NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2538-23
MARC FEDER DMD, PC and MARC FEDER,
Plaintiffs-Appellants,
v.
NEW JERSEY MANUFACTURERS INSURANCE COMPANY,
Defendant-Respondent. ___________________________
Argued April 7, 2025 – Decided April 21, 2025
Before Judges Sabatino, Jacobs, and Jablonski.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1485-22.
Jeffrey A. Bronster argued the cause for appellants.
Daniel J. Pomeroy argued the cause for respondent (Pomeroy, Heller & Ley, DiGasbarro & Noonan, LLC, attorneys; Daniel J. Pomeroy and Karen E. Heller, on the brief).
PER CURIAM This declaratory judgment action revolves around whether an insurance
company complied with the statutory procedures for cancelling an automobile
insurance policy. Plaintiff Mark Feder 1 failed to pay his overdue insurance
premium of $378.00 to defendant New Jersey Manufacturers Insurance
Company ("NJM"), so NJM took steps to cancel his policy. The steps are
prescribed in N.J.S.A. 17:29C-10, which has two distinct requirements in
subsections (a) and (b):
No written notice of cancellation or of intention not to renew sent by an insurer to an insured in accordance with the provisions of an automobile insurance policy shall be effective unless
a. (1) it is sent by certified mail or (2) at the time of the mailing of said notice, by regular mail, the insurer has obtained from the Post Office Department a date stamped proof of mailing showing the name and address of the insured, and
b. the insurer has retained a duplicate copy of the mailed notice which is certified to be a true copy.
[Emphasis added.]
After considering the documentation supplied by NJM and plaintiff's
arguments in opposition, the trial court granted NJM summary judgment. Based
1 For simplicity, we will refer to Mark Feder as "plaintiff" in this opinion even though his professional business, Mark Feder DMD, PC, is named as a co- plaintiff. A-2538-23 2 on the face of the documents before it, which were not illuminated by any NJM
testimony at a deposition or a plenary hearing, the court concluded NJM
complied with both subsections (a) and (b) of the statute in cancelling plaintiff's
policy. Plaintiff appeals, contending NJM's submissions were inadequate to
prove its compliance.
For the reasons that follow, we affirm the trial court's ruling in part and
vacate it in part. Specifically, we concur with the court's determination that, as
a matter of the law, the record sufficed to establish NJM's compliance with
subsection (a) of N.J.S.A. 17:29C-10 concerning proof of its mailing to plaintiff.
However, we vacate summary judgment as to subsection (b), which was
construed by our opinion in Celino v. General Accident Insurance, 211 N.J.
Super. 538, 543 (App. Div. 1986) to require the insurer prove that, at the time
of the mailing, it "contemporaneously" certified that it was retaining a "true"
duplicate copy of the cancellation notice.
As we elaborate, infra, the cancellation notice and other documents
supplied in the motion record presently lack sufficient information to establish
who certified those crucial facts under subsection (b) and when they were so
certified. The alleged duplicate of the cancellation notice also contains various
unexplained handwritten notations with several dates, which may bear upon the
A-2538-23 3 analysis.
When viewed in a light most favorable to plaintiff in this summary
judgment posture, the present record lacks sufficient evidence of personal
knowledge of subsection (b) compliance with respect to plaintiff's cancellation
notice. See N.J.R.E. 602 and Rule 1:4-4. Nor, alternatively, does the present
record substantiate conclusively NJM's routine practices concerning its
subsection (b) compliance. See N.J.R.E. 406. In sum, there are genuine issues
of material fact that are not capable of resolution on the existing record.
Given that Celino and other case law insists on insurers' strict compliance
with the requirements of N.J.S.A. 17:29C-10, and because the record here must
be developed more fully and clearly to adjudicate NJM's compliance as to
subsection (b) of that statute, we vacate summary judgment and remand this
matter to the trial court for further proceedings.
I.
To provide context to our discussion, we first provide a brief overview of
the statutory scheme and the public policies that underlie N.J.S.A. 17:29C-10.
The statute has been amended at various times until its present form.
