(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: The Court wrote no full opinion in this case. Rather, the Court’s affirmance of the
judgment of the Appellate Division is based substantially on the reasons expressed in the
per curiam opinion below.)
Argued February 13, 2002 -- Decided May 21, 2002
PER CURIAM
The primary issue in this appeal is whether plaintiff was barred from recovering
lost profits in its Law Division action because arbitrators had arguably included such
relief in a prior award.
The dispute in this matter began as a breach of contract claim by
plaintiff, Di Maria Construction, Inc., against Commerce Bank after the latter terminated Di
Maria’s contract, claiming, in part, that Di Maria had failed to substantially complete
phase one of the contractual project by the required date. Di Maria sought
arbitration, primarily arguing that it completed the work within the required time, inclusive
of the extensions resulting from fifty-six change orders. The arbitrators awarded Di Maria
$205,270 for specified phases of the construction project and $49,650 for “damages suffered
by [Di Maria] related to all other contractual topics.” That award was confirmed
in the Superior Court and on appeal.
Following arbitration, Di Maria sued defendants, Interarch, Shirley Hill, and Raymond A. Klumb
(collectively “Interarch”), architects and agents for Commerce Bank, seeking compensation for tortious interference
with a business relationship and interference with its prospective economic advantage. More specifically,
Di Maria claimed that Interarch interfered by publishing a false certification stating that
Di Maria had failed to complete phase one by the completion date. Interarch
argued that Di Maria was barred from recovering lost profits because the arbitrators
had included such relief in their prior award; that Interarch, as agent for
Commerce bank, was a party to the contractual relationship and therefore could not
be liable for tortious interference with that relationship; and, that there was insufficient
evidence for the jury to conclude that Interarch acted with malice. The jury
found in Di Maria’s favor, awarding both compensatory and punitive damages. Interarch appealed
The Appellate Division held that (1) Interarch’s actions fell outside of its scope
of employment and therefore outside of its party-relationship with Commerce Bank; (2) Di
Maria’s arbitration award did not include damages for future lost profits and Di
Maria was therefore free to pursue that element of damages against Interarch; and
(3) the jury reasonably concluded that Interarch acted with malice, intentionally and without
justification, when it published the false certification. For these and other reasons, the
Appellate Division affirmed the judgment below.
HELD: The judgment of the Appellate Division is AFFIRMED substantially for the reasons
expressed in that court’s opinion. There was no overlap between the arbitration award
and the judgment, and Di Maria is entitled to both.
1. The Court urges arbitrators to describe with greater specificity the claims that
they intend to cover or include in their awards, as this would reduce
the likelihood of unnecessary litigation. (P. 3)
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, and ZAZZALI join in
this opinion. JUSTICE STEIN did not participate.
SUPREME COURT OF NEW JERSEY
A-
21 September Term 2001
DI MARIA CONSTRUCTION, INC.,
Plaintiff-Respondent,
v.
INTERARCH, SHIRLEY HILL and RAYMOND A. KLUMB,
Defendants-Appellants.
Argued February 13, 2002 – Decided May 21, 2002
On certification to the Superior Court, Appellate Division.
Joel H. Sterns argued the cause for appellants (Sterns & Weinroth, attorneys; Mark
D. Schorr and Mitchell A. Livingston, on the briefs).
Ellis I. Medoway argued the cause for respondent (Archer & Greiner, attorneys; Mr.
Medoway and Arthur H. Jones, Jr., on the brief).
PER CURIAM.
This case arises out of a construction contract between Commerce Bank, N.A. (Commerce)
and Di Maria Construction, Inc. (DiMaria). DiMaria claimed that Commerce had breached the
contract. A panel of arbitrators from the American Arbitration Association (AAA) found in
DiMaria’s favor. Accordingly, the arbitrators ordered Commerce to pay DiMaria an amount relating
to specified phases of the construction project, and to pay a separate amount
more generally reflecting “damages suffered by [DiMaria] related to all other contractual topics.”
That award was confirmed in the Law Division and affirmed on appeal. Commerce
Bank v. DiMaria Constr., Inc.,
300 N.J. Super. 9, 13, 21 (App. Div.),
certif. denied,
151 N.J. 73 (1997), cert. denied,
522 U.S. 1116,
118 S.
Ct. 1053,
140 L. Ed.2d 116 (1998).
Following the arbitrators’ award, DiMaria filed this action against Interarch, Shirley Hill, and
Raymond A. Klumb (defendants) in the Law Division, alleging tortious interference with the
prior construction contract and interference with its prospective economic advantage. At the time
of the contract, defendants acted as agents of Commerce. The jury found in
DiMaria’s favor, awarding both compensatory and punitive damages.
We granted defendants’ petition for certification,
170 N.J. 86 (2001), to review, among
other things, their contention that DiMaria was barred from recovering lost profits in
its Law Division action because the arbitrators had included such relief in their
prior award. The Appellate Division rejected that contention, concluding that “there was no
overlap between the arbitration award and the judgment, and DiMaria is entitled to
both.” Di Maria Constr., Inc. v. Interarch, ___ N.J. Super. ___, ___ (2001).
The panel resolved all other issues raised by defendants.
We affirm the judgment of the Appellate Division substantially for the reasons expressed
in that court’s thorough and persuasive opinion. We add only the following.
If DiMaria’s prior arbitration award had described more fully the “other contractual topics”
on which it founded relief, the present dispute might have been avoided. We
thus urge arbitrators to describe with greater specificity the claims that they intend
to cover or include in their awards. Such specificity would reduce the likelihood
of unnecessary litigation and, in our view, would not trespass on the internal
rules of the AAA. See, e.g., American Arbitration Association, Construction Industry Dispute Resolution
Procedures, R-45 (revised and in effect on July 1, 2001), available at http://www.adr.org/
(last visited Apr. 10, 2002) (“The arbitrator shall provide a concise, written breakdown
of the award.”)
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA and ZAZZALI join in
this opinion. JUSTICE STEIN did not participate.
SUPREME COURT OF NEW JERSEY
NO. A-21 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
DI MARIA CONSTRUCTION, INC.,
Plaintiff-Respondent,
v.
INTERARCH, SHIRLEY HILL and
RAYMOND A. KLUMB,
Defendants-Appellants.
DECIDED May 21, 2002
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST