                                NOT FOR PUBLICATION WITHOUT THE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-0973-18T1

EDWARD HAMILTON and
CAROL HAMILTON, his wife,

          Plaintiffs,

v.

MORRIS SCHOOL DISTRICT,
FM GLOBAL, and AERCO
INTERNATIONAL,

          Defendants,

and

MORRIS SCHOOL DISTRICT,

          Defendant/Third-Party
          Plaintiff-Appellant,

v.

KCG, INC., and CITIZENS INSURANCE
COMPANY OF AMERICA,

     Third-Party Defendants-
     Respondents/Cross-Appellants.
____________________________________
            Submitted December 17, 2019 – Decided January 6, 2020

            Before Judges Fisher and Accurso.

            On appeal from the Superior Court of New Jersey, Law
            Division, Morris County, Docket No. L-1446-16.

            Methfessel & Werbel, attorneys for appellant (William
            Scott Bloom and James Victor Mazewski, on the
            briefs).

            Law Office of Terkowitz & Hermesmann, attorneys for
            respondent/cross-appellant KCG, Inc. (Jonathan S.
            Robinson, on the briefs).

            Donnelly Minter & Kelly LLC, attorneys for
            respondent/cross-appellant       Citizens     Insurance
            Company of America (David Morgan Blackwell, of
            counsel and on the briefs; Christin D. Fontanella, on the
            briefs).

PER CURIAM

      Plaintiff tripped and fell at a school and brought this suit against the

property owner – defendant Morris School District (the school district) – and

other parties not relevant here. At the time of the fall, plaintiff was apparently

performing duties for his employer KCG, Inc., which provided maintenance

services for the school district pursuant to a written contract. That contract

included an indemnification provision as well as KCG's promise to add the

school district as an insured on a liability policy issued by Citizens Insurance

Company of America. When, after plaintiff commenced this action, Citizens

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                                        2
refused the school district's tender of the defense, the school district filed a third -

party complaint seeking a defense and indemnification from both KCG and

Citizens.

      In March 2018, Citizens moved for summary judgment seeking dismissal

of the third-party complaint. By the end of May 2018, KCG and the school

district had also moved for summary judgment on the third-party complaint.

Before these motions could be heard, the case was sent to mandatory, non-

binding arbitration; by agreement, the indemnification dispute was not

arbitrated. The arbitrator "no-caused" plaintiff's claim, and when plaintiff failed

to timely file for a trial de novo, his adversaries moved to confirm the arbitration

award. The defense motion was granted in September 2018. At the conclusion

of the motion hearing, the school district's attorney inquired about the status of

the pending summary judgment motions. The judge responded that she thought

all other pending issues had been "disposed of."

      Soon after, counsel wrote to the judge seeking the calendaring of the

summary judgment motions. The motions, however, were neither relisted nor

argued; instead, the judge entered an order on September 25, 2018, that denied

all the summary judgment motions, finding they were mooted by the dismissal

of plaintiff's complaint.


                                                                               A-0973-18T1
                                           3
      The school district appeals, and KCG and Citizens cross-appeal. The

school district argues that the judge erred in declaring its motion moot and seeks

as well our holding that it is entitled to summary judgment. Citizens agrees that

the judge's mootness determination is a question to be decided but takes no

position; instead, Citizen argues the school district's claim for indemnification

is without merit. KCG argues that the judge "properly concluded that the

confirmation of the arbitration award disposed of all issues," but then

inconsistently claims it was entitled to summary judgment on the merits.

      We conclude that the school district's third-party action against KCG and

Citizens was not rendered moot by the dismissal of plaintiff's complaint, and we

remand for the judge's disposition of the three summary judgment motions.

Mootness arises when the decision sought "can have no practical effect o n the

existing controversy." Redd v. Bowman, 223 N.J. 87, 104 (2015) (quoting

Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App.

Div. 2011)). We agree with the school district that the disposition of plaintiff's

claim did not end the parties' indemnification dispute. To explain, we briefly

consider – but express no view of – the merits of the parties' summary judgment

motions.




                                                                          A-0973-18T1
                                        4
      In seeking summary judgment against KCG, the school district relied on

their contract's indemnification provision, which obligated KCG to "indemnify,

defend, and save harmless" the school district from all claims "which shall arise

from or result directly or indirectly from the work and/or materials supplied

under this contract and the performance by [KCG] under the contract or by a

party for whom [KCG] is liable." In such instances, KCG was obligated to

indemnify and save the school district harmless from all judgments and

recoveries, "including, but not limited to, attorneys fees." Even though the

disposition of plaintiff's claim against the school district has obviated the school

district's need for indemnification, there remains a colorable argument that

plaintiff's claim arose from KCG's performance of the contract and, because

KCG did not provide a defense, the school district was left to defend itself. If

the school district's interpretation of the contract's provisions is correct, it is

entitled to seek compensation for the injuries sustained as a result of KCG's

alleged breach.

