GIACCONE et al v. CANOPIUS US INSURANCE COMPANY
Filing
9
OPINION. Signed by Chief Judge Jerome B. Simandle on 6/29/2015. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ANTONIO GIACCONE and RITA
GIACCONE,
HONORABLE JEROME B. SIMANDLE
Plaintiffs,
Civil Action
No. 14-6939 (JBS/KMW)
v.
CANOPIUS US INSURANCE COMPANY,
OPINION
Defendant.
APPEARANCES:
Johnathan Wheeler, Esq.
LAW OFFICES OF JONATHAN WHEELER, P.C.
1617 JFK Boulevard, Suite 1270
Philadelphia, P.A. 19103
Attorney for Plaintiffs
Jared T. Greisman, Esq.
WHITE, FLEISCHNER & FINO, LLP
2137 Route 35
Holmdel, N.J. 07733
Attorney for Defendant
SIMANDLE, Chief Judge:
INTRODUCTION
This insurance coverage litigation concerns Defendant
Canopius US Insurance Company’s (hereinafter, “Defendant”)
refusal to pay insurance benefits to Plaintiffs Antonio Giaccone
and Rita Giaccone (hereinafter, “Plaintiffs”) for their claim
that a January 31, 2013 storm severely damaged their commercial
and rental property in Pleasantville, New Jersey.
generally Compl. at ¶ 3.)
(See
Defendant now moves at the outset of this action for
summary judgment or for the dismissal of Plaintiffs’ Complaint
on the ground that they contractually released Defendant from
“any and all further obligation” under the insurance policy, No.
OUS16008338 (hereinafter, the “Policy”).
Br. at 1.)
(See generally Def.’s
Defendant specifically asserts that the parties
entered into a Release and Settlement Agreement (hereinafter,
the “Settlement Agreement” or “Agreement”) on November 27, 2013,
concerning Plaintiffs’ claim for property damage that occurred
during Hurricane Sandy on October 29, 2012.
Greisman Aff.)
(See Ex. C to
The provisions of the executed Agreement,
however, release Defendant from “any and all claims” arising out
of damages “that occurred on or about October 29, 2012 (the
‘Subject Loss’),” and from “any and all” other claims that
Plaintiffs could have asserted against the Policy, including
unknown claims and those not expressly mentioned in the
Settlement Agreement.
(Id. at 1-3.)
Indeed, the Agreement
contains a specific covenant that Plaintiffs had, at the time of
the Agreement’s execution, “no remaining claims of any kind”
under the Policy.
(Id. at 3.)
As a result, Defendant asserts that Plaintiffs’
supplemental claim for property damage that occurred on January
31, 2013, approximately ten months prior to execution of the
Settlement Agreement, constitutes an impermissible attempt to
2
recover “in contravention of the clear and unambiguous terms” of
the Agreement.
(Reisman Aff. at ¶ 13.)
Defendant therefore
requests that the Court enforce the Agreement “and dismiss
Plaintiffs’ Complaint, in its entirety, with prejudice,” or, in
the alternative, enter summary judgment in its favor. (Def.’s
Br. at 1, 7-10.)
In addition, and based upon the terms of the
Settlement Agreement, Defendant seeks to recover the attorney’s
fees and costs incurred as a result of this litigation.
(See
id. at 9-10.)
Plaintiffs do not dispute the existence, or their
execution, of the Settlement Agreement.
Rather, Plaintiffs
challenge the scope and interpretation of the Agreement on its
face, and argue that certain language makes clear that the
Agreement concerned only “losses from Super Storm Sandy on
October 29, 2012, and not later losses to the property.” (Pls.’
Opp’n at 2, 6-8.)
Plaintiffs therefore submit that the
Settlement Agreement has no effect on their ability to pursue a
claim for property damage that occurred on January 31, 2013.
Moreover, even if the Agreement’s terms sweep broadly to release
any and all claims, Plaintiffs argue that factual disputes
concerning the Agreements’ validity preclude the entry of
summary judgment.
(See Pls.’ Opp’n at 8-9.)
The principal issues before the Court concern the scope of
the claims released in the Settlement Agreement, namely, whether
3
the Agreement narrowly applies only to causes of damage stemming
from Hurricane Sandy on October 29, 2012, or broadly precludes
claims for any and all potential losses covered by the Policy;
and whether issues of fact preclude the Agreement’s enforcement.
