Opinion
DOCKET NO. A-1965-13T3
06-13-2016
MARC J. COMER, as administrator ad prosequendum of the ESTATE OF RAQUEL FIGUEROA, Plaintiff-Appellant/Cross-Respondent, v. PATRICIA M. PACHECO, PATRICIA M. PACHECO t/a PAT'S HOUSEKEEPING SERVICE, and GEICO INDEMNITY COMPANY, Defendants-Respondents, and PATRICIA M. PACHECO, and PATRICIA M. PACHECO t/a PAT'S HOUSEKEEPING SERVICE, Third-Party Plaintiffs, v. THE PROFORMANCE INSURANCE COMPANY, n/k/a PALISADES PROPERTY & CASUALTY INSURANCE COMPANY, Third-Party Defendant-Respondent/Cross-Appellant. JOANNA LOPEZ, Plaintiff, v. TOWNSHIP OF MIDDLETOWN, RAYMOND HREBEK, PATRICIA PACHECO, individually and t/a PAT'S HOUSEKEEPING SERVICE, and GEICO INSURANCE COMPANY, Defendants.
Gerald H. Clark argued the cause for appellant/cross-respondent (Clark Law Firm, PC, attorneys; Mr. Clark and William S. Peck, of counsel and on the briefs). Aldo Russo argued the cause for respondent Pat's Housekeeping Service (Lamb, Kretzer, LLC, attorneys; Robert D. Kretzer, on the brief). Glenn D. Curving argued the cause for respondent/cross-appellant (Riker Danzig Scherer Hyland & Perretti LLP, attorneys; Mr. Curving, of counsel and on the briefs; Stephanie M. Panico, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, Rothstadt and Currier. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-171-09. Gerald H. Clark argued the cause for appellant/cross-respondent (Clark Law Firm, PC, attorneys; Mr. Clark and William S. Peck, of counsel and on the briefs). Aldo Russo argued the cause for respondent Pat's Housekeeping Service (Lamb, Kretzer, LLC, attorneys; Robert D. Kretzer, on the brief). Glenn D. Curving argued the cause for respondent/cross-appellant (Riker Danzig Scherer Hyland & Perretti LLP, attorneys; Mr. Curving, of counsel and on the briefs; Stephanie M. Panico, on the briefs). PER CURIAM
Raquel Figueroa died as the result of a motor vehicle accident that occurred on April 4, 2006, when her employer, defendant Patricia M. Pacheco, failed to stop at a stop sign, resulting in a collision between her vehicle and a garbage truck. Patricia, the owner of Pat's Housekeeping Service, was driving Figueroa and another employee, Joanna Lopez, to their second cleaning job of the day. The insurance coverage dispute that followed arose from the fact that Patricia was driving a different vehicle than the one she customarily used to drive to cleaning jobs.
Because we mention both Patricia and Jorge Pacheco in this opinion, we refer to them by their first names to avoid confusion and mean no disrespect.
Plaintiff appeals from orders that vacated a Griggs settlement and consent judgment, dismissed the case as settled pursuant to an offer of judgment and dismissed all claims made on behalf of Figueroa's partner, Jose Cervantes. Proformance Insurance Company (Proformance) appeals from an order that granted summary judgment to plaintiff and denied its motion for summary judgment on the issue of coverage. For the reasons that follow, we reverse the order vacating the Griggs settlement and consent judgment, and affirm the orders that dismissed Cervantes's claims and declared the Proformance policy provided coverage. In light of our decision on these issues, we need not address the arguments concerning the offer of judgment.
Griggs v. Bertram, 88 N.J. 347 (1982).
Proformance is now known as Palisades Property and Casualty Insurance Company.
I.
Ordinarily, Patricia drove a Ford minivan to cleaning jobs. This vehicle was registered to "Pat's Housekeeping" and was insured under a $500,000 commercial automobile policy issued by Proformance to "Pat's Housekeeping Service t/a Patricia Pacheco" (Pat's Housekeeping). Because the minivan was being repaired, Patricia was driving a 2003 Mitsubishi Montero. Title for the Montero was in the name of Patricia M. Pacheco. It was insured under a GEICO $100,000 per person/$300,000 per accident policy issued to "Jorge E. Pacheco and Patricia M. Pacheco." It is agreed that the GEICO policy provided primary coverage for the accident.
Counsel for Patricia and Patricia M. Pacheco t/a Pat's Housekeeping Service (collectively, defendants) provided Proformance with a statement of loss under the Proformance policy in October 2007. Proformance denied coverage for Patricia's claim in November 2007, stating the Montero was Patricia's personal vehicle, insured by GEICO, and was not covered because it was not a scheduled vehicle and did not qualify for coverage under other provisions because it was owned by Patricia.
In December 2007, Marc J. Comer, as administrator ad prosequendum (plaintiff), filed a complaint against defendants under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, on behalf of Figueroa's partner, Jose Cervantes, their child, and Figueroa's child from another relationship. GEICO provided a defense for Patricia and filed an answer on her behalf. Represented by separate counsel, Pat's Housekeeping filed an answer, a cross-claim against GEICO, and a third-party complaint against Proformance, seeking a defense and indemnification. Proformance filed an answer to Pat's Housekeeping's third-party complaint.
In January 2009, Proformance filed a motion for summary judgment against Patricia and Pat's Housekeeping seeking a declaratory judgment that its policy did not provide coverage for the claim. Shortly before plaintiff filed a cross-motion for summary judgment, counsel for Patricia and Pat's Housekeeping sent a letter to counsel for Proformance, dated June 4, 2009, that referred to the pending motion and stated in part:
Kindly be advised we consider your client has abandoned the insurance and defense of Ms. Pacheco and Pat's Housekeeping Service based upon the insurance determination provided to Ms. Pacheco and this declaratory judgment action. In addition, your summary judgment motion makes your position abundantly clear.
In summary, the carrier has determined that if [plaintiff] should win, or even if he should not win, all costs and defense and awards granted would be the obligation of Ms. Pacheco and not your client, the insurance carrier. We consider such a position an abandonment of insurance for Ms. Pacheco. This letter is to advise you that we are actively pursuing settlement negotiations with [plaintiff] and the Estate of Raquel Figueroa. Pursuant to Griggs v. Bertram, 88 N.J. 347 (1982), should we agree to settle
this matter, your client will be bound by the terms of the settlement. This letter is to keep you apprised of the status of this case.
In addition, counsel for Proformance was copied on a letter to the attorneys for Joanna Lopez and the driver of the truck involved in the collision. That letter set forth the status of the settlement negotiations with the plaintiff in this action:
Please be advised that the undersigned is undertaking to negotiate with [counsel for plaintiff] to negotiate a settlement and assignment of any rights to indemnification against the Proformance Insurance Company pursuant to Griggs v. Bertram, 88 N.J. 347 (1982). The settlement discussion . . . encompass[es] a settlement based upon the full amount of the policy, namely $500,000.00. If this settlement is reached and is ultimately enforced by the courts, it would exhaust the policy limits and your clients would have no available coverage beyond that which exists on the GEICO policy.
This letter is sent to you so that you may be apprised of the status of the matter. It is my understanding that neither of the plaintiffs in the case intend to seek damages beyond the amount of the $100,000 - $300,000 policy coverage available under the GEICO policy. . . . It is our intention . . . to settle the matter for the policy limits and an assignment of all rights under the policy to [plaintiff].
Proformance did not respond to either letter.
While the summary judgment motions were pending, the court conducted several case management conferences and directed that no other dispositive motions could be filed until permitted by the court. In July 2009, the trial court denied Proformance's motion for summary judgment on the declaratory judgment action, and granted plaintiff's cross-motion for summary judgment, compelling Proformance to provide coverage for the motor vehicle accident.
The Griggs settlement was memorialized in a "Settlement Agreement, Assignment and Limited Release" between plaintiff and defendants, and fully executed within a month of the order that confirmed coverage under the Proformance policy. Defendants agreed to the entry of final judgment against them in the amount of $400,000, which constituted eighty percent of the Proformance policy limits. Defendants also assigned any rights they had against Proformance in the instant litigation to plaintiff, who agreed to refrain from docketing or executing upon the judgment against defendants. The agreement set forth the means by which plaintiff would collect on the judgment:
Plaintiff . . . will seek to enforce said judgment and the amount the parties have settled to herein, against [Proformance]. . . . Plaintiff, as assignee of Defendants, will seek a Court ruling that [Proformance] is required to indemnify Defendants for the settlement amount set forth in this agreement.
[Emphasis added.]
The agreement provided further:
[I]f a Court of competent jurisdiction determines this Griggs settlement is not reasonable in amount, or has not been entered
into in good faith, or is otherwise void in part (or in whole), then at Plaintiff's sole discretion, this entire settlement agreement shall be deemed null and void in its entirety.
On October 6, 2009, the court entered a final judgment by consent in favor of plaintiff against defendants in the amount of $400,000; such judgment was expressly "subject to the terms and conditions of the Settlement Agreement, Assignment and Limited Release" executed by plaintiff and defendants.
On October 15, 2009, Proformance moved to vacate the Griggs settlement and consent order. Proformance stated it had repeatedly advised defense counsel there was no coverage for the claim under its policy and that entering into the agreement prejudiced Proformance in breach of the insurance contract. Proformance contended it had not received notice of the final judgment that was entered by consent and had not received a copy of the settlement agreement. The motion did not explicitly allege the settlement was unreasonable or entered into in bad faith. Plaintiff filed a cross-motion to enforce the settlement.
In January 2010, the trial judge denied the cross-motion. Although there was no determination as to the reasonableness of the settlement or the good faith of the parties, the judge granted the motion to vacate the settlement. In stating his reasons, the judge alluded to there being some confusion regarding his plan for case management. He stated that, "as a matter of equity," he had to "vacate both the settlement and the consent judgments." His stated goal was "to put the parties where they were, at least in some respects, before . . . the coverage decision." However, he remained "convinced" coverage existed under the Proformance policy and stated nothing "prevents the plaintiffs from entering into a Griggs settlement even today."
During the period from January 2010 through September 2013, counsel for GEICO and Patricia agreed that GEICO was the primary policy for this accident. In January 2012, plaintiff sent an offer of judgment and demand for GEICO's policy limits pursuant to Rova Farms Resort, Inc. v. Investors Insurance Co., 65 N.J. 474 (1974). A dispute followed regarding the terms as they might affect plaintiff's ability to collect against the Proformance policy pursuant to the terms of the consent judgment. GEICO filed an acceptance of the offer in February 2012 and plaintiff contended the offer of judgment had been withdrawn. For fifteen months after filing its acceptance, GEICO continued to engage in litigation, including arbitration that resulted in a $1 million award to plaintiff. GEICO deposited its policy limits with the court in September 2013 pursuant to Rule 4:57.
In May 2013, Pat's Housekeeping filed a motion to dismiss the complaint pursuant to Rule 4:58-1, arguing the accepted offer of judgment filed by GEICO constituted a binding agreement on all parties. The court granted Pat's Housekeeping's motion to dismiss, and dismissed all claims on the ground that the offer of judgment was never formally withdrawn.
During this same period, Pat's Housekeeping also filed a motion for summary judgment to dismiss all claims pertaining to Jose Cervantes, Figueroa's partner, under the Wrongful Death Act. The trial court granted the motion, finding Cervantes could not be a beneficiary under the statute.
In this appeal, plaintiff argues the trial court erred: in failing to enforce the Griggs settlement and vacating the consent judgment (Point I); in dismissing the case as settled pursuant to the terms of the offer of judgment (Point II); and in dismissing all claims by Cervantes (Point III). In its cross-appeal, Proformance argues the trial court erred in granting summary judgment to plaintiff and denying its summary judgment motion on coverage.
II.
We first address Proformance's cross-appeal from the order granting summary judgment to plaintiff based upon the trial court's determination that the Proformance policy provided coverage.
A.
The interpretation of contracts and their construction are matters of law subject to de novo review. Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998). Although an insurance policy is a contract, "the insurance company is the expert and unilaterally prepares the policy, whereas the insured 'is a layman unversed in insurance provisions and practices.'" Villa v. Short, 195 N.J. 15, 23 (2008) (quoting Gibson v. Callaghan, 158 N.J. 662, 669 (1999)). Therefore, we apply different rules to the interpretation of these contracts of adhesion and "assume a particularly vigilant role in ensuring their conformity to public policy and principles of fairness." Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 175 (1992).
We are required to read coverage provisions broadly, Gibson, supra, 158 N.J. at 671, and construe exclusionary clauses strictly against the insurer, understanding "that the insured is entitled to protection to the full extent that any reasonable interpretation of them will permit." Sealed Air Corp. v. Royal Indem. Co., 404 N.J. Super. 363, 376 (App. Div.), certif. denied, 196 N.J. 601 (2008); see also Auto Lenders Acceptance Corp. v. Gentilini Ford, Inc., 181 N.J. 245, 269-70 (2004) (noting a court's obligation is "to protect the insured to the full extent that any fair interpretation [of the policy] will allow") (alteration in original) (quoting Mazzilli v. Accident & Cas. Ins. Co., 35 N.J. 1, 7 (1961)). When, as here, the claim involves the compensation of an innocent third party, we are also mindful that "the protection of innocent third parties is a primary concern of our personal injury no-fault system." Proformance Ins. Co. v. Jones, 185 N.J. 406, 420 (2005); see also Rutgers Cas. Ins. Co. v. LaCroix, 194 N.J. 515, 523-24 (2008).
