Allstate New Jersey Ins. Co. v. Gregorio Lajara (073511)

SYLLABUS
(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
interest of brevity, portions of any opinion may not have been summarized.)
Allstate New Jersey Insurance Co. v. Gregorio Lajara (A-70-13) (073511)
Argued January 5, 2015 -- Decided July 16, 2015
ALBIN, J., writing for a unanimous Court.
The issue in this appeal is whether a civil defendant sued by an insurance company for violating the
Insurance Fraud Prevention Act (IFPA), N.J.S.A. 17:33A-1 to -30, has a right to trial by jury.
In December 2008, plaintiffs Allstate New Jersey Insurance Company and affiliated companies filed a 604-
paragraph complaint alleging that sixty-three defendants violated the IFPA. The complaint alleges that defendants
engaged in a “broad, multi-faceted scheme to defraud” plaintiffs of $8.14 million in personal injury protection
benefits under the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -35. Plaintiffs sought
various forms of relief: payment of compensatory damages, treble damages, and attorneys’ fees under the IFPA; a
declaration that allegedly fraudulent benefits do not have to be paid; disgorgement of benefits paid; and constructive
trusts and equitable liens on defendants’ assets. Although plaintiffs demanded a jury trial in the complaint, they
later moved to withdraw that demand.
The trial court granted plaintiffs’ motion to withdraw their jury-trial demand and denied defendants’
request for trial by jury. The court determined that State v. Sailor, 355 N.J. Super. 315 (App. Div. 2001), was “the
controlling precedent.” In that case, the State brought an action under the IFPA against an individual defendant for
giving false information to an insurance carrier regarding an automobile accident. The State sought restitution on
the claim paid to the defendant. The Appellate Division determined that the plaintiff was not entitled to a jury trial
because the Act did not expressly provide such a right and because the remedy at issue was equitable in nature.
Defendants filed a motion for leave to appeal. The Appellate Division granted leave to appeal and affirmed
the trial court’s denial of defendants’ demand of a jury trial. Allstate N.J. Ins. Co. v. Lajara, 433 N.J. Super. 20, 44
(App. Div. 2013). The panel held that, in an insurer’s action under N.J.S.A. 17:33A-7, the IFPA contains no express
right to a jury. Id. at 38. It also declined to find an implied right from the statute’s silence. Ibid. Additionally, the
panel found that defendants did not possess a constitutional jury-trial right. Id. at 42.
The Supreme Court granted defendants’ motion for leave to appeal.
HELD: The right to a civil jury trial provided by Article I, Paragraph 9 of the New Jersey Constitution applies to
private-action claims seeking compensatory and punitive damages under the Insurance Fraud Prevention Act,
N.J.S.A. 17:33A-1 to -30.
1. The right to a jury trial was foremost in the minds of the drafters of New Jersey’s first Constitution, which
declared “that the inestimable right of trial by jury shall remain confirmed, as a part of the law of this colony,
without repeal, forever.” N.J. Const. (1776) art. XII. That bedrock principle was reaffirmed in the State’s 1844 and
1947 Constitutions, both of which proclaimed that “[t]he right of trial by jury shall remain inviolate.” N.J. Const.
(1844) art. I, § 7; N.J. Const. (1947) art. I, ¶ 9. The right of a civil jury trial is preserved in the Seventh Amendment
to the United States Constitution, U.S. Const. amend. VII, but that guarantee extends only to federal trials. Thus,
“the right to a trial by jury in New Jersey must arise under either a statute or the state constitution.” In re Envtl. Ins.
Declaratory Judgment Actions, 149 N.J. 278, 292 (1997). (pp. 11-14)
2. Neither the Seventh Amendment to the United States Constitution nor New Jersey’s constitutional counterpart
was ever intended to guarantee a right to a jury trial in all civil cases. The jury-trial right did apply to all common-
law “suits in which legal rights were to be ascertained and determined.” Curtis v. Loether, 415 U.S. 189, 193
(1974). Under New Jersey’s constitutional jurisprudence, the right to a jury trial applies to causes of action -- even
statutory causes of action -- that sound in law rather than equity. Federal courts look almost exclusively to whether
1
the remedy is legal in nature, but New Jersey courts consider not only the nature of the relief -- the remedy -- but
also the historical basis for the cause of action. The nature of the remedy, however, “remains the most persuasive
factor.” Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 589 (2013). (pp. 14-16)
3. Under the IFPA, “[a]ny insurance company damaged as the result of a violation of [the Act] may sue . . . to
recover compensatory damages, which shall include reasonable investigation expenses, costs of suit and attorneys
fees.” N.J.S.A. 17:33A-7(a). The IFPA does not set forth equitable remedies for private-party insurance actions,
but that does not preclude insurance companies from seeking equitable remedies available at common law. Like the
Consumer Fraud Act, N.J.S.A. 56:8-1 to -109 (CFA), the IFPA does not expressly confer the right to a jury trial.