For the reasons set forth below, the Court will treat
Defendant’s motion as one for summary judgment, and will grant
the motion.
BACKGROUND
A.
Factual and Procedural Background 1
Plaintiffs own a commercial and rental property in
Pleasantville, New Jersey.
(See generally Compl.)
On May 31,
2012, Defendant issued Plaintiffs a “Commercial Lines” insurance
policy for the period of May 2, 2012 to May 3, 2013.
(Ex. A to
Compl.)
On October 29, 2012, however, Hurricane Sandy “ripped the
roof completely off of the building,” allowing water to flood
the property.
2.)
(Giaccone Dep. at 8:1-9; see also Pls.’ SMF at ¶
As a result, Plaintiffs, through their licensed Public
Adjuster, Michael DeRita, submitted an insurance claim to
Defendant for the losses associated with Hurricane Sandy.
(DeRita Cert. at ¶¶ 1-2.)
In investigating the claim,
Defendant’s claims agent represented that 80% of the damages to
1
The Court derives these undisputed facts from the parties’
various affidavits and exhibits.
4
Plaintiffs’ property resulted from a subsequent storm, rather
than Hurricane Sandy.
Cert.)
(See DeRita Cert. at ¶ 2; Ex. A to DeRita
Defendant’s agent, in making the final offer, indicated
that the offer was more than it would have been for just Sandyrelated damage alone.
(See Ex. A to DeRita Cert.)
Nevertheless, Defendant offered to settle Plaintiffs’ claim
in its entirety and, on October 31, 2013, forwarded a four page
proposed settlement and release through Raphael & Associates,
Defendant’s claims administrators, in order to resolve the
claim.
(Ex. B to DeRita Aff.)
The Agreement, which Plaintiffs
executed on November 27, 2013, provided that Plaintiff would
receive a total payment of $458,446.11 in full satisfaction of
their outstanding insurance claim. (See generally Ex. C to
Greisman Aff.)
In exchange for this payment, Plaintiffs agreed
to release any and all claims related to the property damage and
loss that occurred on October 29, 2012, and further agreed to
release all other claims that Plaintiffs “could have [] made”
under the Policy and/or against Defendant.
(Id. at 2-3.)
The Settlement Agreement provided, in particular, three
specific provisions relevant to the pending motion.
First,
Plaintiffs agreed
to remise, release, acquit, and forever discharge
[Defendant] . . . of and from any and all claims,
actions, causes of action, demands, rights, damages,
costs, losses of services, expenses, interest,
compensation, and obligations towards [Defendant],
5
whatsoever (whether contractual, quasi-contractual,
extra-contractual or otherwise), which [Plaintiffs]
[then had] or which [t]hereafter accrue[d] on account
of, or in any way growing out of damages (whether
direct, consequential or punitive), interest, costs
and fees resulting or to result from or in any way
relating to the claim and/or loss and/or damage
sustained to the property located at 118-124 South
Main Street Pleasantville New Jersey 08232 as a result
of wind and water damages that occurred on or about
October 29, 2012 (the “Subject Loss”). . . .
(Id. (emphasis added).)
Second, Plaintiffs agreed to
[r]elease[] and give[] up any and all claims and
rights which [Plaintiffs] may have [had] against
[Defendant] . . . including those of which [Plaintiffs
were] not aware and those not mentioned in [the
Settlement Agreement], . . . [and] specifically
release[d] the following claims: Any and all claims
that were made or could have been made under or
against [the Policy] issued by [Defendant], bearing
Policy Number OUS016008388. It is specifically agreed
that there are no remaining claims of any kind which
GIACCONE has under Policy Number OUS016008388.
(Id. at 2–3 (emphases added).)
Finally, the Settlement
Agreement provided for an award of “attorney’s fees, interest,
costs and expenses of litigation” to the “prevailing party in
any action to enforce” the Settlement Agreement.
(Id. at 4.)
In executing the Settlement Agreement, Plaintiffs
acknowledged, before a Notary Public, that they read and
reviewed the Agreement in its entirety and fully understood its
provision.
(Id. at 4.)
Nevertheless, on January 16, 2014, ten
months after executing the Settlement Agreement, Plaintiffs
submitted a second claim under the Policy for damages allegedly
sustained to their property during a subsequent storm on January
6
31, 2013.