In interpreting an insurance policy we begin with the plain language of the policy and give "the policy's words 'their plain, ordinary meaning.'" President v. Jenkins, 180 N.J. 550, 562 (2004) (citation omitted). "If the policy terms are clear, courts should interpret the policy as written and avoid writing a better insurance policy than the one purchased." Ibid.; see also Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990). However, if the policy language "fairly supports two meanings, one that favors the insurer, and the other that favors the insured, the policy should be construed to sustain coverage," President, supra, 180 N.J. at 563, to "comport with the reasonable expectations of the insured." Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001).
B.
As we have noted, the named insured on the declarations page of the Proformance commercial automobile policy is "Pat's Housekeeping t/a Patricia Pacheco." The declaration of coverage uses two symbols, "7" and "9," to identify the coverage provided. On the Business Auto Coverage Form, Symbol 7 is described as "Specifically Described 'Autos,'" which applies to the 2001 Ford listed on the vehicle schedule. Symbol 9 provided coverage for "Nonowned 'Autos' Only," defined as:
The language of this "coverage" provision has an illusory quality to it because the circumstances in which one could use an auto in one's business that one did not own, lease, hire, rent or even borrow must be very limited.
Only those "autos" you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes "autos" owned by your "employees," partners (if you are a partnership), members (if you are a limited liability company), or members of their households but only while used in your business or your personal affairs.
[(Emphasis added).]
It is undisputed that the Ford minivan covered by the policy was out of service for repairs on the day of the accident. Section I(C)(3) of the Proformance policy provides coverage for "Temporary Substitute Autos," which are defined as:
Any "auto" you do not own while used with the permission of its owner as a temporary substitute for a covered "auto" you own that is out of service because of its:
a. Breakdown;
b. Repair;
c. Servicing;
d. "Loss"; or
e. Destruction.
[(Emphasis added).]
Proformance's argument against coverage rests upon its definition of "you." The Business Auto Coverage Form states, "the words 'you' and 'your' refer to the Named Insured shown in the Declarations." Proformance contends it is "well-settled that an individual and his trade name are one in the same." As a result, because the "named insured" is a trade name, i.e., "Pat's Housekeeping Service t/a Patricia Pacheco," Patricia is also a named insured. Therefore, Proformance contends, the automobile Patricia owned and insured under the GEICO policy was not covered.
To support this argument, Proformance cites several cases for the proposition that an insured's trade name and given name should be equated. What is noteworthy about the authorities cited is that in each case, this equation of the trade name and the individual resulted in the extension of coverage to the individual. In none of the cases was contract language interpreted to deny coverage for the claim of an innocent third party. The authorities cited by Proformance therefore fail to provide compelling support for the conclusion that coverage should be denied as a matter of law.
Proformance cites to the following cases: O'Hanlon v. Hartford Acci. & Indem. Co., 639 F.2d 1019, 1022 (3rd Cir. 1981); Watson v. Agway Ins. Co., 291 N.J. Super. 417, 421 (App. Div.), certif. denied, 146 N.J. 500 (1996); Am. Bankers Ins. Co. v. Stack, 208 N.J. Super. 75, 79 (Law Div. 1984); Auto-Owners Ins. Co. v. Rhodes, 748 S.E.2d 781, 785 (S.C. 2013).
See O'Hanlon, supra, 639 F.2d at 1026; Watson, supra, 291 N.J. Super. at 419; Am. Bankers, supra, 208 N.J. Super. at 82; Auto-Owners, 748 S.E.2d at 599.
C.
We turn to the plain language of the documents here within the context of the insurance sought by defendants. At the outset, we note there is no suggestion that defendants made any misrepresentation to attempt to secure an economic advantage regarding the premium. In addition, contrary to Proformance's contention, this is not a simple matter of Pat's Housekeeping and Patricia being the sole and interchangeable entity/individual.
As we have noted, Patricia held title for the Montero, which was insured under a personal automobile policy issued to Patricia and Jorge Pacheco. The undisputed testimony was that the day of the accident was the only day Patricia used that vehicle for work.
The declarations page has been described as "having signal importance" in defining the insured's reasonable expectations of coverage. Lehroff v. Aetna Cas. & Sur. Co., 271 N.J. Super. 340, 346 (App. Div. 1994); see also President, supra, 180 N.J. at 565 (noting "our courts place particular emphasis on the declarations page when determining the reasonable expectations of the insured").
This was a commercial automobile policy and the named insured was a business. Coincidentally, the named insured on the declarations page was not Patricia Pacheco, t/a Pat's Housekeeping, but rather, unartfully, identified as "Pat's Housekeeping, t/a Patricia Pacheco." (Emphasis added). Certainly, it was reasonable to assume that when the named insured on a commercial insurance policy was a commercial entity, the references to "you" in the policy thereafter were to the commercial entity. Indeed, in Lehroff, supra, we stated the insured's reasonable expectations, raised by the declarations page, may prevail over policy language to the contrary in appropriate circumstances. 271 N.J. Super. at 347. We conclude such circumstances exist here.
According to Patricia, her ex-husband Jorge, and their insurance broker Glenn Kennard, it was Jorge who handled all insurance matters. Although the application for the commercial auto insurance policy named "Pat's Housekeeping" as the applicant, it was Jorge who signed the application as applicant. The application asked if there were "any vehicles owned but not scheduled on this application." Jorge answered "yes" and explained, "private [illegible] insured separately." This response accurately provided Proformance with the information that an automobile was owned "privately" and was insured under another policy. It also underscored defendants' understanding that a distinction existed between the commercial and the personal vehicles.
In 2007, Patricia testified she and Jorge were divorced approximately fifteen years earlier and resumed living together approximately eight years prior to the date of her testimony.
The definition of "you" included elsewhere in the policy offers no illumination to the untutored insured that such an understanding is erroneous. The policy merely circles back to the "Named Insured shown in the Declarations." This language fails to render unreasonable defendants' expectation that "you" referred to the business.
We therefore arrive at the conclusion that the language of the coverage provisions is fairly susceptible to two interpretations. Proformance's interpretation of the legal consequence of using a trade name as the named insured - which is not disclosed anywhere in the policy - results in a conclusion that there is no coverage. However, another interpretation is warranted based on the unvarnished language in the declarations page and policy. If we literally take the identity of the named insured on the declarations page for the Proformance policy, it is not identical to the titled owner of the Montero. Rather, it is a business insured on a commercial automobile policy. Under a simple reading of the policy, then, it is reasonable for defendants to expect that "you" on the commercial automobile policy applies to the business entity listed as the insured on the declarations page.
There is yet another dissimilarity as the GEICO policy was issued to Patricia and Jorge, who has no known ownership interest in either vehicle or in Pat's Housekeeping.
In short, Proformance's interpretation of the policy language requires reference to — and agreement with — extrinsic legal authorities as interpreted by Proformance; the interpretation is not self-evident in the language of the policy itself. Mindful of the principles applicable to the interpretation of the insurance contract here, we conclude that the policy may be fairly interpreted to provide coverage that comports with the insured's reasonable expectations. Therefore, we agree that plaintiff's cross-motion for summary judgment was properly granted.
III.
We next address plaintiff's challenge to the order vacating the Griggs settlement and consent judgment.
There is a strong public policy in favor of the settlement of litigation, Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008), which "rests on the recognition that parties to a dispute are in the best position to determine how to resolve a contested matter in a way which is least disadvantageous to everyone." Gere v. Louis, 209 N.J. 486, 500 (2012) (citation omitted).
In Griggs, the Court provided a means by which a tortfeasor, whose insurer has wrongfully denied coverage, may enter into a settlement to limit the tortfeasor's personal exposure. Griggs, supra, 88 N.J. at 364; see N.J. Eye Ctr., P.A. v. Princeton Ins. Co., 394 N.J. Super. 557, 565-66 (App. Div.), certif. denied, 193 N.J. 275 (2007). "When an insurer violates its contractual obligations to the insured, it forfeits its right to control settlements." Baen v. Farmers Mut. Fire Ins. Co. of Salem County, 318 N.J. Super. 260, 267 (App. Div. 1999); accord Fireman's Fund Ins. Co. v. Sec. Ins. Co., 72 N.J. 63, 71 (1976). Upon such a breach by the insurer, the insured may enter a settlement and, if the settlement is both reasonable and made in good faith, the settlement may be enforced against the insurer. Griggs, supra, 88 N.J. at 364.
