                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4419-17T4
                                                                     A-4547-17T4

KENNETH McDONALD,
Principal by his Attorney-in-Fact,
MARY GILYARD,

          Plaintiffs,

v.

MANUEL PARADA, NATIONAL
RETAIL SYSTEMS, INC.,
KEYSTONE FREIGHT
CORPORATION, NATIONAL RETAIL
TRANSPORTATION, INC., AGF
MARINE CONSULTANTS, INC.,
MARK ANDERSON, and MHP
TRUCKING, LLC,

          Defendants,

and

INTERPOOL, INC., d/b/a TRAC
INTERMODAL, INC., and
TRAC LEASE, INC.,

          Defendants/Third-Party
          Plaintiffs-Respondents,
v.

HARTFORD FIRE INSURANCE
COMPANY, ACE AMERICAN
INSURANCE COMPANY,
and HANOVER INSURANCE
COMPANY,

      Third-Party Defendants,

and

DARWIN NATIONAL ASSURANCE
COMPANY,

      Third-Party Defendant-
      Appellant,

and

AMERICAN MARITIME SERVICES OF
NJ, INC. d/b/a INTEGRATED
INDUSTRIES CORPORATION,
and GARDEN STATE INTERMODAL
REPAIR,

      Defendants/Third-Party
      Plaintiffs,

v.

DARWIN NATIONAL ASSURANCE
COMPANY/ALLIED WORLD, MARKEL
INSURANCE COMPANY, EVANSTON
INSURANCE COMPANY,
NAVIGATORS INSURANCE
COMPANY, JBL TRINITY GROUP
LTD., and CAPACITY MARINE

                                    A-4419-17T4
                                2
CORPORATION,

     Third-Party Defendants.
__________________________________

KENNETH McDONALD,
Principal by his Attorney-in-Fact,
MARY GILYARD,

      Plaintiffs,

v.

MANUEL PARADA, NATIONAL
RETAIL SYSTEMS, INC., KEYSTONE
FREIGHT CORPORATION, NATIONAL
RETAIL TRANSPORTATION, INC.,
AGF MARINE CONSULTANTS, INC.,
MARK ANDERSON, and MHP
TRUCKING, LLC,

      Defendants,

and

INTERPOOL, INC., d/b/a TRAC
INTERMODAL, INC., and TRAC LEASE,
INC.,

      Defendants/Third-Party
      Plaintiffs,

v.

HARTFORD FIRE INSURANCE
COMPANY, ACE AMERICAN
INSURANCE COMPANY, DARWIN
NATIONAL ASSURANCE

                                         A-4419-17T4
                                     3
COMPANY, and HANOVER
INSURANCE COMPANY,

      Third-Party Defendants,

and

AMERICAN MARITIME SERVICES OF
NJ, INC. d/b/a INTEGRATED
INDUSTRIES CORPORATION,
and GARDEN STATE INTERMODAL
REPAIR,

      Defendants/Third-Party
      Plaintiffs-Appellants,

v.

DARWIN NATIONAL ASSURANCE
COMPANY/ALLIED WORLD, MARKEL
INSURANCE COMPANY, EVANSTON
INSURANCE COMPANY,
NAVIGATORS INSURANCE
COMPANY, JBL TRINITY GROUP
LTD., and CAPACITY MARINE
CORPORATION,

     Third-Party Defendants-
     Respondents.
__________________________________

           Argued September 11, 2019 – Decided October 2, 2019

           Before Judges Haas, Mayer and Enright.

           On appeal from the Superior Court of New Jersey, Law
           Division, Middlesex County, Docket No. L-0208-14.


                                                                  A-4419-17T4
                                    4
           Charles Dewey Cole, Jr. argued the cause for appellant
           Darwin National Assurance Company in A-4419-17
           (Newman Myers Kreines Gross Harris, attorneys;
           Charles Dewey Cole, Jr., on the briefs).