(Greisman Aff. at ¶ 11; see also Compl. at ¶ 3.)
On
June 10, 2014, however, Defendant denied coverage for this
“supplemental claim” on the ground that the Settlement
Agreement, on its face, released Defendant from any and all
obligations under the 2012–2013 policy. 2 (Ex. E to Greisman Aff.)
Following Defendant’s declination of coverage, Plaintiffs
filed the initial state court Complaint on September 22, 2014,
alleging that Defendant breached its contractual obligations and
duty of good faith and fair dealing by refusing to provide
coverage for the January 31, 2013 loss.
Aff.)
(See Ex. A to Reisman
Defendant removed the action to this Court on November 6,
2014 [see Docket Item 1], and the pending motion followed.
[See
Docket Item 3.]
PRELIMINARY ISSUE
The Court must, at the outset, determine how to treat
Defendant’s motion.
Plaintiffs argue that the Settlement Agreement cannot form
the basis of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) because Plaintiffs’ Complaint does not
2
Moreover, because Plaintiffs filed their supplemental claim
“one year after the reported date of the supplemental loss,”
Defendant secondarily asserted that their “failure to provide
timely notice of the claim” precluded them from obtaining
coverage. (Id. at 2-3.)
7
explicitly or implicitly rely upon the Agreement.
(See, e.g.,
Pls.’ Opp’n at 5-6.)
It is axiomatic that the Court may not, in resolving a
motion to dismiss under Rule 12(b), consider “matters extraneous
to the pleadings.”
In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997).
Rather, the Court may only
consider a “‘document integral to or explicitly relied upon in
the complaint,’” or an “‘undisputedly authentic document’” if
such document forms the predicate for the complaint.
In re
Rockefeller Ctr. Props., Inc., Sec. Litig., 184 F.3d 280, 287
(3d Cir. 1999) (citations omitted).
Here, Defendant’s motion turns, in its entirety, upon the
terms and interpretation of the Settlement Agreement, a document
neither referenced nor inherently critical to Plaintiffs’
Complaint.
When “matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56,” and the Court must
ordinarily provide all parties with adequate notice and an
opportunity to supplement the record.
FED. R. CIV. P. 12(d).
Where, however, the movant frames the motion to dismiss in the
alternative as one for summary judgment, as here, the Court may
convert the motion without notice, because the motion itself
puts the non-moving party on sufficient notice that the Court
might treat the motion as one for summary judgment.
8
See, e.g.,
S. Jersey Gas Co. v. Mueller Co., Ltd., No. 09-4194, 2010 WL
1742542, *4 (D.N.J. Apr. 27, 2010) (citing Hilfirty v. Shipman,
91 F.3d 573, 578–79 (3d Cir. 1996); Carver v. Plyer, 115 F.
App’x 532, 536 (3d Cir. 2004)).
Indeed, Plaintiffs specifically
addressed the summary judgment standard in their opposition to
the pending motion, and appended a statement of material facts,
thereby confirming their knowledge that the Court may treat
Defendant’s motion as one for summary judgment.
(See, e.g.,
Pls.’ Opp’n at 3-4, 6-9; see Pls.’ SMF.)
For these reasons, the Court will treat Defendant’s motion
as one for summary judgment under Federal Rule of Civil
Procedure 56, and turns to the relevant standard. 3
STANDARD OF REVIEW APPLICABLE TO DEFENDANT’S MOTION
Federal Rule of Civil Procedure 56(a) generally provides
that the “court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact” such
that the movant is “entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
3
Plaintiffs argue that Federal Rule of Civil Procedure 12(b)
precludes Defendant from raising the affirmative defense of
release by motion, rather than by a responsive pleading. (See
Pls.’ Opp’n 4-6.) Nevertheless, because the Court will treat
Defendant’s motion as one for summary judgment, the Court need
not reach the issue, because Plaintiffs have not challenged
Defendant’s ability to raise the issue of release under Federal
Rule of Civil Procedure 56.
9
DISCUSSION
The parties take, as stated above, diametrically opposed
positions on the scope and interpretation of the Settlement
Agreement.
(Compare Def.’s Br. at 8 (arguing that the
Settlement Agreement covers all potential claims during the
policy period), with Pls.’ Opp’n 6-8 (arguing that the
Settlement Agreement solely covers damage that occurred on or
about October 29, 2012).)
