NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1192-18
VINCENT LAROSA,
Plaintiff-Appellant,
v.
ALLSTATE NEW JERSEY INSURANCE COMPANY,
Defendant-Respondent. __________________________
Argued on June 1, 2021 – Decided July 30, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1201-18.
Joseph Cicala argued the cause for appellant.
Mark J. Walters argued the cause for respondent (Labletta & Walters, LLC, attorneys; Mark J. Walters, of counsel and on the brief).
PER CURIAM This matter arises from plaintiff's challenge to defendant insurance
company's denial of coverage relating to a claim under a motorboat insurance
policy. On July 20, 2018, the trial court dismissed plaintiff's complaint with
prejudice, holding he failed to file the complaint within the allotted one -year
period of limitation. Plaintiff now appeals from the court's October 12, 2018
order denying reconsideration of that earlier order. The one-year time limit was
established under the terms of the insurance policy, which reduced the six-year
period within which suit could be brought under the statute of limitations. See
N.J.S.A. 2A:14-1. Plaintiff contends the suit limitation provision in the policy
is a contract of adhesion and thus unenforceable. Plaintiff also contends he had
no notice that his right to file suit had been reduced from six years to one year,
and that the one-year period of limitation under the policy should have been
tolled while his internal appeal of the insurance carrier's denial of his claim was
pending. After carefully reviewing the record in light of the arguments of the
parties and the governing legal principles, we reject plaintiff's arguments and
affirm the order dismissing his complaint with prejudice. We do so substantially
for the reasons explained by Judge Craig L. Wellerson in his cogent oral opinion
dismissing plaintiff's motion for reconsideration.
A-1192-18 2 We briefly summarize the pertinent facts and procedural history. On
September 5, 2015, plaintiff sustained a loss to his motorboat. He submitted an
insurance claim on September 8, 2015. On October 30, 2015, defendant notified
plaintiff that the loss was not covered by the policy. The notification included
an explanation of the internal appeals procedure informing plaintiff that should
he appeal, he would "receive written notification of the final decision of the
panel within 10 business days."
Plaintiff claims he filed an internal appeal by means of a letter dated
November 18, 2015. Defendant provided the trial court with a certification from
the senior administrative assistant with access to all of defendant's internal
appeals stating, "Allstate has no record of ever receiving an internal appeal for
claim number 0383154796."
Although plaintiff had been notified that the internal appeals process
would be completed within ten days of the submission of an appeal, he failed to
follow up when he did not receive notification of any decision. On May 15,
2018—983 days after the accident and 909 days after purportedly filing an
internal appeal—plaintiff initiated a lawsuit in Superior Court by filing a
complaint with a jury demand. On June 13, 2018, defendant filed a motion to
dismiss in lieu of an answer.
A-1192-18 3 In an October 20, 2018 order, Judge Wellerson granted defendant's motion
to dismiss, ruling that plaintiff's suit was not timely filed. On August 9, 2018,
plaintiff filed a motion for reconsideration:
[t]he specific issue that I am requesting reconsideration of is that the [c]ontract of [i]nsurance is a [c]ontract of [a]dhesion, and as such [d]efendant's argument, which is premised upon a limitation in the policy that reduces the amount of time that an insured can file a claim against [defendant] from six (6) years (as set forth in N.J.S.A. 2A:14-1) to one (1) year, should fail.
Although there was a brief mention of the tolling issue in his certification,
plaintiff focused on the adhesion contention. 1 Plaintiff also claimed that "[u]pon
applying to [defendant] for a policy of insurance to cover our boat, we were
never advised that the policy would limit the statutorily mandated claim period
from six (6) years to one (1) year. Certainly, there was no bargained for
consideration of same."
On October 12, 2018, the parties appeared before Judge Wellerson on the
motion for reconsideration. After listening to the parties' arguments, the judge
1 Plaintiff identified his disagreement regarding the tolling issue, "namely the tolling of the filing period as a result of filing an internal appeal and whether an internal appeal tolls said period[,]" but noted "I will deal with those issues in the Appellate Division if needed, and I am limiting this [n]otice of [m]otion for [r]econsideration to the adhesion contract issue only." A-1192-18 4 denied the motion, rendering an oral opinion. The judge concluded that plaintiff
was bound to the one-year limitation, finding that the limitation period was
reasonable and enforceable. The judge explained,
[i]t has been--long been the-the standard here in the state that when insurance policies set forth time limitations to sue, as long as they are reasonable, if the time limitation would be you have thirty days to file suit, the [c]ourt may very well step in and say even though that is designated, that's an unreasonable term and condition to bind the insured. Here it is one year, it is not unusual that carries set either one year or two years as limitation periods to file these types of claims.
Because we affirm substantially for the reasons explained by the trial
judge in his oral opinion denying the motion for reconsideration, we need not
re-address plaintiff's arguments at length. We add the following comments:
Rule 4:49-2 governs motions for rehearing or reconsideration that seek to
alter or amend a judgment or order. Reconsideration rests within the sound
discretion of the court and is to be exercised in the interest of justice. Cummings
v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Reconsideration is
appropriate "only for those cases which fall into that narrow corridor in which
either 1) the [c]ourt has expressed its decision based upon a palpably incorrect
or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or
failed to appreciate the significance of probative, competent evidence." D'Atria
A-1192-18 5 v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). The moving party must
demonstrate that the court acted "in an arbitrary, capricious, or unreasonable
manner, before the [c]ourt should engage in the actual reconsideration process."
Ibid. Alternatively, a movant may ask the court to reconsider a prior decision
or order if there is new or additional information that the movant could not have
provided on its first application for relief. Ibid. A litigant may not, however,
seek reconsideration "merely because of dissatisfaction with a decision of the
[c]ourt." Ibid.
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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-1192-18
VINCENT LAROSA,
Plaintiff-Appellant,
v.
ALLSTATE NEW JERSEY INSURANCE COMPANY,
Defendant-Respondent. __________________________
Argued on June 1, 2021 – Decided July 30, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1201-18.
Joseph Cicala argued the cause for appellant.
Mark J. Walters argued the cause for respondent (Labletta & Walters, LLC, attorneys; Mark J. Walters, of counsel and on the brief).
PER CURIAM This matter arises from plaintiff's challenge to defendant insurance
company's denial of coverage relating to a claim under a motorboat insurance
policy. On July 20, 2018, the trial court dismissed plaintiff's complaint with
prejudice, holding he failed to file the complaint within the allotted one -year
period of limitation. Plaintiff now appeals from the court's October 12, 2018
order denying reconsideration of that earlier order. The one-year time limit was
established under the terms of the insurance policy, which reduced the six-year
period within which suit could be brought under the statute of limitations. See
N.J.S.A. 2A:14-1. Plaintiff contends the suit limitation provision in the policy
is a contract of adhesion and thus unenforceable. Plaintiff also contends he had
no notice that his right to file suit had been reduced from six years to one year,
and that the one-year period of limitation under the policy should have been
tolled while his internal appeal of the insurance carrier's denial of his claim was
pending. After carefully reviewing the record in light of the arguments of the
parties and the governing legal principles, we reject plaintiff's arguments and
affirm the order dismissing his complaint with prejudice. We do so substantially
for the reasons explained by Judge Craig L. Wellerson in his cogent oral opinion
dismissing plaintiff's motion for reconsideration.
A-1192-18 2 We briefly summarize the pertinent facts and procedural history. On
September 5, 2015, plaintiff sustained a loss to his motorboat. He submitted an
insurance claim on September 8, 2015. On October 30, 2015, defendant notified
plaintiff that the loss was not covered by the policy. The notification included
an explanation of the internal appeals procedure informing plaintiff that should
he appeal, he would "receive written notification of the final decision of the
panel within 10 business days."
Plaintiff claims he filed an internal appeal by means of a letter dated
November 18, 2015. Defendant provided the trial court with a certification from
the senior administrative assistant with access to all of defendant's internal
appeals stating, "Allstate has no record of ever receiving an internal appeal for
claim number 0383154796."
Although plaintiff had been notified that the internal appeals process
would be completed within ten days of the submission of an appeal, he failed to
follow up when he did not receive notification of any decision. On May 15,
2018—983 days after the accident and 909 days after purportedly filing an
internal appeal—plaintiff initiated a lawsuit in Superior Court by filing a
complaint with a jury demand. On June 13, 2018, defendant filed a motion to
dismiss in lieu of an answer.
A-1192-18 3 In an October 20, 2018 order, Judge Wellerson granted defendant's motion
to dismiss, ruling that plaintiff's suit was not timely filed. On August 9, 2018,
plaintiff filed a motion for reconsideration:
[t]he specific issue that I am requesting reconsideration of is that the [c]ontract of [i]nsurance is a [c]ontract of [a]dhesion, and as such [d]efendant's argument, which is premised upon a limitation in the policy that reduces the amount of time that an insured can file a claim against [defendant] from six (6) years (as set forth in N.J.S.A. 2A:14-1) to one (1) year, should fail.
Although there was a brief mention of the tolling issue in his certification,
plaintiff focused on the adhesion contention. 1 Plaintiff also claimed that "[u]pon
applying to [defendant] for a policy of insurance to cover our boat, we were
never advised that the policy would limit the statutorily mandated claim period
from six (6) years to one (1) year. Certainly, there was no bargained for
consideration of same."
On October 12, 2018, the parties appeared before Judge Wellerson on the
motion for reconsideration. After listening to the parties' arguments, the judge
1 Plaintiff identified his disagreement regarding the tolling issue, "namely the tolling of the filing period as a result of filing an internal appeal and whether an internal appeal tolls said period[,]" but noted "I will deal with those issues in the Appellate Division if needed, and I am limiting this [n]otice of [m]otion for [r]econsideration to the adhesion contract issue only." A-1192-18 4 denied the motion, rendering an oral opinion. The judge concluded that plaintiff
was bound to the one-year limitation, finding that the limitation period was
reasonable and enforceable. The judge explained,
[i]t has been--long been the-the standard here in the state that when insurance policies set forth time limitations to sue, as long as they are reasonable, if the time limitation would be you have thirty days to file suit, the [c]ourt may very well step in and say even though that is designated, that's an unreasonable term and condition to bind the insured. Here it is one year, it is not unusual that carries set either one year or two years as limitation periods to file these types of claims.
Because we affirm substantially for the reasons explained by the trial
judge in his oral opinion denying the motion for reconsideration, we need not
re-address plaintiff's arguments at length. We add the following comments:
Rule 4:49-2 governs motions for rehearing or reconsideration that seek to
alter or amend a judgment or order. Reconsideration rests within the sound
discretion of the court and is to be exercised in the interest of justice. Cummings
v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Reconsideration is
appropriate "only for those cases which fall into that narrow corridor in which
either 1) the [c]ourt has expressed its decision based upon a palpably incorrect
or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or
failed to appreciate the significance of probative, competent evidence." D'Atria
A-1192-18 5 v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). The moving party must
demonstrate that the court acted "in an arbitrary, capricious, or unreasonable
manner, before the [c]ourt should engage in the actual reconsideration process."
Ibid. Alternatively, a movant may ask the court to reconsider a prior decision
or order if there is new or additional information that the movant could not have
provided on its first application for relief. Ibid. A litigant may not, however,
seek reconsideration "merely because of dissatisfaction with a decision of the
[c]ourt." Ibid. A decision on a motion for reconsideration is reviewed under
the abuse of discretion standard. Cummings, 295 N.J. Super at 389.
With respect to the applicable standard of review of the underlying
decision to dismiss the complaint, the interpretation of an insurance policy is
considered to be a question of law, subject to de novo review. Wear v. Selective
Ins. Co., 455 N.J. Super. 440, 453 (App. Div. 2018). Courts must interpret the
policy language's plain, ordinary meaning. Ibid.; see also Nav-Its, Inc. v.
Selective Ins. Co., 183 N.J. 110, 118 (2005).
With these general legal principles in mind, we first consider plaintiff's
contention that the lawsuit limitation provision rendered the insurance policy a
contract of adhesion and thus unenforceable as to that provision. "[T]he
essential nature of a contract of adhesion is that it is presented on a take-it-or-
A-1192-18 6 leave-it basis, commonly in a standardized printed form, without opportunity for
the 'adhering' party to negotiate except perhaps on a few particulars." Rudbart
v. N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344, 353 (1992).
Applying de novo review to the insurance policy at issue, we agree with
Judge Wellerson that the policy was not an unconscionable contract of adhesion.
New Jersey courts have long recognized the validity of suit limitation
provisions. See Ignazio v. Fire Ass'n of Phila., 98 N.J.L. 602, 604–05 (1923);
Weinroth v. New Jersey Mfrs. Ass'n Fire Ins. Co., 117 N.J.L. 436, 438–39 (E.
& A. 1937); Peloso v. Hartford Fire Ins. Co., 56 N.J. 514, 521 (1970). We note
that in Peloso, our Supreme Court enforced a suit limitation provision in a fire
insurance policy that was substantially similar to the one in the motorboat
insurance policy presently before us. Plaintiff has cited no legal authority to
support his contention that a one-year time limit for an aggrieved policyholder
to commence suit against an insurance company is unreasonable or
unconscionable.
We likewise reject plaintiff's argument that we should invoke the doctrine
of reasonable expectations to void the time limitation for bringing suit
prescribed in the policy. In Kievit v. Loyal Protective Life Ins. Co., our Supreme
Court recognized that "the court's goal in construing an accident insurance
A-1192-18 7 policy is to effectuate the reasonable expectations of the average member of the
public who buys it . . . ." 34 N.J. 475, 488 (1961). The Court reasoned that
members of the public "should not be subjected to technical encumbrances or to
hidden pitfalls and their policies should be construed liberally in their favor to
the end that coverage is afforded 'to the full extent that any fair interpre tation
will allow.'" Id. at 482 (quoting Danek v. Hommer, 28 N.J. Super. 68, 76 (App.
Div. 1953)).
The cornerstone of plaintiff's argument is that the general statute of
limitations for civil actions set forth in N.J.S.A. 2A:14-12 affords six years to
bring a cause of action concerning a contract dispute. Plaintiff argues "[a]n
ordinary lay person, by doing a simple Google search, would determine in
2 N.J.S.A. 2A:14-1 reads:
[e]very action at law for trespass to real property, for any tortious injury to real or personal property, for taking, detaining, or converting personal property, for replevin of goods or chattels, for any tortious injury to the rights of another not stated in sections 2A:14-2 and 2A:14-3 of this Title, or for recovery upon a contractual claim or liability, express or implied, not under seal, or upon an account other than one which concerns the trade or merchandise between merchant and merchant, their factors, agents and servants, shall be commenced within 6 years next after the cause of any such action shall have accrued.
A-1192-18 8 seconds that the statute of limitations on such claims is six (6) years." That may
be so, but plaintiff was obliged to look also to the terms of the contract. See
Stelluti v. Casapenn Enters., LLC, 203 N.J. 286 (2010) ("When a party enters
into a signed, written contract, that party is presumed to understand and assent
to its terms, unless fraudulent conduct is suspected.").
Plaintiff argues he "was not even aware that the limitation existed until
the [d]efendant filed the [n]otice of [m]otion to [d]ismiss the [c]omplaint[.]"
Plaintiff's failure to read the policy, however, affords no basis under the
reasonable expectation doctrine upon which we may disregard the policy's
express and unambiguous terms. The policy explicitly provides: "Suit Against
Us[:] No suit or action may be brought against us unless there has been full
compliance with all the policy terms. Any suit or action must be brought within
one year after the date of loss." (emphasis in original).
We conclude the suit limitation provision was not a "technical
encumbrance" or "hidden pitfall" within the meaning of Kievit. As we have
noted, suit limitation provisions reducing the time to bring suit otherwise
afforded under the statute of limitations are reasonable, common, and
enforceable. The fact that plaintiff failed to read the contract is of no moment.
A-1192-18 9 Finally, we address plaintiff's argument the one-year time limit was tolled
because defendant never responded to plaintiff's request for an internal appeal.
As we have noted, plaintiff relies on a letter initiating the internal appeal that he
claims was sent on or about November 18, 2015. Defendant asserts that it has
no record of receiving plaintiff's internal appeal. Defendant also stresses that
plaintiff never checked on the status of the purported internal appeal despite
having been advised the company would announce its decision within ten days
of receipt of the internal appeal. We need not resolve the factual dispute for
purposes of our de novo review. Even accepting for purposes of argument that
plaintiff initiated an internal appeal and defendant never rendered a final
determination on it, we hold that plaintiff's argument is unavailing because the
pendency of an internal appeal does not toll the running of the period within
which a lawsuit must be filed under the policy. See Matos v. Farmers Mut. Fire
Ins. Co., 399 N.J. Super. 219, 227–28 (App. Div. 2008) ("Neither Peloso nor the
[insurance policy at issue] indicates that the filing of an internal appeal tolls the
twelve-month period for filing a suit.").
To the extent we have not addressed them, any remaining arguments
raised by plaintiff lack sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(1)(E).
A-1192-18 10 Affirmed.
A-1192-18 11