                                NOT FOR PUBLICATION WITHOUT THE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-2991-17T4

ESTATE OF BORO M.
ATANASOSKI, LILLIAN E.
CARTER, his wife, individually,
and as Administrator and Administrator
Ad Prosequendum of the ESTATE OF
BORO M. ATANASOSKI,

          Plaintiffs-Appellants,

v.

ARCURI AGENCY, INC., ARCURI
AGENCY, PETER M. ARCURI, JR.,
ARCHER A. ASSOCIATES, INC.,
and ROBERT LANCIOTTI,

          Defendants-Respondents,

and

MARY E. ALLEN,

      Defendant.
________________________________

                    Argued February 14, 2019 – Decided May 6, 2019

                    Before Judges Simonelli, O'Connor and Whipple.
              On appeal from Superior Court of New Jersey, Law
              Division, Bergen County, Docket No. L-4821-17.

              Antonio D. Arthurs argued the cause for appellants
              (Law Offices of Jeffrey S. Hasson, PC, attorneys;
              Antonio D. Arthurs, on the brief).

              Audrey L. Shields argued the cause for respondents
              Arcuri Agency, Inc., Arcuri Agency, and Peter M.
              Arcuri, Jr. (Golden, Rothschild, Spagnola, Lundell,
              Boylan & Garubo, PC, attorneys; Audrey L. Shields, of
              counsel and on the brief; Carolynn A. Mulder, on the
              brief).

              Debra M. Krebs argued the cause for respondents
              Archer A. Associates Inc. and Robert Lanciotti (Keidel,
              Weldon & Cunningham, LLP, attorneys; Debra M.
              Krebs, on the brief).

PER CURIAM

        In this insurance broker malpractice matter, plaintiffs Estate of Boro M.

Atanasoski (Estate) and Lillian E. Carter 1 appeal from the January 29, 2018 Law

Division orders granting the motions of defendants Arcuri Agency, Inc, Acuri

Agency, Peter M. Arcuri, Jr. (collectively Arcuri), and Archer A. Associates,

Inc. and Robert Lanciotti (collectively Archer), to dismiss the complaint with

prejudice pursuant to Rule 4:6-2(e). We affirm.




1
    We shall sometimes collectively refer to the Estate and Carter as plaintiff.
                                                                            A-2991-17T4
                                          2
                                       I.

      European Bread, Inc., d/b/a Schripps European Bread (Schripps) is in the

bread delivery business.     Arcuri procured a commercial vehicle liability

insurance policy for Schripps with Allstate New Jersey Insurance Company

(Allstate), which had a $1 million per accident limit.       Archer procured a

commercial    excess and     umbrella liability policy     for Schripps       with

XL/Greenwich Insurance Company (XL) in the amount of $5 million. The XL

policy did not provide excess coverage for commercial vehicle liability.

      On July 26, 2014, Boro M. Atanasoski (decedent) was struck and killed

by a vehicle owned by Schripps and operated by its employee, Joseph

Eizaguirre. On August 20, 2014, Carter, the decedent's wife, filed a complaint

individually and as administrator ad prosequendum of the Estate against

Schripps and Eizaguirre for wrongful death and survivorship.

      On July 18, 2017, plaintiff filed a second complaint to include

professional negligence claims against Arcuri and Archer.2 Plaintiff alleged that

Arcuri failed to advise Schripps of the need for higher primary policy limits

and/or excess insurance above the $1 million Arcuri procured with Allstate.


2
  Prior thereto, on July 5, 2016, Schripps filed a complaint against Archer for
insurance broker malpractice, and, thereafter, Archer filed a third-party
complaint against Arcuri for contribution and negligence.
                                                                           A-2991-17T4
                                       3
Plaintiff alleged that Archer procured a policy that specifically excluded

commercial vehicle liability coverage or any claims arising from the use of a

motor vehicle despite the fact that Schripps' bread delivery business involved

the substantial use of commercial vehicles. The court severed these claims,

dismissing the claims against Arcuri and Archer without prejudice and allowing

the underlying action to proceed against Schripps and Eizaguirre. The court

permitted plaintiff to proceed against the brokers under a separate docket

number.