For the reasons that follow, however, the Court finds the
limited terms of the Settlement Agreement to be remarkably clear
on their face.
Nevertheless, because the pending motion turns
in part on the issue of contract interpretation, the Court will
first introduce the relevant interpretative principles, prior to
addressing the substantive provisions of the Settlement
Agreement and their effect on the claims asserted by Plaintiffs.
A. Relevant Principles of Contract Interpretation
A settlement agreement constitutes a simple legal contract
subject to enforcement through the application of basic
principles of state contract law.
See, e.g., Weisman v. N.J.
Dep’t of Human Servs., 982 F. Supp. 2d 386, 391-92 (D.N.J. 2013)
(citation omitted), aff’d, 593 F. App’x 147 (3d Cir. 2014); see
also In re Cendant Corp. Sec. Lit., 569 F. Supp. 2d 440, 443
(D.N.J. 2008) (citing Impink ex rel. Baldi v. Reynes, 935 A.2d
808, 812 (N.J. Super. Ct. App. Div. 2007) (noting that “[a]
10
settlement between parties to a lawsuit is a contract like any
other contract, which may be freely entered into and which a
court . . . should honor and enforce as it does other
contracts”).
In construing contracts, the Supreme Court of New Jersey
has repeatedly instructed that “clear and unambiguous” contracts
leave “‘no room for interpretation or construction’” and must be
enforced “‘as written.’”
Sheet Metal Workers Int’l Ass’n Local
Union No. 27, AFL–CIO v. E.P. Donnelly, Inc., 737 F.3d 879, 900
(3d Cir. 2013) (citations omitted) (discussing New Jersey
contract law).
In other words, clear contractual provisions
“must be given effect without reference to matters outside the
contract.”
Bohler–Uddeholm, Inc. v. Ellwood Grp., 247 F.3d 79,
93 (3d Cir. 2001) (internal quotations and citations omitted).
Moreover, it is well settled that “‘a party who enters into
a contract in writing, without any fraud or imposition being
practiced upon him, is conclusively presumed to understand and
assert to its terms and legal effect.’” Rudbart v. N. Jersey
Dist. Water Supply Comm’n, 605 A.2d 681, 685 (N.J. 1992)
(citation omitted).
Indeed, “signing a contract creates a
‘conclusive presumption that the signer read, understood, and
assented to its terms.’”
Raiczyk v. Ocean Cnty. Veterinary
Hosp., 377 F.3d 266, 270 (3d Cir. 2004) (quoting Fleming Cos.,
Inc. v. Thriftway Medford Lakes, Inc., 913 F. Supp. 837, 842–43
11
(D.N.J. 1995)).
Failing to read a contract therefore provides
no defense to an agreement’s binding terms, see Baig v. Nuclear
Regulatory Comm’n, No. 10–0842, 2013 WL 1558707, at *3 (D.N.J.
Apr. 10, 2013) (citing Modern Security v. Lockett, 143 A. 511
(N.J. 1928); Riverside Chiropractic Grp. v. Mercury Ins. Co.,
961 A.2d 21 (N.J. Super. Ct. App. Div. 2008)), and a contract
may not be rescinded where a unilateral mistake occurred “as a
result of the mistaken party’s own negligence.”
Weisman, 982 F.
Supp. 2d at 395 (citation omitted).
Nevertheless, a narrow exception arises in the face of
evidence that the contract resulted from fraud, duress, and/or
misrepresentation.
See S.A. Citrique Belge N.V. v. Northeast
Chems., Inc., No. 12-5408, 2013 WL 3223389, at *2 (D.N.J. June
25, 2013) (citing Van Houten Serv., Inc. v. Shell Oil Co., 417
F. Supp. 523, 527 (D.N.J. 1975)).
Indeed, under such
circumstances, even the clearest of contracts may prove voidable
and rescindable.
See Windsor Card Shops, Inc. v. Hallmark
Cards, Inc., 957 F. Supp. 562, 568 n.8 (D.N.J. 1997) (citation
omitted) (noting that a misrepresentation may render a contract
voidable); see also First Am. Title Ins. Co. v. Lawson, 827 A.2d
230, 237 (2003) (citation omitted) (noting that “equitable fraud
provides a basis for a party to rescind a contract”).
In the
absence of some mistake, fraud, duress, or other “imposition,”
12
however, parties will be bound by the clear and unambiguous
terms of their agreements.