The Court must determine whether the remedies in a private action under the IFPA are legal in nature and whether
the cause of action is similar to one recognized under the common law. (pp. 16-18)
4. The IFPA authorizes an insurance company to pursue compensatory and treble damages against a violator.
N.J.S.A. 17:33A-7(a), (b). Treble damages are intended to punish, and only partly to compensate, and therefore
have the classic features of punitive damages. Compensatory damages, including attorneys’ fees and costs, are
trebled if the court finds that a defendant engaged in a pattern of violating the IFPA. Because only the first third of a
treble-damages award is intended to compensate the victim for actual damages, the remaining award is clearly in the
nature of punitive damages. Monetary damages, such as compensatory and punitive damages, are a typical form of
legal relief. In contrast, equitable processes “are available only to the party who cannot have a full measure of relief
at law.” Wood v. N.J. Mfrs. Ins. Co., 206 N.J. 562, 578 (2011). By any measure, the relief available to insurance
companies in IFPA actions -- compensatory damages, treble damages, and attorneys’ fees and costs -- is legal in
nature. (pp. 18-22)
5. To succeed on an IFPA claim, an insurance company must demonstrate that: (1) the defendant “presented” a
“written or oral statement”; (2) the defendant knew that the statement contained “false or misleading information”;
and (3) the information was “material” to “a claim for payment or other benefit pursuant to an insurance policy or
the Unsatisfied Claim and Judgment Fund Law.” N.J.S.A. 17:33A-4(a)(1). The insurance company must also prove
a fourth element -- that it was “damaged as the result of a violation of [the IFPA].” N.J.S.A. 17:33A-7(a). Those
elements permit an insurer to seek money damages, and even treble damages. Attorneys’ fees, investigatory costs,
and costs of suit are, by definition, compensatory damages under the IFPA, and therefore a successful lawsuit
initiated by an insurance company will necessarily involve an award of damages. N.J.S.A. 17:33A-7(a). (pp. 22-24)
6. The Court has no reason to conclude that, in IFPA private-party actions, the Legislature intended a result
inconsistent with the demands of the State’s Constitution. When the Legislature provides for legal remedies, it can
be inferred that it “intended to authorize a jury trial.” Zorba Contractors, Inc. v. Housing Authority of Newark, 362
N.J. Super. 124, 138 (App. Div. 2003). The right to a jury trial is implied in the IFPA, just as it is in the CFA. The
right to a jury trial under Article I, Paragraph 9 of the New Jersey Constitution is triggered because the IFPA
provides legal relief in the form of compensatory and punitive damages and because an IFPA claim is comparable to
common-law fraud. (pp. 24-29)
7. The availability of common-law equitable remedies, in addition to legal remedies, cannot extinguish the right to a
jury trial. If the jury finds that the insurance companies are entitled to legal remedies because of violations of the
IFPA, the resolution of the equitable remedies-- a declaration that fraudulent benefits do not have to be paid,
disgorgement of benefits paid, constructive trusts and equitable liens on defendants’ assets -- will be guided
accordingly. Because the private-party legal claims predominate, the Court need not address Sailor, supra, 355 N.J.
Super. 315. In this private-party IFPA action, the right to a jury trial is compelled by Article I, Paragraph 9 of the
New Jersey Constitution. Also, the right to a jury trial is implied in the IFPA by the Legislature’s choice of legal
remedies and by the similarities between an IFPA action and common-law fraud. (pp. 29-31)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for proceedings consistent with the Court’s opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE FERNANDEZ-VINA
did not participate.
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SUPREME COURT OF NEW JERSEY
A-70 September Term 2013
073511
ALLSTATE NEW JERSEY INSURANCE
COMPANY, ALLSTATE INSURANCE
COMPANY, ALLSTATE INDEMNITY
COMPANY, ALLSTATE PROPERTY
AND CASUALTY INSURANCE
COMPANY, ALLSTATE NEW JERSEY
PROPERTY AND CASUALTY
INSURANCE COMPANY AND
ENCOMPASS INSURANCE, f/k/a
CONTINENTAL INSURANCE
COMPANY, and COMMERCIAL
INSURANCE COMPANY OF NEWARK,
NJ,
Plaintiffs-Respondents,
v.
GREGORIO LAJARA; PEDRO
GONZALEZ; MILEYDIS T. DIAZ
a/k/a MILLY DIAZ; AWILDA D.
RODRIGUEZ a/k/a AWILDA D.
GONZALEZ; KENNETH J. VIAFORA;
JOSE ORLANDO HERNANDEZ;
FRANCISCA HERNANDEZ;
FRANCISCO CABA; AQUALINA
RAMOS; ASHRAF Y. AZIR;
MUHAMMAD A. SHAMSHAIR;
MICHAEL C. GOLOWSKI; ELVIA
BEDOYA; NYDIA MARTINEZ;
NEREDA ZUNIGA; ALEXANDRA
GALLEGOS; BIBARS KAGHDOU,
D.C.; STEPHEN LOMANTO, D.C.;
DAVID STEPHENS, D.C.; THOMAS
J. BONACUSO, D.C., MICHAEL
CARLESIMO, D.C.; BRYAN
SIEGEL, D.C.; KEITH
LEWANDOWSKI, D.C.; WEI JU;
LUCY LIU; JIANMIN LI, a/k/a
JIAN MIN LI; SHAN S.
NAGENDRA, M.D.; ALEKSANDR
LEVIN, M.D.; MANOJ D.
1
PATHARKAR, M.D.; ALFRED REZK
TAWADROUS, M.D.; HOWARD
KESSLER, M.D.; NATALIO
DAMIEN, M.D.; DAVID WALKER,
ESQ.; MEDICO MANAGEMENT CO.,
INC.; UNION COLLECTIONS, LLC;
PLAINFIELD MEDICAL
MANAGEMENT, INC.; SPINAL
ADJUSTMENT CENTER, P.C. f/k/a
SPINAL ADJUSTMENT CENTER,
INC.; RAHWAY SPINAL INJURY
P.C. f/k/a RAHWAY SPINAL
CENTER CORP.; ADVANCED SPINAL
CARE, P.C.; MILLENNIUM TOTAL
HEALTH, P.C.; ALEVE
CHIROPRACTIC, P.C.; IN-LINE
CHIROPRACTIC, P.C.; BAYVIEW
HEALTH, P.C.; a/k/a BAYVIEW
HEALTH SERVICE, P.C.; BOUND
BROOK CHIROPRACTIC, P.C.; NEW
WAVE CHIROPRACTIC, P.C.;
ABSOLUTE CHIROPRACTIC, P.C.;
BACK PAIN P.C.; AM PAIN CARE,
P.C.; ACUPUNCTURE ACADEMY
P.C.; TCM ACUPUNCTURE P.C.;
AMERICAN ACUPUNCTURE ACADEMY,
P.C.; CONVERY MEDICAL GROUP,
P.C.; RARITAN PAIN MANAGEMENT
AND REHAB CENTER, P.C.;
ASBURY MEDICAL AND
REHABILITATION P.C.; PAIN
MANAGEMENT ASSOCIATES OF
CENTRAL JERSEY, P.A.; BEST
HEALTH MEDICAL, P.C.; PERTH
AMBOY HEALTH CARE, LLC d/b/a
“PERTH AMBOY DIAGNOSTIC
IMAGING”; LIBERTY SUPPLIES,
L.L.C.; K-MED SERVICES, INC.;
PRESTIGE MEDICAL SUPPLIES,
LLC; THERAPEUTIC DEVICES,
INC.,
Defendants,
and
2
A.P. DIAGNOSTIC IMAGING, INC.
and DR. HARSHAD PATEL,
Defendants-Appellants.
Argued January 5, 2015 – Decided July 16, 2015
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 433
N.J. Super. 20 (App. Div. 2013).
Carl A. Salisbury argued the cause for
appellants (Kilpatrick Townsend & Stockton,
attorneys).
Thomas O. Mulvihill argued the cause for
respondents (Pringle Quinn Anzano,
attorneys).
JUSTICE ALBIN delivered the opinion of the Court.
In this appeal, we must decide whether a civil defendant
sued by an insurance company for violating the Insurance Fraud
Prevention Act (IFPA), N.J.S.A. 17:33A-1 to -30, has a right to
trial by jury. The trial court determined that, in an action
arising under the IFPA, neither the statutory scheme nor the New
Jersey Constitution grants a civil defendant the right to a jury
trial. The Appellate Division affirmed. Allstate N.J. Ins. Co.
v. Lajara, 433 N.J. Super. 20, 44 (App. Div. 2013).
We now reverse. The right to a civil jury trial is one of
the oldest and most fundamental of rights. It predates the
founding of our Republic, is enshrined in the Federal Bill of
Rights, and is part of the fabric of all three of New Jersey’s
Constitutions. A jury trial is self-government at work in our
3
constitutional system, and a verdict rendered by one’s peers is
the ultimate validation in a democratic society.