      The underlying action settled for $940,000, paid by Allstate. Pursuant to

a settlement agreement dated July 25, 2017, plaintiff released Schripps and

Eizaguirre from any further claims and specifically agreed not to seek any

contribution from them beyond the settlement amount.             The settlement

agreement contained "[c]ooperation with [c]ontinued [l]itigation," which

required Schripps and Eizaguirre "to cooperate with the ongoing litigation, in

pursuing claims against the insurance agents or brokers . . . and by providing

documents and testifying at deposition or trial." Notably, the parties agreed that

the settlement "shall not be construed as an admission of liability on the part of

any party to this [a]greement." The settlement was not reduced to a judgment.

The court thereafter dismissed the underlying action with prejudice.


                                                                          A-2991-17T4
                                        4
      On July 18, 2017, immediately prior to the execution of the settlement

agreement, plaintiff filed a new complaint asserting insurance broker

malpractice claims against Arcuri and Archer. Plaintiff did not join Schripps

and Eizaguirre as defendants. Thereafter, Arcuri and Archer each filed a motion

to dismiss pursuant to Rule 4:6-2(e).

      In granting the motions, the motion judge cited Carter Lincoln-Mercury,

Inc., Leasing Div. v. EMAR Group, Inc., 135 N.J. 182 (1994), Werrmann v.

Aratusa, Ltd., 266 N.J. Super. 471 (App. Div. 1993), Manukas v. Am. Ins. Co.,

98 N.J. Super. 522 (App. Div. 1968), and Eschle v. Eastern Freight Ways, Inc.,

128 N.J. Super. 299 (Law Div. 1974), and determined there must be a judgment

against the underlying tortfeasors in order to determine if plaintiff's claim was

worth in excess of the available $1 million primary Allstate coverage. The judge

found there could be no judgment in this case against Schripps and Eizaguirre

because plaintiff did not name them as defendants in this matter and settled her

claims against them, relinquishing her right to sue them. The judge concluded:

            Only if such . . . judgment is rendered can the [c]ourt
            determine if Schripps/Eizaguirre sustained a loss.
            Plaintiff's subjective belief that her claim exceeds
            $1[million] is not sufficient. A jury may not believe
            plaintiff's proffered damage experts as to the value of
            the alleged loss suffered by the [p]laintiff.

            [(Citation omitted).]

                                                                         A-2991-17T4
                                        5
      The judge next distinguished Deblon v. Beaton, 103 N.J. Super. 345 (Law.

Div. 1968), on which plaintiff relied, noting that Schripps and Eizaguirre had no

obligation to help defend any valuation trial, but rather, were obligated to help

plaintiff pursue her claims against the brokers. The court further noted that

Schripps did not request more than $1 million in commercial auto liability

coverage and Arcuri had no duty to procure more than the amount requested.

      Regarding Archer, the judge found that even if the XL policy applied to

Schripps's commercial vehicles, the excess coverage under the policy would not

have been exposed because plaintiff settled within Allstate's primary policy for

$1 million. The judge concluded that even if Archer was negligent in not

procuring commercial auto liability excess coverage, this caused no damage or

financial loss to Schripps related to plaintiff's wrongful death/survivorship

claims.

      On appeal, plaintiff contends the judge erred in dismissing this matter with

prejudice because she asserted a valid cause of action against Arcuri and Archer.

Relying primarily on Werrmann and Deblon, plaintiff argues the brokers owed

a duty to third parties and she presented facts establishing a breach of duty,




                                                                          A-2991-17T4
                                        6
proximate causation, and damages. Plaintiff did not address Manukas and

Eschle.3

      Our review of a dismissal for failure to state a claim pursuant to Rule 4:6-

2(e) is de novo, following the same standard as the trial court. Smerling v.

Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App Div. 2006). Like the trial

court, we must search the complaint "in depth and with liberality to determine

if there is any 'cause of action [] "suggested" by the facts.'" State v. Cherry Hill

Mitsubishi, 439 N.J. Super. 462, 467 (App. Div. 2015) (alteration in original)

(quoting Printing-Mart Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746

(1989)). The inquiry is limited to "examining the legal sufficiency of the facts

alleged on the face of the complaint." Ibid. (quoting Printing-Mart Morristown,

116 N.J. at 746). "Dismissal is the appropriate remedy where the pleading does

not establish a colorable claim and discovery would not develop one" Ibid.