Weisman, 982 F. Supp. 2d at 395.
B. The Settlement Agreement Broadly Waives Any and All
Claims under the Policy, including the Claims asserted by
Plaintiffs in this Litigation
Here, Plaintiffs do not point to any ambiguity in the
Agreement, nor do they suggest that the Agreement otherwise
lacks sufficient clarity as to its effect.
Opp’n at 6-8.)
(See generally Pls.’
Rather, based upon a single provision of the
Settlement Agreement, Plaintiffs insist that it “solely”
concerns “damage stemming from” Hurricane Sandy. (Pls.’ Opp’n at
7 (emphasis in original).)
Nevertheless, in looking at the
terms of the Agreement on the whole, the Court finds no support
for the limited scope asserted by Plaintiffs.
The Settlement Agreement defines, at the outset, the damage
caused on October 29, 2012 as the “Subject Loss,” and
specifically provides that Plaintiffs forever release Defendant
from “any and all claims” associated with this Loss.
Reisman Aff.)
(Ex. C to
Nevertheless, the Agreement goes on to provide
that Plaintiffs also agreed to release Defendant from “any and
all claims and rights which [they] may have against
[Defendant],” including those of which Plaintiffs were “not
aware and those not mentioned in” the Settlement Agreement.
(Id. at 2.)
The Settlement Agreement then reinforces the broad
scope of this release by reiterating that Plaintiffs
13
“specifically release[] the following claims: Any and all claims
that were made or could have been made under or against [the]
insurance policy issued by” Defendant.
(Id.)
Indeed,
Plaintiffs “specifically agreed” that, as of the date of
execution, they had “no remaining claims of any kind” under the
Policy.
(Id.)
In arguing that the Settlement Agreement possesses a
limited scope, Plaintiffs assert that the Agreement’s
identification of the October 29, 2012 Hurricane Sandy damage as
the “‘Subject Loss’” necessarily dictates that the Settlement
Agreement covers only Plaintiffs’ claims related to this Loss.
(Pls.’ Opp’n at 7.)
When viewed in its entirety, however, the
Settlement Agreement imposes no such limitation, nor does the
language of the release limit its coverage to only the Subject
Loss.
See Cumberland Cnty. Improvement Auth. v. GSP Recycling
Co., Inc., 818 A.2d 431, 497 (N.J. Super. Ct. App. Div. 2003)
(citations omitted) (noting that a contract “must be read as a
whole,” and that “[l]iteralism must give way to context”).
In
fact, the Settlement Agreement could not be clearer in its broad
expression of the scope of the released claims, and Plaintiffs’
narrow interpretation would impermissibly render multiple
provisions of the Agreement meaningless.
See Porreca v. City of
Millville, 16 A.3d 1057, 1070 (N.J. Super. Ct. App. Div. 2011)
14
(citations omitted) (“A contract ‘should not be interpreted to
render one of its terms meaningless.’”).
Critically, despite the definition of “Subject Loss,” the
Settlement Agreement expressly provides, as stated above, that
the Agreement releases “any and all claims,” including those not
known to Plaintiffs, those “not mentioned” in the Agreement,
and/or any claims that “could have been made under or against”
the Policy.
(Ex. C to Reisman Aff.)
In parsing this language,
it is a bedrock principle of contract interpretation that the
“phrase ‘any and all’ allows for no exception,” particularly
where, as here, the language following the phrase specifically
mentions “any and all claims” of any kind, whether known and/or
unknown, against the Policy and Defendant.
Isetts v. Borough of
Roseland, 835 A.2d 330, 335-36 (N.J. Super. Ct. App. Div. 2003)
(citing Atl. Cas. Ins. Co. v. Interstate Ins. Co., 100 A.2d 192,
198 (N.J. Super. Ct. App. Div.1953) (“[t]he word ‘any’ clearly
may and should be interpreted as meaning ‘all or every’”)).
These all-inclusive provisions therefore provide a clear
and express indication that the Agreement required, by its very
terms, the release of all potential claims against Defendant,
regardless of whether they arose from Hurricane Sandy or any
subsequent storm.
In other words, these provisions make plain
that the Settlement Agreement subsumed and covered all of the
damages to Plaintiffs’ property up to the November 27, 2013
15
Settlement date.
