                                NOT FOR PUBLICATION WITHOUT THE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-4295-18T3

GEOVANY COTO,

          Plaintiff-Appellant,

v.

CUNNINGHAM CONSTRUCTION
COMPANY, LLC, RAYS DRYWALL,
LLC, JB INSULATION AND
DRYWALL, LLC, NORTHFIELD
INSURANCE, and NORTHLAND
INSURANCE,

          Defendants,

and

COSTELLO & ASSOCIATES
INSURANCE GROUP,

     Defendant-Respondent.
________________________________

                    Submitted January 14, 2020 – Decided March 6, 2020

                    Before Judges Currier and Firko.
             On appeal from an interlocutory order of the Superior
             Court of New Jersey, Law Division, Union County,
             Docket No. L-0648-17.

             Ginarte Gallardo Gonzalez & Winograd, LLP,
             attorneys for appellant (John Joseph Ratkowitz, of
             counsel and on the briefs; Sean T. Payne, on the briefs).

             Mc Elroy Deutsch Mulvaney & Carpenter, LLP,
             attorneys for respondent (Christopher James Carey, of
             counsel and on the brief; Daniel Albert Malet, on the
             brief).

PER CURIAM

      Plaintiff Geovany Coto appeals from a March 29, 2019 order dismissing

his complaint with prejudice against defendant Costello & Associates Insurance

Group (Costello) and an April 26, 2019 order denying reconsideration. Because

we conclude that plaintiff may have a potential claim against Costello,

contingent on the manner of resolution of his claims against other parties, we

reverse and remand for the trial court to enter an order of dismissal without

prejudice.

      In July 2016, plaintiff sustained injuries while working as a drywall

installer on a construction site. In February 2017, plaintiff filed a complaint

against defendant Cunningham Construction Company, LLC (Cunningham) (the

general contractor) and defendant Rays Drywall, LLC (the subcontractor). He

alleged claims of negligence and statutory torts; violations of the Occupational

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                                        2
Safety and Health Administration Act (OSHA), 29 U.S.C. §§ 651 to 678; and

violations of the New Jersey Construction Safety Act (CSA), N.J.S.A. 34:5-166

to -182.

      According to plaintiff, Northfield Insurance (Northfield) or Northland

Insurance (Northland) issued a general liability policy to Cunningham. In June

2017, Northfield informed plaintiff's counsel that its policy did not provide

coverage to Cunningham for plaintiff's personal injuries. Thereafter, plaintiff

amended his complaint three times, adding Northfield, Northland, and another

subcontractor as defendants, and adding a claim that plaintiff was an intended

third-party beneficiary of the policy issued by Northfield to Cunningham.

      On January 25, 2019, plaintiff amended the complaint for the fourth time,

adding Costello as a defendant and alleging a professional negligence claim

against the insurance broker. Plaintiff claimed Costello was negligent in failing

to advise Cunningham of the necessary and required liability insurance. The

negligent advice resulted in Cunningham not being properly insured and failed

to protect Cunningham and third-party beneficiaries such as plaintiff.

      Costello moved to dismiss the complaint, asserting that plaintiff's personal

injury action was governed by a two-year statute of limitations, N.J.S.A. 2A:14-

2(a). Because plaintiff's amended complaint against Costello was filed more


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                                        3
than two years after the accident, Costello contended the statute of limitations

had expired, requiring the dismissal of the complaint.

       Plaintiff contended in opposition that a six-year statute of limitations 1

applied to his professional negligence claims against Costello. Plaintiff also

asserted he had standing to assert this cause of action as an intended third -party

beneficiary of Cunningham's insurance policy.

       On March 29, 2019, the court granted Costello's motion and dismissed the

complaint with prejudice. In a written statement of reasons, the court found it

was required to focus on the nature of the injury and not the underlying legal

theory. Therefore, the two-year statute of limitations applied because the nature

of the suit was for personal injuries.

       In an order of the same date, as Cunningham had not answered the

complaint, the court entered default judgment against Cunningham on the issue

of liability.

       In its denial of plaintiff's subsequent motion for reconsideration on April

26, 2019, the trial court found plaintiff lacked standing to enforce the contract

between Costello and Cunningham, and therefore could not assert an action

against Costello. The court noted that because plaintiff could not establish he


1
    N.J.S.A. 2A:14-1.
                                                                           A-4295-18T3
                                         4
could not collect any monies from Cunningham, the issue whether

Cunningham's coverage was adequate was "purely speculative at this point in

time." Therefore, plaintiff's action sounded only in personal injury and was

subject to dismissal under the two-year statute of limitations.

      On appeal, plaintiff argues the trial court erred in granting the motion to

dismiss and in denying reconsideration because the six-year statute of

limitations applies since this case is predicated on Costello's professional

negligence in failing to supply the appropriate insurance coverage and advice to

Cunningham.

      We review de novo a trial court's decision to grant or deny a motion to

dismiss under Rule 4:6-2(e).      Rezem Family Assocs., LP v. Borough of

Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011).             A "trial court's

interpretation of the law and the legal consequences that flow from established

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

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

      The trial court correctly perceived that the issue of whether Cunningham

had adequate coverage remained speculative at the time of Costello's motion.

The issue of Cunningham's coverage only becomes relevant if a factfinder

awards damages to plaintiff attributed to Cunningham's negligence. At that


                                                                          A-4295-18T3
                                        5
time, Cunningham, its assignee, or plaintiff, if he is found to have standing, may

have a potential claim against Costello. But that issue does not arise until

plaintiff has an unsatisfied judgment against Cunningham.

      However, the court acted prematurely in dismissing plaintiff's claims

against Costello with prejudice. Plaintiff must be afforded the opportunity to

litigate his claims against Cunningham and the other defendants. If plaintiff

prevails and obtains a judgment against Cunningham, which Cunningham does

not satisfy, plaintiff may decide to pursue his claims against Costello.

      The claims against Costello are separate from those asserted against the

other defendants. Because plaintiff alleges professional negligence against the

broker, those claims are subject to a six-year statute of limitations.

      For the above reasons, we reverse the court's order dismissing the

complaint with prejudice. We remand to the trial court for entry of an order

dismissing the complaint against Costello without prejudice.

      Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.




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