The Court succinctly described the ground rules for an enforceable Griggs settlement:
Where an insurer wrongfully refuses coverage and a defense to its insured, so that the insured is obligated to defend himself in an action later held to be covered by the policy, the insurer is liable for the amount of the judgment obtained against them. The only qualifications to this rule are that the amount paid in settlement be reasonable and that the payment be made in good faith.
[Ibid. (emphasis added) (quoting Sec. Ins., supra, 72 N.J. at 71).]
When the insurer challenges the enforceability of the settlement, the trial court must conduct an "independent review of the [s]ettlement in order to determine whether it is reasonable and made in good faith." Fireman's Fund Ins. Co. v. Imbesi, 361 N.J. Super. 539, 565 (App. Div.), certif. denied, 178 N.J. 33 (2003). The insured bears the initial burden of producing evidence of the reasonableness and good faith of the settlement. Griggs, supra, 88 N.J. at 368. Because a settlement may be enforced against an insurer "only if it is reasonable in amount and entered into in good faith," ibid., enforcement of the settlement must be denied if either of those conditions is not satisfied. N.J. Eye Ctr., supra, 394 N.J. Super. at 567; Imbesi, supra, 361 N.J. Super. at 564. Once the insured meets its burden of production, the insurer "bears the ultimate burden of persuasion by a preponderance of the evidence" and must prove the settlement was unreasonable or the product of bad faith. Imbesi, supra, 361 N.J. Super. at 565.
The Griggs settlement in this case was reached after the trial court found that coverage existed for the underlying claim. Therefore, the threshold requirement — that coverage was wrongfully denied — was met. Given the insurer's challenge to the settlement, the court was therefore required to conduct an "independent review" to determine if the settlement was "reasonable and made in good faith." Ibid. However, the enforceability of the settlement was never tested against the Griggs criteria. The fact that the settlement came at a time that was not compatible with the court's plan for case management did not provide a legally sound basis for vacating the settlement and consent judgment. We conclude the court erred in doing so for that reason. Therefore, we reverse the order vacating the settlement and consent judgment and remand for a Griggs hearing.
IV.
Plaintiff contends the trial court erred in dismissing Cervantes's claim under the Wrongful Death Act. This argument lacks sufficient merit to warrant discussion, R. 2:11-3(e)(1)(E), beyond the following brief comments.
In June 2000, Figueroa and Cervantes began living together and holding themselves out as married in Puebla, Mexico. After moving to New Jersey, they continued to live together and held themselves out as married until Figueroa's death on April 4, 2006. Plaintiff asserts that under the law of Puebla, Mexico, they established a valid common law marriage.
Under the Wrongful Death Act, damages may be awarded for the pecuniary loss sustained by the decedent's survivors as a result of "the tortious conduct of others." Smith v. Whitaker, 160 N.J. 221, 231 (1999). However, a decedent's survivors are limited to those "entitled to take any intestate personal property of the decedent." N.J.S.A. 2A:31-4. Cohabitants, "who never could have standing under intestacy law," are therefore excluded. Gangemi v. Nat'l Health Labs., Inc., 291 N.J. Super. 569, 574 (App. Div. 1996).
New Jersey does not grant common law marriage, N.J.S.A. 37:1-10, but will recognize common law marriage if properly formed in another jurisdiction. Winn v. Wiggins, 47 N.J. Super. 215, 220 (App. Div. 1957). Granting plaintiff all favorable inferences from the evidence, R. 4:46-2(c), Cervantes and Figueroa satisfied the conditions for concubinage under the Civil Code for the Free and Sovereign State of Puebla, Mexico (Puebla Civil Code). The Puebla Civil Code provides that concubinage ends by death of one of the domestic partners, the choice of either one of them and even the mere cessation of cohabitation. Id. art. 298, § II. Further, "the termination of concubinage or cessation of life in common does not entitle [a domestic partner] to any claim between the domestic partners." Id. art. 298, § III.
Pat's Housekeeping submitted a certified translation of the Puebla Civil Code to the trial court. --------
Cervantes's claim therefore fails for two reasons. First, these provisions distinguish concubinage from a common law marriage that would be recognized under New Jersey law. Second, even under the Puebla Civil Code, their concubinage ended with Figueroa's death and did not provide a basis for any claim on Cervantes's behalf.
The orders granting plaintiff's cross-motion for summary judgment declaring that coverage exists under the Proformance policy, and defendant's motion to dismiss Cervantes's claims are affirmed. The order vacating the Griggs settlement and consent judgment is reversed and the matter is remanded for a Griggs hearing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION