any

claim "for injury to persons . . . occurring in or about" Space 1158. And, JB, as

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landlord, was to be an additional insured. Section 11.01(d), which specifically

dealt with self-insurance in lieu of a policy of insurance, obligated Elizabeth to

provide the same coverage. The issue, therefore, is what to make of the fact that

Section 11.01 was crossed out, yet the parties wrote that Elizabeth was required

to provide self-insurance that included "all insurance requirements . . . under

this Lease."

We do not think the Lease was ambiguous because it is not "susceptible

to at least two reasonable alternative interpretations." Nester, 301 N.J. Super at

210 (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F.Supp. 275

(D.N.J. 1992)). Indeed, Elizabeth has never offered an alternative interpretation

to JB's claim that it was an additional insured through Elizabeth's self-insurance

program.

"In general, the polestar of construction is the intention of the parties as

disclosed by the language used, taken in its entirety, and evidence of the

attendant circumstances may be considered, not to change the agreement made

but to secure light by which to measure its actual significance." Renee Cleaners,

Inc. v. Good Deal Super Mkts of N.J., Inc., 89 N.J. Super. 186, 190 (App. Div.

1965). "Terms will be implied in a contract where the parties must have

intended them because they are necessary to give business efficacy to the

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contract as written." N.J. Bank v. Palladino, 77 N.J. 33, 46 (1978) (citing Renee

Cleaners, 89 N.J. Super. at 190); see also Conway v. 287 Corp. Ctr. Assocs.,

187 N.J. 259, 270 (2006) ("[T]he words of the contract alone will not a lways

control").

In this case, JB's predecessor leased Space 1158 for no consideration to

support Elizabeth's efforts to benefit its citizens. It did not require Elizabeth to

purchase a policy of insurance providing coverage to the landlord for personal

injury claims brought by those injured in the space, relying instead on

Elizabeth's self-insurance program to provide coverage to the landlord as an

additional insured. There is simply no other reasonable interpretation of these

provisions of the Lease.

Elizabeth seems to take issue with JB's failure to file a separate

declaratory judgment action to compel assumption of its defense. While that

may be a preferable course, the failure to do so does not bar JB's claim.

Elizabeth denied a request for defense without reservation, presumably

believing that since it was not required to indemnify JB for its negligence, it did

not need to provide a defense. However, "[b]y permitting the dispute of

uncovered claims, courts protect both parties by ensuring that the insurer does

not incur responsibility for uncovered claims, and that the insured is entitled to

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both defense and indemnity if the dispute is resolved in its favor." Passaic

Valley Sewerage Comm'rs v. St. Paul Fire & Marine Ins. Co., 206 N.J. 596, 617

(2011) (citing N.J. Mfrs. Ins. Co. v. Vizcaino, 392 N.J. Super. 366, 370 (App.

Div. 2007)). An "insurer's obligation to defend becomes an obligation to

reimburse for defense costs to the extent that the defense is later determined to

have been attributable to the covered claims and, if coverage is not determinable

in the underlying action, it is later determined that there was in fact coverage."

Wear, 455 N.J. at 455 (quoting Muralo Co. v. Emps. Ins. of Wausau, 334 N.J.

Super. 282, 290 (App. Div. 2000)).

Here, the only reasonable interpretation of the Lease was that the parties

intended Elizabeth would, through its self-insurance program, provide a defense

to the landlord, JB, against plaintiff's claim for injuries that occurred in Space

1158 unless they were caused by the landlord's own negligence.

Affirmed.

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