Applying these standards, we discern no reason to reverse.

      An insurance broker owes a duty to the insured to act with reasonable skill

and diligence in performing the services of a broker. Carter Lincoln-Mercury,


3
  Although Eschle is a trial court opinion that is not binding on us, S & R Assocs.
v. Lynn Realty, 338 N.J. Super. 350, 355 (App. Div. 2001), our Supreme Court
cited it with approval in Carter-Lincoln Mercury, 135 N.J. at 189, as did this
court in several published opinions, including Werrmann, 266 N.J. Super. at
474.
                                                                            A-2991-17T4
                                         7
135 N.J. at 189. An insured can establish a prima facie case of negligence

against an insurance broker if: (1) the broker neglects to procure the insurance;

(2) the broker secures a policy that is either void or materially deficient; or (3)

the policy does not provide the coverage the broker undertook to supply.

President v. Jenkins, 180 N.J. 550, 569 (2004). However, "an insurance agent

ha[s] no duty to advise an insured to consider higher amounts of . . . insurance."

Carter Lincoln-Mercury, 135 N.J. at 190. "To succeed in an action against an

insurance broker, the plaintiff must prove that in addition to being negligent, the

broker's negligence was a proximate cause of the loss." Harbor Commuter Serv.,

Inc. v. Frenkel & Co., 401 N.J. Super. 354, 368 (App. Div. 2008). The plaintiff

must also prove damages. Robinson v. Janay, 105 N.J. Super. 585, 591 (App.

Div. 1969).

      Members of the general public who are injured as a result of an insured's

negligence may bring a direct action against the insured's insurance broker for

negligence. Werrmann, 266 N.J. Super. at 474. That extension

              does little more than synthesize two established rules in
              New Jersey law. First, that an insurance agent is liable
              to the potential insured for the failure to obtain such
              coverage, and second, that an injured party acquires an
              interest in an insurance policy which may be available
              to cover the accident. If the agent stands in the shoes
              of the company which would have issued the policy
              (had he not been negligent or breached his contract),

                                                                           A-2991-17T4
                                         8
             there is no reason to deny the direct action against him,
             combining these two lines of cases. To hold to the
             contrary would be to insulate the agent from the
             consequences of his acts, and leave the public without
             adequate protection.

             [Id. at 475 (quoting Eschle, 128 N.J. Super. at 306).]

      However, it is foundational that "an injured person possesses no direct

cause of action against the insurer of the tortfeasor prior to recovery of judgment

against the latter . . . ." Manukas, 98 N.J. Super. at 524; see also Kabinski v.

Emp'rs' Liab. Assur. Corp., 123 N.J.L. 377, 379 (1939) ("injured parties have no

rights under the policy until there is an unsatisfied judgment against the

assured"). An injured person may not proceed directly against the underlying

tortfeasor's insurer

             until [the injured person] first establishes the
             [underlying tortfeasor's] negligence and the quantum of
             damages in an action against the [underlying tortfeasor]
             or to which the [underlying tortfeasor] is a party.
             Plaintiff could have included a declaratory judgment
             action against [the insurer] in the action against the
             [underlying tortfeasor] or instituted a separate
             declaratory judgment action joining the [underlying
             tortfeasor] as a party, but [the injured person] cannot
             maintain the present action [against the insurer].

             [Manukas, 98 N.J. Super. at 525 (emphasis added).]

This principal applies equally to claims against an insurance agent or broker.

See Eschle, 128 N.J. Super. at 306 (holding that "defendant insurance agent will

                                                                           A-2991-17T4
                                        9
not be liable unless it is first shown that the claim has been proven against the

[underlying tortfeasor] and also that the policy obtained did not afford the

requested coverage").

      Plaintiff essentially argues that Arcuri and Archer owed a duty to her as

an injured member of the public and breached that duty by not obtaining

appropriate coverage or advising Schripps of the need for excess commercial

vehicle liability coverage, leaving her with inadequate protection for the

damages resulting from the fatal accident. Plaintiff posits she had standing to

bring a direct action against the brokers absent both a judgment against the

underlying tortfeasors and proof of a sufficient quantum of damages, and the

settlement was not a waiver of her right to bring a direct action.          These

arguments, however, are based on plaintiff's misinterpretation of case law and

failure to recognize critical distinctions.