The laws of our state have long required the owners of private passenger
vehicles to maintain coverage from an automobile insurance company. N.J.S.A.
A-2538-23 4 39:6A-3. As a matter of public policy, such coverage is important for the
protection of drivers and their passengers who use our roadways, as well as for
pedestrians and the occupants of other vehicles who may be injured by the
insured driver's conduct. See, e.g., Rutgers Cas. Ins. Co. v. LaCroix, 194 N.J.
515, 523-24 (2008).
Given those public policy concerns, the Legislature and our case law have
imposed strict requirements upon automobile insurers to provide reasonable
notice to vehicle owners before cancelling their coverage for non-payment. The
cancellation of coverage can have severe consequences. Our laws therefore
strive to assure that motorists are provided with fair warning that their policies
are about to be cancelled, and a grace period to make delinquent payments in
order to maintain coverage. See N.J.S.A. 17:29C-8. At the same time, the
Legislature and our courts have recognized that the procedures for auto insurers
to cancel coverage should not be unduly burdensome.
Before it was amended in 1980, the cancellation statute provided that,
"[p]roof of mailing of notice of cancellation to the named insured at the address
shown in the policy, shall be sufficient proof of notice." N.J.S.A. 17:29C-10
(amended 1980). In Weathers v. Hartford Ins. Grp., 77 N.J. 228 (1978), the
Supreme Court construed that language to signify that "cancellation may be
A-2538-23 5 effective whether or not the insured has actually received the notice of
cancellation since proof of mailing, not proof of receipt, is the determinative
factor." Id. at 234. Nonetheless, the Court concluded the insurer's proof of its
mailing of the cancellation notice to the insured in that case, while "sufficient to
go to the fact-finder on the issue . . . did not compel a finding of mailing as a
matter of law." Id. at 235. Among other things, the Court noted that the insurer's
witness "conceded it was possible that a given envelope might not contain a
notice to the person purportedly addressed." Ibid.
After the Court's decision in Weathers, the Legislature amended N.J.S.A.
17:29C-10 in 1980 to provide clearer guidelines for appropriately evidencing
"proof of mailing" by requiring at least a date-stamped proof of mailing and—
as is pertinent to our decision on this appeal—a certified copy of the mailed
letter. See S. Lab., Indus. and Pros. Comm. Statement to Assemb. No. 1418
L.1980, c. 165 (Apr. 14, 1980) ("This bill is designed to make the proof of
mailing requirement more explicit.").
Case law has since clarified what evidence is sufficient to satisfy each of
the two subsections of N.J.S.A. 17:29C-10. With respect to subsection (a),
which concerns "the manner of delivering the written [cancellation] notice to
the insured," we observed in Celino that the provision "can be satisfied either
A-2538-23 6 by certified mailing or by the [insurer's] obtaining of a date-stamped certificate
of mailing from the post office." 211 N.J. Super. at 541 (emphasis added).
We elaborated upon subsection (a)'s requirements in Hodges v.
Pennsylvania National Insurance Co., 260 N.J. Super. 217 (App. Div. 1992), in
which we concluded that a "master list" of cancellation letters that an insurer
supplied to the post office, coupled with a dated postal stamp on that master list,
were insufficient to comply with subsection (a). Id. at 227. We held that the
insurer needed to present either an official "certificate of mailing" issued by the
post office to show that each individual letter was actually mailed, or,
alternatively, "extrinsic evidence" that demonstrated that fact. Ibid. Because
the insurer's "present proofs" were insufficient to demonstrate compliance with
the statute, we reversed summary judgment in favor of the insurer and remanded
for further proceedings. Ibid.
By contrast with the inconclusive proofs of mailing in Hodges, we held in
Ward v. Merced, 277 N.J. Super. 590, 593-94 (App. Div. 1994), that a twenty-
one-page official certificate of mailing from the post office that listed the names
and addresses of each insured who was sent a cancellation notice complied with
subsection (a). Thereafter, in Public Service Electric & Gas v. Uphold, 316 N.J.
Super. 168 (App. Div. 1998), we likewise concluded that an insurer's proof of
A-2538-23 7 mailing under subsection (a) was met by a date-stamped certification from the
post office. Id. at 172.
Subsection (b) of N.J.S.A. 17:29C-10, meanwhile, imposes an additional
requirement: that the insurer demonstrate it "has retained a duplicate copy of
the mailed notice which is certified to be a true copy." This independent
requirement was meticulously interpreted and explained by Judge Pressler's
opinion in Celino, 211 N.J. Super. at 543. In that case, an auto insurer conceded
that it had not complied with subsection (b) but argued that the non-compliance
was "inconsequential." Id. at 541. We rejected that argument and instead
underscored the importance of subsection (b), declaring that its compliance "is
a sine qua non of an effective cancellation. . . based not only on the plain
language of the statute but on its history and evident intention." Ibid.
Judge Pressler's opinion in Celino elaborated the requirements of
subsection (b) as follows:
As we therefore construe the statutory condition of a retained certified duplicate copy, it is designed to ease the carrier's proof of mailing burden imposed by Weathers by providing it with a simple, expedient and effective alternative to reliance on standard practice in sending notices. This alternative is its retention of a duplicate copy of the notice, certified to be a true copy. But as we understand the intent of the statute, this mechanism requires that the duplicate be certified as a true copy contemporaneously with preparation and
A-2538-23 8 mailing of the original. The whole point of the requirement is to permit a clerical employee or other custodian of the business record to testify that the file copy is known to be a true copy of the mailed document because the person mailing it so certified at that time.
[Id. at 543 (emphasis added).]
Judge Pressler then punctuated the importance of a contemporaneous
certification:
The added weight of the evidence thus afforded to the file copy is therefore clearly dependent on a contemporaneous certification. A certification made later would be hardly more than an in-house version of standard practice proof.
[Ibid. (emphasis added).]
Our subsequent opinion in Uphold, 316 N.J. Super. at 173 reiterated these
requirements of subsection (b), specifically reinforcing the need for a
contemporaneous certification attesting that a duplicate copy of the cancellation
notice retained by the insurer matched the contents of the notice that had been
mailed to the insured. We determined in Uphold that the insurer's proofs were
inadequate because it was unclear from the deposition testimony of the insurer's
witness whether the copy in its file "was a copy generated contemporaneously
with the notice allegedly mailed to [the insured], and not a subsequently
generated copy." Ibid. It was also plain from her testimony "that the date and
A-2538-23 9 the signature on the certification of the 'true' copy were affixed at different times,
by different people, and that at least the date was entered a day or more after the
date stamped by the post office on its certificate of mailing." Ibid. Even so, we
ratified the insurer's cancellation in Uphold because the insured had not disputed
his receipt of the notice. Id. at 174.
II.
With this statutory and case law background in mind, we turn to the
motion record in this case. That record contains the following incomplete
factual and procedural background relevant to the analysis of NJM's compliance
in this case with subsections (a) and (b) of N.J.S.A. 17:29C-10.
The Collision
On July 23, 2020, plaintiff was driving a car registered to his business
when he was involved in a collision in which his car rear-ended another vehicle.
When plaintiff attempted to file a claim with NJM relating to the collision, he
was informed he was not covered because his policy had been cancelled for
nonpayment of premium nearly seven months earlier, on December 31, 2019 .
Plaintiff contends he was unaware of the cancellation of the policy.
Plaintiff's Apparent Failure to Pay the NJM Auto Premiums
The NJM business auto policy had been issued to plaintiff's professional
A-2538-23 10 corporation, covering the vehicle for the policy period of August 13, 2019, to
August 13, 2020. The policy address on the NJM business auto policy was
plaintiff's home address.
Pretrial discovery, which included the depositions of plaintiff and his
wife, established that plaintiff alone handled the bills including insurance
matters for his household. In his deposition, plaintiff testified that he normally
received NJM bills via mail at his home address, but he had no recollection of
paying NJM bills in October or November of 2019. The insurer's records reflect
that plaintiff had not made a payment since October 14, 2019.
As a result of plaintiff's nonpayment, NJM contends that on November 30,
2019, it sent a "Final Request for Payment Before Notice of Cancellation" to
plaintiff's home address, making a final request for the outstanding payments.
This document advised that if payment was not received within one week, a
Notice of Cancellation would be issued. Plaintiff did not make any further
payments on his business auto policy.
Cancellation Notices
NJM contends that on December 13, 2019, it issued a cancellation notice
to plaintiff. The text of the notice purportedly sent to plaintiff stated that
"CANCELLATION of the policy or policies described above will become
A-2538-23 11 effective on December 31, 2019 at 12:01 a.m., E.S.T." It also noted that
payment of the past due amount of $378.00 prior to the cancellation effective
date could keep the policy current. Due to the continued non-payment, NJM
deemed the business auto policy cancelled effective December 31, 2019, nearly
seven months before the July 23, 2020 car accident at issue.
Alleged Mailing of the Cancellation Notice
NJM submitted three certifications and other documents to attempt to
establish procedures that it contends it followed in mailing the cancellation
notice in question. The main focus of the certifications was on NJM's
compliance with subsection (a) of the statute relating to the mailing , with only
limited attention to subsection (b).
The cancellation notice, allegedly mailed to plaintiff on December 13,
2019, was one of 147 cancellation notices pertaining to personal and commercial
auto insurance policies that NJM contends it sent to various policyholders that
day.
NJM employee Judy D'Orazio certified that on December 13, 2019, the
date of the alleged mailing, she confirmed that each piece of mail listed on what
is described as the proof of mailing "register" was accounted for. She confirmed
that she made slash marks visible in the left-hand column of the register as she
A-2538-23 12 verified the presence of each corresponding piece of mail. After each of the
envelopes was accounted for, D'Orazio initialed the register. Notably, however,
D'Orazio's certification did not certify or provide information about the contents
of the envelopes.
D'Orazio's certification further attested that the mailing was then taken to
the Post Office by an NJM stockroom employee, Daniel Johnston, who also
signed the proof of mailing register.
The proof of mailing register bears a stamped receipt reflecting payment
of $60.27. That stamp reflects receipt by the Post Office of 147 pieces of mail
and payment by NJM of the $0.41 "fee" for each of the 147 pieces of mail. The
actual postage, either $0.50 or $0.65 per piece, was apparently paid separately.
NJM also submitted a purported copy of the cancellation notice that bears
the typewritten undated and unsigned notation, "certified to be a true copy,
original mailed December 13, 2019." We will describe that document in more
detail, infra.
The Claims of the Injured Parties
Occupants of the other vehicle involved in the July 23, 2020 collision sued
plaintiff for their personal injuries. As noted above, when plaintiff contacted
NJM to file a claim, he learned that his policy had been cancelled and that NJM
A-2538-23 13 would not provide coverage. Eventually, plaintiff paid a settlement to the
injured parties from his own funds. He seeks indemnification from NJM for the
amount of the settlement.
This Declaratory Judgment Action
Plaintiff filed the present complaint in the Law Division against NJM in
March 2022. The complaint sought a declaratory judgment determining that, on
the date of the collision, plaintiff's car was covered under a policy issued by
NJM, and that NJM's purported cancellation of that policy had been ineffective.
Plaintiff also sought monetary damages arising from the coverage denial. The
complaint made a jury demand. In its answer, NJM denied plaintiff's claims and
asserted it had duly cancelled plaintiff's policy. NJM also asserted a jury
demand.
At the close of discovery, NJM moved for summary judgment. Plaintiff
opposed the motion and cross-moved for partial summary judgment, limited to
the issue of liability for coverage.
NJM submitted to the motion judge the abovementioned certification of
D'Orazio. NJM also submitted a certification from Sheryl Fay, a claims attorney
employed by NJM, who provided her understanding of NJM's general mailing
procedures, albeit not specifically based on any direct knowledge of the mailing
A-2538-23 14 to plaintiff that is in dispute. In her certification, Fay explained the meaning of
several of the exhibits, including the post office stamp on the proof of mailing
register. Fay explained that the postage is not reflected in the post office stamp
because "the documents reflected in the mailing list (Exhibit J) would have been
printed by [the] department at NJM known as 'Postal & Print,' and that
department is where postage would have been applied to each such mailing."
Fay did not, however, comment on the certification language typewritten on the
cancellation notice that relates to the retention of a true duplicate copy of the
notice.
NJM also provided the motion judge with a certification of Karen Heller,
an attorney with the law firm representing NJM in this matter, who attached
various exhibits but did not attest that she had personal knowledge of the
contents.
The Motion Judge's Ruling
After hearing oral argument, the motion judge issued a decision on March
15, 2024, granting NJM's motion for summary judgment and denying plaintiff's
cross motion. In essence, the judge concluded that NJM had met its burden of
establishing compliance with both subsections of N.J.S.A. 17:29C-10. The
judge discerned no genuine issues of material fact that required further
A-2538-23 15 proceedings.
This Appeal
This appeal by plaintiff ensued. Fundamentally, he makes three points:
(1) the cancellation notice was ineffective because NJM has not presented
sufficient proof that he actually received the cancellation notice; (2) the
documents presented by NJM fall short of establishing its compliance with
subsection (a) of N.J.S.A. 17:29C-10; and (3) the documents also fail to
establish NJM's compliance with subsection (b) of the statute.
III.
In reviewing the trial court's summary judgment ruling, we apply familiar
principles of law and appellate review. Rule 4:46-2(c) provides that a motion
for summary judgment must be granted "if the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law." See also
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). "The court's
function is not 'to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm.,
Inc., 247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. at 540). To decide whether
A-2538-23 16 a genuine issue of material fact exists, the court must "draw[] all legitimate
inferences from the facts in favor of the non-moving party.'" Globe Motor Co.
v. Igdalev, 225 N.J. 469, 480 (2016). Here, because plaintiff lost the summary
judgment motion filed by NJM, we must view the motion record in a light most
favorable to him.
It is also well settled that appellate courts review the trial court's grant or
denial of a motion for summary judgment de novo, applying the same standard
used by the trial court. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582
(2021).
With these principles in mind, we examine plaintiff's three arguments
concerning the handling of cancellation notice.
A.
We readily dispense with plaintiff's argument that the policy cancellation
was ineffective because NJM has not proven he actually received the
cancellation notice in the mail. That legal argument has been expressly rejected
by the courts. See, e.g., Hodges, 260 N.J. Super. at 222-23 ("An insured need
not actually receive a cancellation notice in order for it to be effective, provided
that the statutory proof of mailing has been satisfied."); Lopez v. New Jersey
Auto. Full Ins. Underwriting Ass'n, 239 N.J. Super. 13, 23 (App. Div. 1990) ("If
A-2538-23 17 the offer to renew was mailed, it is irrelevant that plaintiff claims not to have
received the notice."). Moreover, the argument clashes with the text of N.J.S.A.
17:29C-10(a), which gives an insurer the choice of sending out cancellation
notices by certified mail to be signed by the recipient per N.J.S.A. 17:29C-
10(a)(1), or, in the alternative, by regular mail but subject to the conditions
expressed in N.J.S.A. 17:29C-10(a)(2). There is no due process violation or
other legal basis to preclude an insurer from choosing the alternative to certified
mailing.
B.
We concur with the motion judge that NJM has sufficiently established its
compliance with subsection (a) of the statute. The certifications of D'Orazio
and Fay, and the associated documents, including the proof-of-mailing register,
clearly support the trial court's finding that NJM mailed a letter to plaintiff,
along with cancellation mailings to other insureds, on December 13, 2019. As
we noted, D'Orazio checked the entries, initialed the register, and certified that
her coworker who delivered the mailing to the post office had also initialed the
register. Nothing in the statute or case law requires D'Orazio to certify that she
personally carried the letters to the post office. D'Orazio permissibly attested to
her personal knowledge of the company's routine practices in this regard, see
A-2538-23 18 N.J.R.E. 406, and as to her personal involvement in the creation of the register
for December 13, 2019. NJM also supplied the court with the Post Office's "date
stamped proof of mailing showing the name and address of the insured ."
N.J.S.A. 17:29C-10(a)(2).
Even if viewed in a light most favorable to plaintiff, the motion record
amply supports the trial court's finding of NJM's compliance with subsection (a)
of the statute. There are no genuine issues of material fact to litigate respecting
that portion of the statute.
C.
We part company, however, with the trial court's conclusive determination
that NJM demonstrated its compliance with subsection (b). The present record
is inadequate to support that conclusion.
The pivotal document concerning subsection (b) is the cancellation notice
itself and the markings on that document. In the top right quadrant of the single-
page document, it declares in typeface that the document is "certified to be a
true copy, original mailed December 13, 2019." However, this typewritten
statement is unaccompanied by any signature. It fails to identify by name or
initials the person who was making the certification. Nor does it indicate the
date on which the statement was certified. The only date set forth is the alleged
A-2538-23 19 date of the mailing, but not a date on which a true duplicate copy of the contents
of the mailing was made.
In addition, near the middle of the page there is an illegible signature that
is dated 1/23/2020 and on the left-hand side, halfway down the page, are the
undated initials, "CJ". At the top of the page, an "UNDERWRITING Process
Cancellation" stamp is dated December 31 with additional handwriting that
appears to say: "S/O 1/10 DS."
It is unclear from the present record what these markings exactly signify.
None of the certifications by Heller, Fay, or D'Orazio attempt to explain either
how the certified copy was made or obtained, nor the meaning of any of the
markings. They do not attest to either personal knowledge of those matters, nor
do they attest to any routine practices of the company concerning them. NJM
relies on the trial court's finding that its bare typed (and unsigned and undated)
declaration on the document that the duplicate copy is a true one satisfies
N.J.S.A. 17:29C-10(b). We disagree.
This court made abundantly clear in Celino, 211 N.J. Super. at 543, that
subsection (b) of the statute "requires that the duplicate be certified as a true
copy contemporaneously with preparation and mailing of the original"
(emphasis added). "The added weight of the evidence thus afforded to the file
A-2538-23 20 copy is clearly dependent on a contemporaneous certification." Ibid. (emphasis
added). As noted above, we reiterated that requirement in Uphold, 316 N.J.
Super. at 173.
Here, we cannot tell from the motion record who issued the certification
typed on the document and when it was so certified. It could be December 13,
2019, but it might be a later time, an interval which Celino criticizes. The
presence of handwritten notations on the document that appear to refer to dates
in January 2020 add to the confusion and uncertainty. Although NJM's counsel
urges us to ignore the handwritten markings and suggests they may relate only
to post-mailing internal processing activities, the record has no sworn statement
by a company witness providing such an explanation.
Given these shortcomings and uncertainties of the record, and the absence
of testimony from a knowledgeable witness at a deposition or plenary hearing
that addresses and resolves the concerns, we remand this matter for further
proceedings, limited to NJM's compliance or non-compliance with subsection
(b). We leave it to the trial court in its discretion to determine if additional
discovery would be beneficial to develop the record. We also leave it to the trial
court in the first instance to determine whether the compliance issues are
appropriate for a jury trial in this declaratory judgment action, or whether it
A-2538-23 21 would be more appropriate and practical to conduct a plenary hearing on the
issues.
In remanding this case, we do not intend to impose an undue or impractical
burden on insurance companies in cancelling the policies of non-paying
insureds. Nonetheless, the statutes and case law precedents are clear in their
mandate. "In order to be effective, notices of cancellation must be sent in strict
compliance with the provisions of N.J.S.A. 17:29C-10." Hodges, 260 N.J.
Super. at 223 (citing Lopez, 239 N.J. Super. at 13). We suspect that, going
forward, it will not be difficult for insurers to have an employee date and sign
(or initial) the certification typed on the forms. Here, the absence of any such
attestation, along with the markings that post-date the asserted date of mailing,
create a need to develop the record more fully.
Affirmed in part, vacated in part, and remanded in part. We do not retain
jurisdiction.
A-2538-23 22