In determining whether the jury-trial right applies to a
statutory cause of action, we assess whether the grant of a jury
trial is consistent with our common-law tradition. An IFPA
claim meets that standard because compensatory and punitive
damages are legal -- not equitable -- in nature and because the
elements necessary to prove an IFPA claim are similar to common-
law fraud.
By this measure, we conclude that the right to a civil jury
trial provided by Article I, Paragraph 9 of the New Jersey
Constitution applies to private-action claims seeking
compensatory and punitive damages under the IFPA. We also
presume that the Legislature, in passing the IFPA, intended the
statutory scheme to conform to the Constitution. We therefore
remand to the trial court to allow defendants in this case to
exercise their right to a jury trial.
I.
A.
In December 2008, plaintiffs Allstate New Jersey Insurance
Company and affiliated companies, Encompass Insurance, and
Commercial Insurance Company of Newark, New Jersey, filed a 604-
paragraph complaint alleging that sixty-three defendants
4
violated the IFPA.1 The sixty-three defendants include
physicians and chiropractors; medical, imaging, and pain-
management practices; medical equipment and billing companies;
employees, owners, and shareholders of those practices and
companies; and an attorney and unlicensed individuals.
The complaint alleges that defendants engaged in a “broad,
multi-faceted scheme to defraud” plaintiffs of $8.14 million in
personal injury protection benefits under the New Jersey
Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -35.
According to the complaint, defendants played different roles
and engaged in singular and multiple fraudulent acts in this
far-reaching scheme. Unlicensed defendants provided “purported
healthcare services” through companies that concealed their true
status. Defendants provided unnecessary care and prescribed
unnecessary medical equipment, engaged in fraudulent testing of
patients, misrepresented test results and patients’ symptoms,
and unlawfully split fees and concealed prohibited self-
referrals -- all for the purpose of wrongly securing or
enhancing recoveries for claimants or price gouging. The
complaint also contends that some defendants paid fees to
1 Also included as plaintiffs are Allstate Insurance Company,
Allstate Indemnity Company, Allstate Property and Casualty
Insurance Company, and Allstate New Jersey Property and Casualty
Insurance Company.
5
individuals who staged accidents, created fraudulent medical
records and bills, and recruited persons involved in accidents
who suffered either minor or no injuries.
Plaintiffs sought various forms of relief: payment of
compensatory damages, treble damages, and attorneys’ fees under
the IFPA; a declaration that allegedly fraudulent benefits do
not have to be paid; disgorgement of benefits paid; and
constructive trusts and equitable liens on defendants’ assets.
Although plaintiffs demanded a jury trial in the complaint,
they later moved to withdraw that demand. That motion was
opposed by defendants A.P. Diagnostic Imaging, Inc. and Dr.
Harshad Patel, who are parties to this appeal, as well as by
other defendants.2
B.
The trial court granted plaintiffs’ motion to withdraw
their jury-trial demand and denied defendants’ request for trial
by jury. The court determined that State v. Sailor, 355 N.J.
Super. 315 (App. Div. 2001), was “the controlling precedent.”
2The Commissioner of Banking and Insurance, who had earlier
intervened in the suit, moved to strike the jury demand as it
related to the Commissioner’s claims. See N.J.S.A. 17:33A-7(d)
(authorizing Commissioner to join in insurance company’s private
action, in order to recover civil penalties authorized by
N.J.S.A. 17:33A-5). No party contends that there is a right to
a jury trial on the Commissioner’s claims. See State v. Sailor,
355 N.J. Super. 315, 322 (App. Div. 2001). The Commissioner is
not a party to this appeal.
6
In that case, the State brought an action under the IFPA against
an individual defendant for giving false information to an
insurance carrier regarding an automobile accident. Id. at 318-
19. The State sought restitution on the claim paid to the
defendant. Id. at 318. The Appellate Division determined that
the plaintiff was not entitled to a jury trial because the Act
did not expressly provide such a right and because the remedy at
issue was equitable in nature. Id. at 322-23. The trial court
ruled that “Sailor makes clear that the issue turns on the fact
that the remedies available under the [IFPA] are in the form of
restitution, an equitable form of relief,” and therefore at
common law plaintiffs would not have been entitled to a jury
trial.
Defendants filed a motion for leave to appeal.
C.
The Appellate Division granted leave to appeal and
affirmed the trial court’s denial of defendants’ demand of a
jury trial. Allstate, supra, 433 N.J. Super. at 27, 44. The
panel held that, in an insurer’s action under N.J.S.A. 17:33A-7,
the IFPA contains no express right to a jury. Id. at 38. It
also declined to find an implied right from the statute’s
silence. Ibid.