           John J. Levy argued the cause for respondents
           Interpool, Inc., TRAC Intermodal, Inc. and TRAC
           Lease, Inc., in A-4419-17 (Montgomery, McCracken,
           Walker & Rhoads, LLP, attorneys; Gerald J. Corcoran
           and Alexandra S. Jacobs, on the brief).

           Joseph J. Perrone argued the cause for appellant
           American Maritime Services of NJ, Inc., d/b/a
           Integrated Industries, in A-4547-17 (Giuliano
           McDonnell & Perrone, LLP, attorneys; Joseph J.
           Perrone, Kevin P. Albertson, and Matthew M. Gorden,
           on the briefs).

           Paul Piantino III argued the cause for respondent
           Evanston Insurance Company in A-4547-17 (White and
           Williams, LLP, attorneys; Paul Piantino III and James
           R. Hearon, on the brief).

           Debra Miller Krebs argued the cause for respondent
           JBL Trinity Group, Ltd. in A-4547-17 (Keidel, Weldon
           & Cunningham, LLP, attorneys; Debra Miller Krebs, on
           the brief).

PER CURIAM

     In these appeals, calendared back-to-back and consolidated for the

purpose of issuing a single opinion, we review the motion judge's January 20,

2017 omnibus order denying a motion for summary judgment filed by

defendant/third-party plaintiff American Maritime Services of NJ, Inc. d/b/a


                                                                      A-4419-17T4
                                     5
Integrated Industries (AMS), seeking a declaration of coverage from third-party

defendant Evanston Insurance Company (Evanston), one of AMS's insurance

providers, for a personal injury action brought by plaintiff Kenneth McDonald.

AMS also appeals from a February 17, 2017 order granting a motion filed by its

insurance broker, third-party defendant JBL Trinity Group, Ltd. (JBL), to

dismiss AMS's third-party complaint for failure to file an affidavit of merit

(AOM) pursuant to N.J.S.A. 2A:53A-27.

      Separately, third-party defendant Darwin National Assurance Company

(Darwin) appeals from the January 20, 2017 omnibus order denying its motion

for summary judgment, seeking a declaration that it was not obligated to defend

and indemnify defendants/third-party plaintiffs Interpool, Inc. d/b/a TRAC

Intermodel, Inc. and TRAC Lease, Inc. (TRAC) in the personal injury action.

Darwin also appeals from an April 27, 2018 order determining Darwin failed to

comply with the January 20, 2017 omnibus order and awarding defense fees and

costs to TRAC as a result.

      We reverse and remand all orders on appeal because the motion judge

failed to make the required findings of facts and conclusions of law necessary

for our review.




                                                                       A-4419-17T4
                                      6
      We provide a brief factual background to give context to the matters on

appeal. Plaintiff suffered personal injuries when he was struck by a wheel that

disengaged from a chassis. The chassis was attached to a tractor trailer truck

owned by defendant National Retail Transportation, Inc. (NRT).

      The chassis was owned by TRAC. TRAC leased its chassis to NRT. NRT

placed a cargo container on the leased chassis and attached the chassis to its

tractor trailer truck. An employee of NRT, defendant Manuel Parada, was

driving the tractor trailer truck at the time of the accident.

      AMS maintains and repairs chassis. AMS surveyed TRAC's chassis in

accordance with a written maintenance and repair agreement less than a month

before plaintiff's accident.

      Plaintiff filed a negligence claim against several defendants. In turn,

various defendants filed third-party complaints.

      In its third-party complaint, AMS sued its primary insurance carrier,

Darwin, and its excess insurance carrier, Evanston, seeking a coverage

determination that AMS was entitled to defense and indemnification from the




                                                                       A-4419-17T4
                                         7
insurance companies for plaintiff's claims.     Darwin and Evanston denied

coverage.1

      In the event there was no coverage available to AMS under the insurance

policies, AMS also filed a third-party claim against its insurance broker, JBL,

alleging negligence for failing to procure proper insurance coverage for AMS.