      For example, plaintiff relies on Werrmann for the principle that an injured

plaintiff is permitted to sustain a direct negligence action against the broker,

asserting the broker owed her a duty, and breached that duty. Werrmann, 266

N.J. Super. at 476. However, plaintiff ignores the fact that the direct action

against the broker, which the trial court dismissed, was reinstated on appeal after

the plaintiff obtained a default judgment in the amount of $85,000 against the


                                                                           A-2991-17T4
                                        10
underlying tortfeasor. Id. at 473. Thus, the default judgment she obtained

against the underlying tortfeasor was proof of the underlying tortfeasor's

negligence. We found that "after obtaining judgment against [the underlying

tortfeasor], plaintiff could have obtained an assignment from [the underlying

tortfeasor] of [the underlying tortfeasor's] broker's-negligence claim against [the

broker], and pursued that claim as an assignee." Id. at 476.

      Moreover, the plaintiff in Werrmann alleged the broker was negligent in

failing to renew the underlying tortfeasor's general liability policy. Id. at 473.

Because there was no insurance policy and thus, no available coverage, the

damages the judgment established were necessarily greater than the available

coverage, thus proving the quantum of damages. Ibid. We never suggested that

the plaintiff could proceed with a direct action against the broker without first

proving the underlying tortfeasor's negligence and that the damages exceeded

the available insurance coverage.       Nor does Werrmann support plaintiff's

attempt to establish those foundational proofs by asserting the negligence of the

non-party underlying tortfeasors in this action. 4


4
  "Judgment or orders normally do not bind non-parties." N. Haledon Fire Co.
1 v. Borough of N. Haledon, 425 N.J. Super. 615, 628 (App. Div. 2012) (quoting
In re Application of Mallon, 232 N.J. Super. 249, 254 n.2 (App. Div. 1989)).
This action does not come within any of the limited exceptions to that principal.


                                                                           A-2991-17T4
                                       11
      Our holding in Werrmann is rooted in the trial court's holding in Eschle

that a person injured in a motor vehicle accident may bring a direct action against

the insurance agent or broker. Id. at 474-75 (citing Eschle, 128 N.J. Super. at

306). However, the Eschle explicitlt stated that there must be a trial where

claims are brought against the alleged tortfeasor and insurance broker in the

same action, stating "it should be no problem for the court to insure that

defendant insurance agent will not be liable unless it is first shown that the claim

has been proven against the [underlying tortfeasor] and also that the policy

obtained did not afford the requested coverage." Eschle, 128 N.J. Super. at 306.

      Here, the settlement agreement confirms that Schripps and Eizaguirre

never admitted liability, and there was no judgment entered against them. Thus,

plaintiff failed to establish the underlying tortfeasors' negligence and the

quantum of damages in the underlying action. Schriffs's bare assertion that

Arcuri and Archer were negligent in failing to obtain adequate commercial

vehicle liability primary and excess coverage for it is insufficient to overcome

these deficiencies.   Without a judgment against the underlying tortfeasors

establishing their negligence and the quantum of damages, plaintiff cannot




See Morris Cty. Fair Hous. Council v. Boonton Twp., 197 N.J. Super. 359, 364-
65 (Law Div. 1984).
                                                                            A-2991-17T4
                                        12
pursue a direct action against Arcuri and Archer. Manukas, 98 N.J. Super. at

524.

       Plaintiff's reliance on Deblon is also misplaced. There, the widow of a

man killed in an automobile accident brought a direct action against the driver's

automobile insurance carrier, Jersey Insurance Company of New York of the

Pacific of New York Group (Jersey), notwithstanding a settlement agreement

between the plaintiff, the driver, the vehicle owner, and the owner's insurance

carrier, Allstate.5 Deblon, 103 N.J. Super. at 347. However, unlike here, the

settlement agreement in Deblon did not release the owner and driver from all

liability; it released then only to the extent of their personal assets and their

Allstate insurance coverage. Id. at 439. The plaintiff expressly reserved the

right to proceed against Jersey and the owner and driver as named insureds under

the Jersey policy, and named the owner and driver as defendants in the plaintiff's

lawsuit against Jersey, thus exposing them to a judgment beyond the Allstate

coverage. Id. at 347-48. The court determined that a jury verdict of negligence

against the underlying tortfeasors and damages in excess of the primary

coverage was required in order to proceed against Jersey. Id. at 351.


5
  The owner's Allstate policy provided insurance in the amount of $50,000 and
the driver's Jersey policy provided insurance in the amount of $10,000. The
matter settled within the Allstate policy limits for $46,500. Id. at 347.
                                                                          A-2991-17T4
                                       13
      Even setting aside the fact that Deblon was an action against an insurance

carrier and not an insurance broker, there are other distinguishing facts. For

example, the court based its decision, in part, on Jersey's ability to rely on the

cooperation clause in its insurance policy to compel the owner and driver to

vigorously defend against the plaintiff's action. Id. at 352. Jersey had argued

that public policy militated against permitting a plaintiff to settle with the

tortfeasors and primary insurance carrier without releasing the excess carrier,

because same would encourage collusion between claimants and insureds. Ibid.

The settlement agreement here contains a cooperation clause, which requires

Schripps and Eizaguirre to assist plaintiff in prosecuting her lawsuit against the

brokers. Thus, the collusion protected against in Deblon is actualized here.

      Regarding the claim against Archer, there are additional grounds

distinguishing Deblon. Although the plaintiff in Deblon received less than the

maximum available from the primary polict under the settlement agreement, she

was nevertheless able to proceed against Jersey because its policy was not a true

"excess" policy. Id. at 347-48. Rather, the policy was a primary policy that

became "excess insurance" because it contained an "other insurance" clause.

Ibid.; see also CNA Ins. Co. v. Selective Ins. Co., 354 N.J. Super. 369, 379-81

(App. Div. 2002) (explaining the difference "between a primary insurance policy


                                                                          A-2991-17T4
                                       14
containing an excess 'other insurance' clause, and a true excess policy"). Thus,

settling below the maximum available under the Allstate policy did not preclude

the plaintiff's direct claim against Jersey.

      There was only one primary policy in this case, the Allstate policy. Even

if Archer had procured excess commercial vehicle liability coverage, that

coverage would be triggered only upon exhaustion of the primary Allstate

coverage. Because the matter settled within the primary policy limits, plaintiff

had no claim against Archer or XL.

      The notion that a plaintiff could directly sue and recover from an insurer

or insurance broker without first demonstrating the insured's negligence and

quantum of damages would, as feared by Jersey in Deblon, create legal

circumstances ripe for abuse. As plaintiff here has not received and cannot

receive a judgment against Schripps and Eizaguirre, and has not demonstrated

and cannot demonstrate their negligence and a quantum of damages, plaintiff

has no right to bring a direct action against Arcuri and Archer.

      We find no merit in plaintiff's third-party beneficiary argument. "To

determine whether a person qualifies as a third-party beneficiary, the test is

'whether the contracting parties intended that a third party should receive a

benefit which might be enforced in the courts . . . .'" Werrmann, 266 N.J. Super.


                                                                         A-2991-17T4
                                        15
at 476 (quoting Rieder Cmtys., Inc. v. N. Brunswick Twp., 227 N.J. Super. 214,

222 (App. Div. 1988)).

      In Werrmann, 266 N.J. Super. at 476, we observed that in addition to a

theory based on duty, a plaintiff could similarly proceed against the insurance

broker under the theory that the injured party was a third-party beneficiary of

the broker's agreement, with the insured to procure insurance. However, unlike

here, the plaintiff in Werrmann was awarded beneficiary status because she

possessed an outstanding default judgment against the underlying tortfeasor and,

further, the underlying tortfeasor was insolvent.    Id. at 475-76. As such, the

plaintiff was left without any recompense. Ibid. We recognized that "the policy

protects the assets of the insured; of equal importance, it is intended to provide

a source of recovery for an innocent injured party who, because of the

insolvency of the insured, would otherwise have no means of redress." Id. at

478. Thus, we permitted a direct action by the plaintiff against the allegedly

negligent insurance broker.

      Then-Judge Stern, in his concurring opinion, expressly intended future

readers to recognize "what [he] believe[d] to be the limited holding based on the

facts and circumstances of the case. [He] d[id] not want the reader to conclude

[this court] ha[d] expanded New Jersey law to make the insurance broker of a


                                                                          A-2991-17T4
                                       16
business entity where an accident occurred responsible for injuries whenever

there is inadequate coverage." Id. at 478 (Stern, J., concurring).

