VINCE A. SICARI, ESQ., ETC. VS. THE HARTFORD INSURANCE COMPANY OF THE MIDWEST(C-00243-14, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 10, 2017
• Docket: A-0492-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0492-15T1

VINCE A. SICARI, ESQ., ATTORNEY AT LAW, LLC,

Plaintiff-Appellant,

v.

THE HARTFORD INSURANCE COMPANY OF THE MIDWEST,

Defendant-Respondent,

and

SUBURBAN GENERAL INSURANCE AGENCY,

Defendant.

_________________________________

Submitted November 28, 2016 – Decided May 10, 2017

Before Judges Sabatino and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-00243-14.

Vince A. Sicari, appellant pro se.

Mound Cotton Wollan & Greengrass, LLP, attorneys for respondent (Frank J. DeAngelis, on the brief). PER CURIAM

Plaintiff Vince A. Sicari, Esq., Attorney at Law, LLC, appeals

from September 21, 2015 Law Division orders granting defendant The

Harford Insurance Company of the Midwest's (Hartford's) summary

judgment motion and denying his own motion for summary judgment.

For the reasons that follow, we affirm.

We derive the following facts from the motion record, viewed

most favorably to plaintiff. Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995). Plaintiff is an attorney who

operates his own law practice. Hartford issued plaintiff an

insurance policy effective July 31, 2010 through July 31, 2011

(the 2010 policy), which included coverage for commercial general

liability, business personal property liability, and lawyers'

professional liability. Plaintiff paid a premium of $2728 for the

2010 policy.

On May 31, 2011, two months before the 2010 policy expired,

Hartford mailed plaintiff a letter advising there would be a

"[r]eduction in [c]overage" regarding "[l]awyer's [p]rofessional

[l]iability." Attached to the letter was a notice stating Hartford

was "no longer writing [l]awyer's [p]rofessional [l]iability

coverage as an endorsement to its . . . policy."

Plaintiff testified at his deposition that he never received

the May 31, 2011 letter and was unaware it existed until he

2 A-0492-15T1 received a copy in discovery. However, plaintiff admitted the

letter was addressed to his office. In addition, plaintiff's

routine practice upon receiving an insurance policy was to review

it and then call the insurance broker to ask whether he needed to

take any additional action "in furtherance of [the policy.]"

On June 21, 2011, plaintiff signed a renewal application for

lawyers' professional liability insurance coverage and submitted

the application to the insurance broker. On July 13, 2011, the

broker e-mailed the application to Hartford and requested Hartford

to review the application and contact the broker with any

questions. Hartford received plaintiff's application, but never

notified the broker whether it contained any deficiencies or that

it "was not going to be processed[.]" According to the broker,

Hartford normally responds to renewal applications by indicating

it received and was processing the application, received and was

not processing the application for certain reasons, or lacked

adequate information to determine whether to process the

application. When the broker failed to receive a response, he

assumed Hartford was still processing the application.

Without responding to plaintiff's renewal application for

lawyers' professional liability insurance, Hartford issued a

policy for the July 31, 2011 to July 31, 2012 period (the 2011

policy). Except for the lawyer's professional liability coverage,

3 A-0492-15T1 which Hartford no longer provided, the 2011 policy provided

substantially the same coverage as the 2010 policy. The premium

for the 2011 policy was $649, a $2079 reduction from the 2010

policy.

Plaintiff renewed the Hartford policy for the July 2012

through July 2013 period (the 2012 policy) at a premium of $663.

Like the previous year's policy, the 2012 policy contained no

reference to lawyer's professional liability coverage. The 2011

and 2012 polices provided coverage for commercial general

liability and business personal property only. The record does

not reflect plaintiff filed a renewal application for lawyers'

professional liability insurance for the 2012 policy period.

In June 2013, when plaintiff began receiving mass mailings

from insurance providers regarding malpractice coverage, he

contacted his insurance broker and inquired about his own

malpractice insurance. A few weeks later, the insurance broker

informed plaintiff his malpractice coverage had lapsed.

Thereafter, in July 2013, plaintiff discovered a potential

malpractice claim against him.

Based on these circumstances, in August 2013, plaintiff filed

a verified complaint and order to show cause seeking to compel

Hartford to provide retroactive lawyers' professional liability

coverage in accordance with his June 2011 renewal application.

4 A-0492-15T1 On August 30, 2013, the court denied plaintiff's order to show

cause and directed that the case proceed in the normal course.

On April 25, 2014, plaintiff filed a second complaint seeking

to compel the same coverage from Hartford. The second complaint

also sought indemnification from the insurance broker for any

malpractice liability plaintiff would incur during the coverage

gap period. On June 2, 2014, plaintiff filed a third complaint

against the insurance broker and Hartford seeking the same relief

as alleged in the second complaint. Both Hartford and plaintiff's

insurance broker filed answers, and the insurance broker also

filed a motion to dismiss under Rule 4:6-2(e). The case was

subsequently transferred from the Law Division to the Chancery

Division. There, during a September 25, 2014 status conference,

the court dismissed plaintiff's third complaint solely as to the

broker.1 That particular dismissal is not at issue on appeal. The

matter proceeded against Hartford.

Several months later, plaintiff moved for summary judgment,

and Hartford cross-moved for summary judgment the following day.

At a hearing on the parties' motions, the court noted the

"attention grabbing reduction" in plaintiff's premiums and that

1 Plaintiff did not provide a transcript of the September 25, 2014 status conference wherein the trial court presumably provided its reasons for dismissing the complaint against the broker.

5 A-0492-15T1 plaintiff "made a mistake by not noticing that [he] no longer had

insurance." The court later issued a written decision.

In its written decision, the court ultimately found

Hartford's May 31, 2011 letter "sufficient to notify [p]laintiff

that Hartford would not renew the professional liability coverage

in [p]laintiff's policy" and "Hartford fully complied with the

regulatory requirements for notification of nonrenewal." That,

coupled with "the drop in the premium and the absence of any

mention of lawyers' professional liability coverage in the text

of the 2011 and 2012 policies," proved plaintiff had "statutory

and sufficient notice of the change in [his] coverage and cannot

argue . . . [he] was reasonably unaware" he lacked coverage.

Lastly, the court noted plaintiff's renewal application did not

create a contract between plaintiff and Hartford. The court thus

denied plaintiff summary judgment and granted Hartford summary

judgment. This appeal followed.

On appeal, plaintiff argues the weight of the evidence on the

motion record overwhelmingly supports his assertion that he never

received Hartford's written non-renewal notice; the court failed

to acknowledge Hartford's standard procedures and business

practices concerning accepting and renewing insurance

applications; and Hartford did not discontinue its malpractice

insurance coverage as claimed.

6 A-0492-15T1 We review a trial court's summary judgment decision de novo.

Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014)

(citing Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115

(2014)). In conducting our review, we must determine "whether the

evidence presents a sufficient disagreement to require submission

to a [fact finder] or whether it is so one-sided that one party

must prevail as a matter of law." Brill, supra, 142 N.J. at 536

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,

106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). When making

this determination, the evidence must be viewed "in the light most

favorable to the non-moving party." Nicholas v. Mynster, 213 N.J.

463, 477-78 (2013) (quoting Murray v. Plainfield Rescue Squad, 210

N.J. 581, 584 (2012)). A grant of summary judgment in favor of

the moving party is only proper if "there is no genuine issue as

to any material fact challenged[.]" Davis, supra, 219 N.J. at

405-06 (quoting R. 4:46-2(c)). "An issue of fact is genuine only

if . . . the evidence submitted by the parties on the motion,

together with all legitimate inferences therefrom favoring the

non-moving party, would require submission of the issue to the

trier of fact." R. 4:46-2(c). In contrast, "summary judgment

will not lie . . . if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party." Anderson, supra,

447 U.S. at 248, 106 S. Ct. at 2510, 91 L. Ed. 2d at 212.

7 A-0492-15T1 We turn first to plaintiff's argument that he never received

the non-renewal notice. When it is "thoroughly feasible" for an

insurance company "to alert an assured with respect to changes in

a renewal policy," the insurance company must do so. Merchs.

Indem. Corp. v. Eggleston, 37 N.J. 114, 121-22 (1962) (citing

Bauman v. Royal Indem. Co., 36 N.J. 12 (1961)). "[W]here an

insurance company purports to issue a policy as a renewal policy

without fairly calling the insured's attention to a reduction in

the policy coverage, [the insurance company] remains bound by any

greater coverage afforded in the earlier policy." Bauman, supra,

36 N.J. at 23. Stated differently, an insured is not bound by a

change in a renewal policy when the insurance company fails to

notify the insured of the change. Id. at 24 (citation omitted).

An insured's failure to "examine the renewal policy until after

the event insured against" occurs is immaterial. Ibid. (citation

omitted).

Under N.J.A.C. 11:1-20.2(a), "[n]o [insurance] policy shall

be nonrenewed upon its expiration date unless a valid written

notice . . . has been mailed or delivered to the insured in

accordance with the provisions of this subchapter." Such a

nonrenewal notice is not valid unless sent by certified mail or

by first class mail, "if at the time of mailing the insurer has

obtained from the Post Office Department a date stamped proof of

8 A-0492-15T1 mailing showing the name and address of the insured[.]" N.J.A.C.

11:1-20.2(i).

Here, by way of notice on May 31, 2011, two months before

plaintiff's 2010 policy expired, Hartford duly notified plaintiff

it would no longer provide coverage for lawyer's professional

liability. That notice further specified, "[i]f your state

requires a notice of non-renewal as a result of the indicated

change(s), this is [the insurer's] notice to you in compliance

with the applicable law." In the trial court's letter decision,

it noted the insurer provided a copy of the notice "and a

certificate of mailing with [p]laintiff's address and policy

number listed as a recipient." We agree with the trial court that

the May 31 notice complied with the regulatory requirements for

non-renewing the professional liability coverage in plaintiff's

policy. That plaintiff was unaware of the contents of the notice

does not render Hartford non-compliant with the law.

Moreover, plaintiff was charged with knowledge of the

policy's contents. See, e.g., Merchs. Indem. Corp., supra, 37

N.J. at 121 ("an insured is chargeable with knowledge of the

contents of a policy, in the absence of fraud or unconscionable

conduct on the part of the carrier"); Lehrhoff v. Aetna Cas. and

Sur. Co., 271 N.J. Super. 340, 346-47 (App. Div. 1994) ("a

conscientious policyholder, upon receiving the policy, would

9 A-0492-15T1 likely examine the declaration page to assure himself that the

coverages and their amounts, the identity of the insured

[property], and the other basic information appearing thereon are

accurate and in accord with his understandings of what he is

purchasing"); Morrison v. Am. Int'l Ins. Co. of Am., 381 N.J.

Super. 532, 542 (2005) (if "an insured purchases an original policy

of insurance he may be expected to read it and the law may fairly

impose upon him such restrictions, conditions and limitations as

the average insured would ascertain from such reading").

In addition, while the trial court acknowledged Hartford

received and should have responded to plaintiff's renewal

application, plaintiff himself should have noticed the absence of

lawyers' professional liability coverage on his declarations page

and the sharp drop in premiums for his 2011 and 2012 policies.

See Prather v. Am. Motorists Ins. Co., 2 N.J. 496, 503 (1949)

(noting that a premium may be considered when construing an

insurance policy since "[a]n insurer may fairly be assumed to

intend to limit the risk to the price exacted."). That large

premium drop should have been a "red flag," and plaintiff's

apparent failure to take notice weakens his argument for coverage.

Plaintiff also argues his renewal application was accepted

and should have been processed by Hartford. Plaintiff did, in

fact, complete and submit an application for renewed coverage to

10 A-0492-15T1 his broker, who forwarded the application to Hartford. Hartford

did not respond.

Although the better practice would have been to notify

plaintiff or his broker that lawyers' professional liability

coverage would not be renewed, plaintiff's completion of the

renewal application did not obligate Hartford to process the

application and renew insurance in a category for which coverage

was no longer offered. Plaintiff's renewal application did not

create a contract between himself and Hartford because Hartford

did not offer lawyers' professional liability coverage as part of

plaintiff's renewed insurance policy. See Trs. of First

Presbyterian Church v. Howard Co. Jewelers, 12 N.J. 410, 414 (1953)

(citation omitted) ("an offer to constitute a contract must be in

a form which is intended of itself to create legal relations on

its acceptance. It must contemplate the assumption of legal rights

and duties and must show a clear intention to assume liability.").

The record clearly reflects that Hartford did not intend to

provide plaintiff with continued lawyers' professional liability

coverage. In fact, Hartford intended the opposite. Its May 31,

2011 notice to plaintiff manifested its intent to discontinue

lawyers' professional liability coverage. Thus, contractual

principles do not compel the result that Hartford retroactively

provide plaintiff lawyer's professional liability coverage.

11 A-0492-15T1 Plaintiff had ample notice that his 2011 and 2012 polices did

not include lawyers' professional liability coverage. His renewal

application did not obligate Hartford to provide coverage it no

longer offered. The trial court did not err in granting Hartford

summary judgment.

Plaintiff's remaining arguments are without sufficient merit

to warrant further discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

12 A-0492-15T1