      AMS moved for summary judgment against Evanston. Evanston filed a

cross-motion for summary judgment seeking a declaration that its policy did not

cover AMS and there was no obligation to defend or indemnify AMS for

plaintiff's personal injury action. The motion judge denied AMS's motion and

granted Evanston's cross-motion. The judge concluded AMS was barred from

coverage under the auto exclusion in Evanston's policy.

      JBL filed a motion to dismiss AMS's third-party complaint, claiming AMS

failed to serve an AOM. The trial court granted JBL's motion, finding an AOM

was required.

      TRAC also filed a third-party complaint against various defendants.

TRAC sought a judicial determination that it was entitled to defense and

indemnification from Darwin for plaintiff's personal injury action.



1
  Eventually, Darwin agreed to defend and indemnify AMS under a reservation
of rights.
                                                                       A-4419-17T4
                                       8
         Darwin filed a motion for summary judgment seeking a declaration that

its policy did not apply to TRAC and there was no obligation to defend or

indemnify TRAC. TRAC cross-moved for summary judgment. The trial court

denied Darwin's motion and granted TRAC's cross-motion, concluding TRAC

was entitled to coverage under Darwin's insurance policy. Despite the court's

order, Darwin failed to provide coverage to TRAC.

         Plaintiff subsequently settled his personal injury action.       TRAC then

moved for judgment against Darwin seeking litigation fees and costs associated

with defending plaintiff's personal injury claim and pursuing its coverage claim

against Darwin. A different motion judge granted TRAC's motion, finding

Darwin failed to comply with the January 20, 2017 omnibus order and awarding

litigation costs and attorney's fees to TRAC.

         On appeal, Darwin and AMS repeat the arguments presented to the trial

court.     However, the motion judge failed to set forth findings of fact and

conclusions of law to allow our review of the issues presented in these appeals.

         Pursuant to Rule 1:7-4(a), "the court shall . . . find the facts and state its

conclusions of law thereon . . . on every motion decided by a written order that

is appealable as of right[.]" See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289,

300-01 (App. Div. 2009). The absence of an adequate expression of a trial


                                                                               A-4419-17T4
                                            9
judge's rationale "constitutes a disservice to the litigants, the attorneys, and the

appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

      The parties suggest we discern the judge's factual findings and legal

conclusions based on the lengthy colloquy among the judge and counsel during

oral argument on the motions. However, a judge's colloquy during a motion

hearing is not a substitute for the judge's obligation to articulate findings of fact

and conclusions of law. Pardo v. Dominquez, 382 N.J. Super. 489, 492 (App.

Div. 2006) (rejecting "the suggestion that a judge's comment or question in a

colloquy can provide the reasoning for an opinion which requires findings of

fact and conclusions of law.").

      "[O]ur function as an appellate court is to review the decision of the trial

court, not to decide the motion tabula rasa." Estate of Doerfler v. Fed. Ins. Co.,

454 N.J. Super. 298, 302 (App. Div. 2018). The parties and the court cannot

properly function or proceed without some understanding of why a judge has

made a particular ruling.

      The rendering of factual findings and legal conclusions flowing from such

findings is tasked to the motion judge. While appellate courts exercise de novo

review of a trial court's decision to grant or deny a motion for summary




                                                                             A-4419-17T4
                                        10
judgment, we are not compelled to delve into the record and make findings of

fact. We should not guess or assume what the judge might have been thinking.

      Without adequate findings of fact and legal conclusions, we are

constrained to reverse and remand the matters to the trial court. Given our

determination to remand, we decline to address the merits of the issues raised in

these appeals.

      Within forty-five days of the date of this opinion, the motion judge shall

consider appellants' contentions and provide the requisite findings of fact and

conclusions of law on all issues raised in appellants' briefs. We do not suggest

the outcome of the motions.

      Reversed and remanded. We do not retain jurisdiction.




                                                                         A-4419-17T4
                                      11