      Although the school district's claim against Citizens is based on the terms

of a liability policy, while KCG's liability is based on its contract, the mootness

analysis is similar. Just as with the claim against KCG, Citizens' refusal to

defend the school district – an additional insured under the liability policy issued


                                                                            A-0973-18T1
                                         5
to KCG – had consequences not limited to Citizens' alleged obligation to pay

any judgment entered against the school district. Citizens allegedly agreed to

defend any claim falling within its insuring clauses, and the school district has

incurred the expense of defending itself. The school district also incurred the

cost of seeking to vindicate its alleged rights under the policy – yet

unadjudicated – to both a defense and indemnification.

      It is elementary that an insurer is obligated to provide its insured with a

defense against all actions covered by the policy. Hartford Acc. & Indemn. Co.

v. Aeta Life & Cas. Ins. Co., 98 N.J. 18, 22 (1984). That duty is triggered by

the mere filing of a complaint alleging a covered claim, Voorhees v. Preferred

Mut. Ins. Co., 128 N.J. 165, 173 (1992), and is unaffected by the plaintiff's

ultimate success or failure, even when the claim is found to be "groundless,

false, or fraudulent," Danek v. Hommer, 28 N.J. Super. 68, 77 (App. Div. 1953),

aff'd o.b., 15 N.J. 573 (1954); see also Abouzaid v. Mansard Gardens Assocs.,

LLC, 207 N.J. 67, 81 (2011). Whether a duty to defend has been triggered is

determined by placing the complaint "alongside the policy" so that the claimant's

allegations may be compared with the insuring provisions. The Ohio Cas. Ins.

Co. v. Flanagin, 44 N.J. 504, 512 (1965). If the claim falls within a risk insured

against, the duty to defend is triggered. Voorhees, 128 N.J. at 175, 180. When,


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                                        6
in invoking this test, the court determines that the reach or meaning of the policy

is ambiguous or uncertain, the court should construe the policy "liberally in

favor of the insured and strictly against the insurer." W9/PHC Real Estate LP

v. Farm Family Cas. Ins. Co., 407 N.J. Super. 177, 191 (App. Div. 2009); see

also Mazzilli v. Acc. & Cas. Ins. Co. of Winterthur, 35 N.J. 1, 8 (1961) (holding

that courts "are bound to protect the insured to the full extent that any fair

interpretation will allow"). And when the complaint "does not state facts with

sufficient definiteness to clearly bring the claim within or without" the policy,

that doubt too is resolved so as to trigger the duty to defend. Abouzaid, 207 N.J.

at 81 (quoting Robert R. Keeton & Alan L. Widiss, Insurance Law, A Guide to

Fundamental Principles, Legal Doctrines and Commercial Practices 1020-21

(1988) (footnotes omitted)). In this sense, it is often said that the duty to defend

is broader than the duty to indemnify. See Polarome Int'l, Inc. v. Greenwich Ins.

Co., 404 N.J. Super. 241, 272 (App. Div. 2008); Rosario ex rel. Rosario v.

Haywood, 351 N.J. Super. 521, 534 (App. Div. 2002); Robert W. Hayman, Inc.

v. Acme Carriers, Inc., 303 N.J. Super. 355, 357-58 (App. Div. 1997). So, even

though plaintiff's complaint was dismissed, if it is ultimately determined that the

claim fell within the policy's four corners, Citizen would be liable for the cost

to the school district in defending itself, Hebela v. Healthcare Ins. Co., 370 N.J.


                                                                            A-0973-18T1
                                         7
Super. 260, 274 (App. Div. 2004), and in seeking a defense and indemnification,

R. 4:42-9(a)(6). See also Occhifinto v. Olivo Constr. Co., LLC, 221 N.J. 443,

453 (2015).

      For these reasons, we conclude that the controversy that exists between

and among the school district, KCG and Citizens is not moot.

      We, lastly, decline the parties' invitation to determine whether any of them

are entitled to summary judgment. True, our review of a trial judge's disposition

of a summary judgment is de novo, Globe Motor Co. v. Igdalev, 225 N.J. 469,

479 (2016), but that doesn't mean we are required to do that which the trial judge

should have done in the first instance, Estate of Doerfler v. Fed. Ins. Co., 454

N.J. Super. 298, 302 (App. Div. 2018). We, therefore, reverse the order that

denied the parties' summary judgment motions on mootness grounds and remand

so the judge may schedule and rule on those motions. We, of course, remand

for all other purposes as well, since the disposition of the summary judgment

motions may leave unresolved issues between or among the remaining parties.

      Reversed and remanded. We do not retain jurisdiction.




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