      For example, in Walker v. Atlantic Chrysler Plymouth, Inc., 216 N.J.

Super. 255, 261-62 (App. Div. 1987), we granted third-party beneficiary status

to an employee that was an intended beneficiary of his employer's automobile

insurance policy. In distinguishing other case law, we stated "[w]e are not

dealing with a situation where there is no relationship or privity between the

insured and the injured party seeking to recover. Plaintiff . . . was an employee

and an obvious intended beneficiary of the insurance coverage." Id. at 261-62.

      In Carter Lincoln-Mercury, 135 N.J. at 187, the plaintiff was deemed a

third-party beneficiary because it was a loss-payee designated by a specific

endorsement on the insurance policy procured by the broker. Id. at 187. Further,

the plaintiff possessed a default judgment against the insured. Id. at 188.

      Unlike in Walker and in Carter Lincoln-Mercury, plaintiff is not an

intended beneficiary of either insurance policy. She, thus, lacks standing to

assert a direct claim against Arcuri and Archer as a third-party beneficiary.

Further, as recognized in Hanover Ins. Co., plaintiff has not been left without

redress, and therefore the public policy concern that guided the decision in

Werrmann is not present here.


                                                                         A-2991-17T4
                                      17
      Simply put, plaintiff has failed to substantiate any claim that she should

be afforded third-party beneficiary status sufficient to bring a direct claim

against either Arcuri or Archer. Plaintiff is not able to use the holding in

Werrmann, unique to the facts of that case, to circumvent the settlement of the

underlying claims.

      We briefly address plaintiff's argument that the judge erred in dismissing

her breach of contract claim. Plaintiff has insufficiently alleged a breach of

contract claim; she did not demonstrate the existence of a valid contract, that the

non-breaching party adequately performed under the contract, and that

defendants' breach caused a loss. See Globe Motor Co. v. Igdalev, 225 N.J. 469,

482 (2016). Ignoring for a moment that plaintiff has not demonstrated and

cannot demonstrate that Schripps suffered a loss as a result of Archer's alleged

breach of the alleged contract, or that Arcuri failed to provide the requested level

of coverage, plaintiff has still failed to plead with specificity the existence of

any contract.

      In fact, the only time plaintiff even mentions the existence of a contract

between Arcuri and Schripps and Archer and Schripps are in count six and count

seven of the complaint, where she states that the broker defendants are "liable

to [p]laintiffs as they . . . breached contract with [Schripps]." Plaintiff has failed


                                                                              A-2991-17T4
                                         18
to allege even "the basic elements of a contract – offer, acceptance, and

consideration . . . [,]" to substantiate the existence of any contract. Smith v.

SBC Commc'ns Inc., 178 N.J. 265, 283 (2004).

      As such, dismissal of plaintiff's breach of contract claim with prejudice

was warranted. The complaint has simply not pled facts that even suggest the

existence of a contract, let alone a breach of contract claim. See Printing Mart-

Morristown, 116 N.J. at 746.

      Lastly, plaintiff argues that the order severing the claims with leave to

refile against Arcuri and Archer under a separate docket number conferred

standing on her to pursue direct claims against the brokers. In making this

argument, plaintiff merely reiterates her contention that she does not need to

possess a judgment of negligence and a sufficient quantum of damages to

proceed against the brokers. She provides no authority that supports or lends

any credence to this misguided premise.

      However, at oral argument on the motions to dismiss, plaintiff's counsel

admitted that in granting severance, the judge did not rule on the merits of the

claims against the brokers.    In fact, per Archer's counsel, the judge "very

strenuously questioned [plaintiff's] standing to bring a clai m against the

brokers[,]" "refused to rule on it[,]" and ultimately "decided to sever it." The


                                                                         A-2991-17T4
                                      19
severance order thus cannot be viewed as an endorsement of plaintiff's claims

against the brokers, merely because the order included the phrase "and shall

proceed under a separate docket number." The fact is that plaintiff could have

proceeded against the brokers in a distinct action, had she not settled the claims

against the underlying tortfeasors in the manner that she did.

      Affirmed.




                                                                          A-2991-17T4
                                       20