Additionally, the panel found that defendants did not
possess a constitutional jury-trial right. Id. at 42. The
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panel acknowledged that, “‘[g]enerally, the New Jersey
Constitution protects the right of trial by jury in legal, but
not equitable, actions.’” Id. at 41 (quoting Ins. Co. of N. Am.
v. Anthony Amadei Sand & Gravel, Inc., 162 N.J. 168, 176
(1999)). However, it determined that the insurers’ claims under
the IFPA more closely resemble an equitable action for which
there is no jury-trial right. The panel noted that “[t]he
remedy sought ‘remains the most persuasive factor.’” Ibid.
(quoting Jersey Cent. Power & Light Co. v. Melcar Util. Co.
(JCP&L), 212 N.J. 576, 589 (2013)). With that in mind, the
panel maintained that the monetary relief “denominated as
compensatory damages” under N.J.S.A. 17:33A-7(a) “is in the
nature of restitution,” which is typically an equitable remedy.
Id. at 43. Moreover, based on a historical view of the common
law, the panel concluded that a private-party action under the
IFPA “is significantly different from legal fraud” and “is more
akin to equitable fraud, to which no jury trial right attaches.”
Ibid. Accordingly, the panel “discern[ed] no constitutional
right to a trial by jury for private claims under the [IFPA].”
Id. at 44.
This Court granted defendants’ motion for leave to appeal.
II.
A.
Defendants, Dr. Harshad Patel and A.P. Diagnostic Imaging,
8
Inc., contend that the Appellate Division erred in holding that
a defendant in a private action under the IFPA has no right to a
jury trial. Defendants point to Zorba Contractors, Inc. v.
Housing Authority of Newark, 362 N.J. Super. 124 (App. Div.
2003), in which the Appellate Division found an implied
statutory right to a jury trial under the Consumer Fraud Act
(CFA), N.J.S.A. 56:8-1 to -109. Defendants maintain that the
elements and remedies (compensatory damages, treble damages, and
attorneys’ fees) in a CFA claim are nearly identical to those in
an IFPA claim. They argue that an IFPA claim is more akin to
common-law fraud than equitable fraud. They emphasize that in
Zorba, supra, 362 N.J. Super. at 138, the Appellate Division
classified the CFA remedies as the “hallmark of a legal action.”
Defendants further stress that in JCP&L, supra, 212 N.J. 576, we
adopted Zorba’s reasoning for determining when a jury trial is
mandated.
B.
In contrast, plaintiffs argue that the remedies available
under the IFPA are equitable in nature and, accordingly, there
is no right to a jury trial under the IFPA. They assert that
the differences between the IFPA and the CFA make Zorba’s
analysis inapplicable. Plaintiffs submit that “damages are not
an element of a cause of action under the IFPA” and that “the
Legislature specifically described the [IFPA’s] damages” as a
9
form of restitution, thus signaling that their claim sounds in
equity. They highlight that the wording of the IFPA states that
“the court” -- not a jury -- makes the fact-finding on the award
of treble damages. Additionally, plaintiffs reject the idea
that the prior use of jury trials in IFPA cases suggests an
implied right to a jury trial. According to plaintiffs, the
“entire history of the IFPA” suggests that the statute’s
drafters wanted to avoid the “delays and inefficiencies” that
come with jury trials in combatting insurance fraud. In
addition, plaintiffs posit that the complaint made by the State,
as an intervenor in the IFPA action, must be decided by the
court and therefore combining all claims in a bench trial “will
result in numerous procedural efficiencies.” Finally,
plaintiffs assert that “a right to a jury trial is not
constitutionally required because the cause of action available
under the IFPA is distinctive from common law fraud.”
III.
Our task is to determine whether the right to a jury trial
in a private action brought under the IFPA is implicit in the
statutory scheme or, alternatively, is mandated by Article I,
Paragraph 9 of the New Jersey Constitution. N.J. Const. art. I,
¶ 9 (“The right of trial by jury shall remain inviolate[.]”).
In interpreting a statute or the Constitution, our review is de
novo. Farmers Mut. Fire Ins. Co. of Salem v. N.J. Prop.-Liab.
10
Ins. Guar. Ass’n, 215 N.J. 522, 535 (2013). As such, we owe no
deference to the interpretive conclusions of the trial court or
Appellate Division. Murray v. Plainfield Rescue Squad, 210 N.J.
581, 584 (2012).
IV.
The issue before us is whether defendants in a private
action brought under the IFPA have a right to trial by jury.
Resolving that issue requires an understanding of the historical
development and importance of the jury-trial right in our
constitutional scheme.
A.
The right to a jury trial is deeply rooted in the English
common law and traces its origins as far back as the Magna
Carta. See Duncan v. Louisiana, 391 U.S. 145, 151, 88 S. Ct.
1444, 1448, 20 L. Ed. 2d 491, 497 (1968). The common-law
tradition of trial by jury was carried over to the American
colonies and, in time, took the form of a fundamental right.
Lyn-Anna Props. v. Harborview Dev. Corp., 145 N.J. 313, 318-19
(1996). In the Seventeenth Century, the provinces of West and
East Jersey codified the jury-trial right in two separate
enactments, one stating that “the tryals of all causes, civil
and criminal, shall be heard and decided by the virdict or
judgment of twelve honest men of the neighbourhood,” The
Concessions and Agreements of the Proprietors, Freeholders and
11
Inhabitants of the Province of West New-Jersey, in America,
Chap. XXII (1676), and the other stating that “all trials shall
be by the verdict of twelve men,” East Jersey House of
Representatives’ 1699 Declaration of Rights and Privileges
(1699). In New Jersey, as in the other colonies, the right to
trial by jury retained its hold in the years preceding the
American Revolution. In its 1774 Declaration of Rights, the
first Continental Congress proclaimed, “‘the respective colonies
[were] entitled to the common law of England, and more
especially to the great and inestimable privilege of being tried
by their peers.’” Parklane Hosiery Co. v. Shore, 439 U.S. 322,
340 n.3, 99 S. Ct. 645, 656 n.3, 58 L. Ed. 2d 552, 568 n.3
(1979) (Rehnquist, J., dissenting) (quoting 1 Journals of the
Continental Congress 69 (1904 ed.)).
One of the precipitating causes of the American Revolution
was the British Parliament’s passage of Acts that extended the
jurisdiction of the admiralty courts “beyond their antient
limits thereby depriving [the colonists] of the inestimable
right of trial by jury” and thus subjecting the colonists “to
the arbitrary decision of a single and dependent judge.” Reid
v. Covert, 354 U.S. 1, 29 n.51, 77 S. Ct. 1222, 1237 n.51, 1 L.
Ed. 2d 1148, 1170 n.51 (1957) (quoting Thomas Jefferson, 2
Journals of the Continental Congress 132 (Ford ed.)). Indeed,
one of the specific grievances listed in the Declaration of
12
Independence was that the Crown had deprived the colonists “in
many cases, of the benefits of Trial by Jury.” The Declaration
of Independence para. 3 (U.S. 1776).
The right to trial by jury was foremost in the minds of the
drafters of New Jersey’s first Constitution. Ratified on July
2, 1776, just two days before the Declaration of Independence,
the New Jersey Constitution declared “that the inestimable right
of trial by jury shall remain confirmed, as a part of the law of
this colony, without repeal, forever.” N.J. Const. (1776) art.
XII; see Wood v. N.J. Mfrs. Ins. Co., 206 N.J. 562, 574 (2011).
That bedrock principle was reaffirmed in our 1844 and 1947
Constitutions, both of which proclaimed that “[t]he right of
trial by jury shall remain inviolate.” N.J. Const. (1844) art.
I, § 7; N.J. Const. (1947) art. I, ¶ 9.
The right of a civil jury trial is preserved in our
national charter as the Seventh Amendment to the United States
Constitution.3 U.S. Const. amend. VII. The Seventh Amendment’s
“guarantee of a jury trial in civil cases” extends only to
3 The Seventh Amendment provides:
In Suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and
no fact tried by a jury, shall be otherwise
re-examined in any Court of the United States,
than according to the rules of the common law.
[U.S. Const. amend. VII.]
13
federal trials because the Seventh Amendment has not been made
applicable to the States through the Fourteenth Amendment’s Due
Process Clause. See In re Application of LiVolsi, 85 N.J. 576,
587 n.7 (1981). Thus, “the right to a trial by jury in New
Jersey must arise under either a statute or the state
constitution.” In re Envtl. Ins. Declaratory Judgment Actions,
149 N.J. 278, 292 (1997).
B.
Neither the Seventh Amendment nor New Jersey’s
constitutional counterpart was ever intended to guarantee a
right to a jury trial in all civil cases. Thus, “the thrust of
the [Seventh] Amendment was to preserve the right to jury trial
as it existed in 1791” -- the time of the Amendment’s
ratification. Curtis v. Loether, 415 U.S. 189, 193-94, 94 S.
Ct. 1005, 1007, 39 L. Ed. 2d 260, 265 (1974). At that time, the
right to a jury trial did not extend to matters falling within
the jurisdiction of the admiralty courts or equity courts,
“where equitable rights alone were recognized, and equitable
remedies were administered.” Id. at 193, 94 S. Ct. at 1008, 39
L. Ed. 2d at 265-66 (internal quotation marks omitted). The
jury-trial right did apply to all common-law “suits in which
legal rights were to be ascertained and determined.” Ibid.
(internal quotation marks omitted). Not surprisingly, federal
and New Jersey jurisprudence are in agreement on this point.
14
Lyn-Anna Props., supra, 145 N.J. at 318-19. The historical
annals do not suggest that the drafters of the 1776 New Jersey
Constitution and the 1791 Federal Bill of Rights had different
conceptions of the scope of the right to a civil jury trial.
The United States Supreme Court has given an expansive
interpretation of the Seventh Amendment, finding that the right
to a jury trial extends “beyond the common-law forms of action
recognized” at the time of the Constitution’s ratification to
new statutory causes of action, provided those statutes
“create[] legal rights and remedies, enforceable in an action
for damages in the ordinary courts of law.” Curtis, supra, 415
U.S. at 193-94, 94 S. Ct. at 1007-08, 39 L. Ed. 2d at 265-66.
C.
Under New Jersey’s constitutional jurisprudence, the right
to a jury trial applies to causes of action -- even statutory
causes of action -- that sound in law rather than equity.
JCP&L, supra, 212 N.J. at 589. The federal courts look almost
exclusively to whether the remedy is legal in nature in
determining whether a party has a right to a jury. Curtis,
supra, 415 U.S. at 197, 94 S. Ct. at 1010, 39 L. Ed. 2d at 268
(stating that in Title VII cases compensatory and punitive
damages constitute legal, not equitable, relief).
New Jersey courts have taken a slightly different approach,
considering not only the nature of the relief -- the remedy --
15
but also the historical basis for the cause of action. JCP&L,
supra, 212 N.J. at 589; Wood, supra, 206 N.J. at 575. This
second factor examines whether the cause of action resembles one
that existed in common law. See JCP&L, supra, 212 N.J. at 593-
94; Zorba, supra, 362 N.J. Super. at 139-40. Nevertheless, the
nature of the remedy “‘remains the most persuasive factor.’”
JCP&L, supra, 212 N.J. at 589 (quoting Weinisch v. Sawyer, 123
N.J. 333, 344 (1991)). The weight given to the remedy makes it
unlikely that our courts and federal courts will diverge in the
types of cases in which a jury trial would be available.
V.
A.
The IFPA was enacted to “confront aggressively the problem
of insurance fraud.” N.J.S.A. 17:33A-2. In pursuit of that
goal, the “IFPA interdicts a broad range of fraudulent conduct.”
Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 172 (2006).
The IFPA provides, in relevant part, that a “person or
practitioner” violates the Act when he
(1) [p]resents or causes to be presented any
written or oral statement as part of, or in
support of or opposition to, a claim for
payment or other benefit pursuant to an
insurance policy . . . knowing that the
statement contains any false or misleading
information concerning any fact or thing
material to the claim; or
(2) [p]repares or makes any written or oral
statement that is intended to be presented to
16
any insurance company, . . . in connection
with, or in support of or opposition to any
claim for payment or other benefit pursuant to
an insurance policy . . . knowing that the
statement contains any false or misleading
information concerning any fact or thing
material to the claim; or
(3) [c]onceals or knowingly fails to disclose
the occurrence of an event which affects any
person’s initial or continued right or
entitlement to (a) any insurance benefit or
payment or (b) the amount of any benefit or
payment to which the person is entitled[.]
[N.J.S.A. 17:33A-4(a)(1), (2), (3).]
The IFPA authorizes two separate causes of action to
enforce the statutory scheme -- one a State action brought by
the Commissioner of Banking and Insurance, N.J.S.A. 17:33A-5,4
and the other a private civil action brought by insurers
“damaged as the result of a violation of any provision of [the
IFPA],” N.J.S.A. 17:33A-7. The right to a jury trial in a
private civil action is the only issue in this case.
Under the IFPA, “[a]ny insurance company damaged as the
result of a violation of [the Act] may sue . . . to recover
compensatory damages, which shall include reasonable
4 The IFPA permits the Commissioner to bring a civil action
seeking monetary penalties, ranging from “not more than $5,000
for the first violation, $10,000 for the second violation and
$15,000 for each subsequent violation”; “restitution to any
insurance company or other person who has suffered a loss as a
result of a[n] [IFPA] violation”; and attorneys’ fees and costs.