See Recchia v. Kellogg Co., 951 F. Supp. 2d
676, 687-88 (D.N.J. 2013) (finding a release of “‘any and all
other claims’” left “no doubt as to the nature” of the waived
claims)
For these reasons, the Court rejects Plaintiffs’ position
that the Agreement and its release “solely” concerned the damage
stemming from Hurricane Sandy on October 29, 2012.
at 7 (emphasis in original).)
(Pls.’ Opp’n
Therefore, the Court turns to
Plaintiffs’ alternative challenge to the Agreement’s
enforcement.
C. No Genuine Issues of Material Fact Preclude the Entry of
Summary Judgment in Defendant’s Favor
In challenging the Agreement’s effect on the claims in this
litigation, Plaintiffs alternatively argue that issues of fact
concerning whether a meeting of the minds produced the Agreement
preclude summary judgment.
(See Pls.’ Opp’n at 8.)
Defendant,
however, argues that “the alleged circumstances leading up to
the Settlement” may not be “relied upon to alter the [otherwise]
clear and unambiguous terms of the writing.” 4
(Greisman
Supplemental Aff. at ¶ 8.)
4
Though Defendant may be correct that the parol-evidence rule
prohibits the introduction of extrinsic evidence to vary the
terms of an integrated contract, see, e.g., Conway v. 287
Corporate Ctr. Assocs., 901 A.2d 341, 347 (N.J. 2006), the
parol-evidence rule does not preclude the introduction of
extrinsic evidence in an attempt to avoid the contract through a
demonstration of fraud in the inducement, misrepresentation, or
16
A “legally enforceable agreement” must be the product of
mutual assent, and requires “‘a meeting of the minds.’”
Atalese
v. U.S. Legal Servs. Grp., L.P., 99 A.3d 306, 312-13 (N.J. 2013)
(citations omitted).
Mutual assent, in turn, “requires that the
parties have [a full] understanding of the terms to which they
have agreed,” and an effective waiver in any contract requires
that “‘a party have full knowledge of his legal rights and [an]
intent to surrender those rights.’”
Id. at 313; see also
Weisman, 982 F. Supp. 2d at 394 (quoting Hoffman v. Supplements
Togo Mgmt., LLC, 18 A.3d 210, 216 (N.J. Super. Ct. App. Div.
2011) (citing W. Caldwell v. Caldwell, 138 A.2d 402, 410–11
(N.J. 1958))).
Here, based upon the circumstances leading up to their
receipt and execution of the Settlement Agreement, Plaintiffs
assert that they understood the Agreement to concern only
damages arising from Hurricane Sandy on October 29, 2012.
Pls.’ Opp’n at 8.)
(See
Indeed, Mr. Giaccone specifically testified
during his deposition that he believed the Settlement Agreement
only covered “certain damages that occurred during the Sandy
storm,” and not any damage caused by storms following Hurricane
Sandy. 5
(Giaccone Dep. at 14:7-17:15.)
Mr. DeRita, Plaintiffs’
some other imposition. See Walid v. Yolanda for Irene Couture,
Inc., 40 A.3d 85, 93-94 (N.J. Super. Ct. App. Div. 2012).
5 Moreover, because Defendant had purportedly retracted an
initial offer, Mr. Giaccone testified to his “impression” that
17
Public Adjuster, similarly certified that he received the
Settlement Agreement from Defendant on October 31, 2013, and
forwarded the Agreement to Plaintiffs “with the understanding
that [it] released only claims arising from damages sustained as
a result of the storm on October 29, 2012 (referred to as the
“subject loss”) in the Release.”
(emphasis in original).)
(DeRita Aff. at ¶¶ 4-5
Mr. DeRita further attached
correspondence he received from Defendant’s claims
administrator, which consistently identified the Settlement
Agreement as relating to “Superstorm Sandy” on “October 29,
2012.”
(Ex. B to DeRita Aff.)
Despite these assertions, Plaintiffs nevertheless executed
an Agreement that included a release with a much greater
breadth. Plaintiffs’ challenge to the Agreement’s enforcement
therefore amounts, in essence, to a request that they be excused
from the preclusive effect of the Settlement Agreement as a
if they did not accept the settlement, they “would ultimately be
given less if anything.” (Id. at 19:2-5.) In other words, he
purported to believe that the settlement offer would be further
reduced if Plaintiffs “were to question anything else.” (Id.)
