KING WIRELESS, LLC VS. MIDVALE INDEMNITY COMPANY (L-7800-17, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0491-19T1
KING WIRELESS, LLC,
Plaintiff-Appellant,
v.
MIDVALE INDEMNITY
COMPANY,1
Defendant-Respondent.
Submitted October 7, 2020 – Decided October 27, 2020
Before Judges Fuentes and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-7800-17.
Michael I. Lubin, attorney for appellant.
Burke & Potenza, P.A., attorneys for respondent (Joel
R. Bellush, on the brief).
PER CURIAM
1
Improperly pled as GEICO Insurance Company.
In this insurance coverage dispute, plaintiff King Wireless, LLC, appeals
from a March 15, 2019 Law Division order granting summary judgment to
defendant Midvale Indemnity Company. The motion judge determined
defendant had properly cancelled a commercial insurance policy for non-
payment of premiums and, as a result, he dismissed the complaint in its entirety.
Because defendant complied with the notice provisions set forth in N.J.A.C.
11:1-20.2(e), we affirm.
As required by Rule 4:46-2(c), we view the facts in the light most
favorable to plaintiff. See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 523 (1995). Those facts are summarized as follows.
Plaintiff, a limited liability company, operated an electronics store on
Ferry Street in Newark. Defendant issued a commercial insurance policy to
plaintiff for the period from June 14, 2016 to June 14, 2017. The policy was
procured during a telephone conversation between plaintiff's sole owner, Nader
Moussa, and Kimberly Crawley, a representative of GEICO Commercial Lines
Program.2 During the call, Moussa selected $160,000 in coverage and paid the
initial deposit on the $2576.99 premium by credit card.
2
Defendant was the underwriter for GEICO Commercial Lines Program on the
policy.
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The parties dispute the method of payment for the remaining premium
installments: Moussa claims he told Crawley to charge the same credit card;
defendant 3 asserts Moussa declined the automatic payment method, choosing
instead "to receive documents by physical mail." Moussa acknowledged he
thereafter received a copy of the policy, which was sent to plaintiff's address o n
Ferry Street.
On June 24, 2016, defendant issued a billing statement listing the
remaining monthly payment schedule. The billing statement also contained an
"Important Note," advising plaintiff it could "pay by phone with [its] credit card
or an electronic check[,]" or "via automated recurring deductions from [its]
checking account or credit card." In plaintiff's responses to defendant's material
statement of facts in support of its summary judgment motion, plaintiff neither
3
To support its summary judgment motion, defendant filed the affidavit of
Nathan Miller, a commercial product manager of Homesite Insurance Company.
According to Miller's affidavit, Homesite and defendant "are affiliates of
American Family Mutual Insurance Company." Miller conducted a review of
the record entries of the telephone call between Moussa and Crawley, who did
not file an affidavit. Miller summarized defendant's procedure for issuing
insurance during such calls generally and the substance of the parties' call here.
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admitted nor denied that defendant "mailed" the billing statement; plaintiff did
not, however, deny receiving the billing statement. 4
It is undisputed that plaintiff did not remit payment for the second
installment, which was due on July 14, 2016. Moussa claimed he assumed
installment payments would be charged to plaintiff's credit card, which he
furnished to Crawley during their call.
Thereafter, defendant issued a cancellation notice to plaintiff. The notice,
dated July 25, 2016, stated coverage would terminate on August 14, 2016 at
12:01 a.m., unless a minimum payment of $214.75 was made by that date.
Defendant issued a reminder notice, dated August 7, 2016, reflecting the same
minimum payment due to avoid the cancellation deadline on August 14, 2016.
When deposed, Moussa denied receiving the cancellation and reminder
notices. He testified another electronics store was located in plaintiff's building
and shared the same street address. Moussa claimed mail often was delivered
4
See R. 4:46-2(b) (requiring a party opposing a summary judgment motion to
"either admit[] or disput[e] each of the facts in the movant's statement [of
material facts]" and deeming admitted the movant's statements "unless
specifically disputed by citation . . . demonstrating the existence of a genuine
issue as to the fact"). Plaintiff provided no citation to the record in any of its
responses or counterstatement of facts.
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to the wrong store and, due to his poor relationship with the owner of that store,
Moussa would not receive misdelivered mail.
In his affidavit, Miller asserted the notice of cancellation
was mailed from the offices of a print and mail vendor
used by [defendant] in Omaha, Nebraska. In
accordance with New Jersey statute and regulation,
[defendant] retained a proof of mailing of various
cancellation notices mailed on July 26, 2016, including
that which was sent to King Wireless LLC at [XXX]
Ferry Street in Newark. A copy of that proof of
mailing, bearing the July 26, 2016 stamp of the Omaha,
Nebraska office of the United States Postal Service is
attached as Exhibit D.
According to plaintiff's answers to interrogatories, on September 2, 2016,
after a neighboring store was burglarized, Moussa called defendant to ensure
plaintiff's policy "was in full force and effect." Moussa claimed defendant
verified coverage during that call, but he did "not know the name of the person
he spoke with." 5 Two months later, a fire caused damage to plaintiff's place of
business. Defendant denied the claim because the policy had been cancelled for
nonpayment of premium. In November 2017, plaintiff filed its complaint
against defendant, seeking to recover damages sustained as a result of the fire.
5
Plaintiff provided its telephone records in discovery. The telephone records
provided on appeal do not contain any September 2016 calls.
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Defendant moved for summary judgment at the end of the discovery
period. The motion judge heard argument from counsel and immediately
thereafter issued a brief oral decision in defendant's favor. In essence, the judge
determined "defendant cancelled the policy pursuant to the administrative code,
and [as such] . . . the notice [wa]s presumed to be received" provided defendant
followed the mandates of N.J.A.C. 11:1-20.2. This appeal followed.
On appeal, plaintiff reprises its argument that a genuine issue of fact
regarding its method of payment precludes summary judgment. In doing so,
plaintiff emphasizes the "key factual issue" is "not whether the policy was
cancelled for nonpayment of premiums, but whether it [wa]s properly
cancelled." Toward that end, plaintiff maintains: "The question was not
whether defendant followed the New Jersey Administrative Code regarding
cancellation of an insurance policy, whether it actually sent a notice of
cancellation or whether plaintiff received the notice of cancellation."
We review the trial court's grant of summary judgment de novo. Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016). Employing the same standard the trial court uses, we review the
record to determine whether there are material factual disputes and, if not,
whether the undisputed facts viewed in the light most favorable to plaintiff
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nonetheless entitle defendant to judgment as a matter of law. Ibid.; Brill, 142
N.J. at 540; see also R. 4:46-2(c). We owe no deference to the trial court's legal
analysis or interpretation of a statute. Palisades at Fort Lee Condo. Ass'n v. 100
Old Palisade, LLC, 230 N.J. 427, 442 (2017) (citation omitted).
The governing principles are well-established. The Commissioner of
Banking and Insurance is authorized to promulgate rules and regulations
regarding insurance non-renewal and cancellation notices. N.J.S.A. 17:29C-1;
Piermount Iron Works, Inc. v. Evanston Ins. Co., 197 N.J. 432, 439-40 (2009).
Pursuant to that authority, the Commissioner has adopted, among other
provisions, N.J.A.C. 11:1-20.1. Pursuant to subsection (e) of this regulation:
A policy shall not be cancelled for nonpayment of
premium unless the insurer, at least 10 days prior to the
effective cancellation date, has mailed or delivered to
the insured notice as required in this subchapter of the
amount of premium due and the due date. The notice
shall clearly state the effect of nonpayment by the due
date.
Further, a notice of cancellation or non-renewal is not valid unless it is
sent:
1. By certified mail; or
2. By first class mail, if at the time of mailing the
insurer has obtained from the Post Office Department a
date stamped proof of mailing showing the name and
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address of the insured, and the insurer has retained a
duplicate copy of the mailed notice.
[N.J.A.C. 11:1-20.2(i).]
We have held, albeit in the context of automobile insurance coverage, that
to be effective, notices of cancellation must be sent in strict compliance with
applicable statutory and regulatory provisions. See, e.g., Lopez v. N.J. Auto.
Full Ins. Underwriting Ass'n, 239 N.J. Super. 13, 20 (App. Div. 1990). We have
also recognized, however, that "[a]n 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." Hodges v. Pa. Nat. Ins. Co. on Behalf of
NJAFIUA, 260 N.J. Super. 217, 222-23 (App. Div. 1992) (citation omitted).
Thus, the determinative factor is the mailing of the notice, not its receipt. See
Needham v. N.J. Ins. Underwriting Ass'n, 230 N.J. Super. 358, 369 (App. Div.
1989).
Here, however, plaintiff does not challenge whether defendant complied
with N.J.A.C. 11:1-20.2. An issue not briefed is deemed waived. See Gormley
v. Wood-El, 218 N.J. 72, 95 n.8 (2014). Nonetheless, we note the exhibits
offered in support of defendant's motion for summary judgment include a proo f
of mailing from the Omaha, Nebraska branch of the United States Postal Service,
which is date-stamped July 26, 2016 and accurately reflects plaintiff's complete
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business name and address, and a copy of the mailed notice of cancellation as
required by subsection (i) of N.J.A.C. 11:1-20.2. Accordingly, we conclude
defendant's cancellation of the insurance policy was made in accordance with
the governing regulation. We therefore discern no basis to disturb the motion
judge's decision.
To the extent not addressed, plaintiff's remaining arguments lack
sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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