Nevertheless, Plaintiffs have provided no evidence of coercion,
imposition, or any other misconduct by Defendants. Plaintiffs
were represented by counsel and by an experienced claims
adjuster when they agreed to settle all claims, known and
unknown. (See Giaccone Dep. at 15:9-23 (noting that Plaintiffs
were represented by counsel at the time Plaintiffs received the
final offer and executed the Settlement Agreement).)
18
result of their own failure to review its limited and clear
provisions.
As indicated earlier, however, New Jersey law conclusively
presumes that Plaintiffs, in executing the Settlement Agreement,
read, understood, and assented to its terms.
F.3d at 270.
See Raiczyk, 377
And, Plaintiffs’ failure to actually have done so,
despite their acknowledgment on the Agreement, provides them
with no basis for relief. 6
See, e.g., Riverside Chiropractic
Grp. V. Mercury Ins. Co., 961 A.2d 21, 27 (N.J. Super. Ct. App.
Div. 2008) (quoting Henningsen v. Bloomfield Motors, Inc., 161
A.2d 69, 84 (N.J. 1960) (“As a general rule, ‘one who does not
choose to read a contract before signing it cannot later relieve
himself of its burdens.’”); Doug Brady, Inc. v. N.J. Bldg.
Laborers Statewide Funds, 250 F.R.D. 171, 175 (D.N.J. 2008)
(noting that failure to read an agreement “does not relieve” a
party of the “liability assumed thereunder”).
Moreover, although evidence of fraud, duress, or other
imposition may, under certain circumstances, provide a basis for
6
It is also significant that Defendant’s claims agent advised
Plaintiffs, prior to execution of the Settlement Agreement, that
80% of the damages to Plaintiffs’ property resulted from a
subsequent storm, rather than Hurricane Sandy. (See DeRita
Cert. at ¶ 2; Ex. A to DeRita Cert.) On that basis alone,
Plaintiffs should have known that the Agreement may have
encompassed more than Hurricane Sandy. That fact would have
been further reinforced and indeed confirmed in the event
Plaintiffs actually reviewed the Agreement’s plain terms.
19
rescission, Plaintiffs have pointed to no such evidence.
Rather, Plaintiffs rely upon evidence that suggests only their
own misunderstanding and/or unilateral mistake concerning the
clear writing they signed, but none that casts any doubt upon
the propriety of Defendant’s conduct or gives rise to any
reasonable inference of Defendant’s fraud, coercion, or other
trickery. 7
Plaintiffs’ subjective failings standing alone, however,
prove insufficient to rescind the Agreement, and fail to create
a genuine issue of material fact sufficient to defeat summary
judgment.
See Weisman, 982 F. Supp. 2d at 396 (finding no
evidence of fraud, duress, or other imposition in the undisputed
facts produced in discovery, and granting summary judgment based
upon the terms of a settlement agreement); see also Shernoff v.
Hewlett-Packard Co., No. 04-4390, 2006 WL 3497798, at *4 (D.N.J.
Dec. 4, 2006) (finding no credible evidence of misrepresentation
or fraud that might arguably warrant rescinding the settlement
agreement), aff’d, 302 F. App’x 83 (3d Cir. 2008).
Defendant’s
motion for summary judgment will therefore be granted. 8
7
Nor is this a case in which Plaintiffs obtained a settlement in
a mere token amount. Indeed, Defendant provided Plaintiffs, as
stated above, a total payment of $458,446.11 in full
satisfaction of their outstanding insurance claim. (See
generally Ex. C to Greisman Aff.)
8 The Agreement provides, as stated above, that the “prevailing
party in any action to enforce this Release and Settlement
Agreement shall be entitled (both at trial and upon appeal) to
20
CONCLUSION
For all of these reasons, Defendant’s motion for summary
judgment will be granted.
An accompanying Order will be
entered.
June 29, 2015
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
attorney’s fees, interest, costs, and expense of litigation.”
Here, Defendant requests an award of “the fees and costs” it
incurred “in making the instant motion.” (Def.’s Br. at 10.)
Having prevailed in its motion, the Court will permit Defendant
to file its affidavit of costs and attorney’s fees in the format
required by Local Civil Rules 54.1 and 54.2 within fourteen (14)
days. A judgment for attorney’s fees and costs will be entered
if these submissions are timely made and approved by the Court.
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