N.J.S.A. 17:33A-5.
17
investigation expenses, costs of suit and attorneys fees.”
N.J.S.A. 17:33A-7(a). Moreover, an insurance company “shall
recover treble damages if the court determines that the
defendant has engaged in a pattern of violating [the IFPA].”
N.J.S.A. 17:33A-7(b). The IFPA does not set forth equitable
remedies for private-party insurance actions. That, however,
does not preclude insurance companies from seeking equitable
remedies available at common law. See Brenner v. Berkowitz, 134
N.J. 488, 516 (1993) (stating that “courts are not limited to
the statutory remedies, but have a wide array of equitable
remedies available to them”).
Like the Consumer Fraud Act, N.J.S.A. 56:8-1 to -109, the
IFPA does not expressly confer the right to a jury trial. The
absence of express language is just the start of the analysis.
Because we presume that the Legislature intended to act in
conformity with the Constitution, the statutory and
constitutional analysis is closely aligned. We must determine
whether the remedies in a private action under the IFPA are
legal in nature and whether the cause of action is similar to
one recognized under the common law.
B.
We begin by examining the “‘the most persuasive factor’” --
the remedy available to insurance companies. See JCP&L, supra,
212 N.J. at 589 (quoting Weinisch, supra, 123 N.J. at 344). The
18
IFPA authorizes an insurance company to pursue compensatory and
treble damages against a violator. N.J.S.A. 17:33A-7(a), (b).
Under the IFPA, “compensatory damages” include not only actual
damages, but also “reasonable investigation expenses, costs of
suit and attorneys fees.” N.J.S.A. 17:33A-7(a). Treble damages
are intended to punish, and only partly to compensate, and
therefore have the classic features of punitive damages.
Liberty Mut., supra, 186 N.J. at 185 (noting that purpose of
treble damages under Consumer Fraud Act is “to punish the
wrongdoer” (internal quotation marks omitted)). Under the IFPA,
compensatory damages, including attorneys’ fees and costs, are
trebled “if the court determines that the defendant has engaged
in a pattern of violating th[e] [A]ct.” N.J.S.A. 17:33A-7(a),
(b). Because only the first third of a treble-damages award is
intended to compensate the victim for actual damages, the
remaining award is clearly in the nature of punitive damages.
Wanetick v. Gateway Mitsubishi, 163 N.J. 484, 494-96 (2000)
(indicating that award of treble damages under Consumer Fraud
Act is form of punitive damages); Zorba, supra, 362 N.J. Super.
at 138 (same).
Monetary damages, such as compensatory and punitive
damages, are a typical form of legal relief -- “the traditional
form of relief offered in the courts of law.” Curtis, supra,
415 U.S. at 196-97, 94 S. Ct. at 1009-10, 39 L. Ed. 2d at 267-
19
68; see also Wood, supra, 206 N.J. at 578 (characterizing claim
for “money damages” as “invok[ing] solely legal and not
equitable relief”); Zorba, supra, 362 N.J. Super. at 138 (“[T]he
forms of relief specifically authorized by N.J.S.A. 56:8-19 [of
the Consumer Fraud Act] are monetary -- compensatory damages,
trebling of those damages and attorneys fees -- which is a
hallmark of a legal action.”).
In contrast, equitable processes “‘are available only to
the party who cannot have a full measure of relief at law.’”
Wood, supra, 206 N.J. at 578 (quoting Bolte v. Rainville, 138
N.J. Eq. 508, 512 (E. & A. 1946)). “Equitable remedies ‘are
distinguished for their flexibility, their unlimited variety,
their adaptability to circumstances . . . . [T]he court of
equity has the power of devising its remedy and shaping it so as
to fit the changing circumstances of every case and the complex
relations of all the parties.’” US Bank Nat’l Ass’n v.
Guillaume, 209 N.J. 449, 476 (2012) (quoting Sears, Roebuck &
Co. v. Camp, 124 N.J. Eq. 403, 411-12 (E. & A. 1938)). A few
examples of equitable actions are specific performance of a
contractual obligation, partition, rescission of a contract,
labor-strike injunctions, quiet-title matters, declarations of
incapacity, and injunctive restraints of a nuisance. See
generally William A. Dreier & Paul A. Rowe, Guidebook to
Chancery Practice in New Jersey (8th ed. 2012).
20
By any measure, the relief available to insurance companies
in IFPA actions -- compensatory damages, treble damages, and
attorneys’ fees and costs -- is legal in nature.
C.
In determining the right to a jury trial, the other prong
of our analysis is whether the statutory cause of action
authorized by the IFPA is comparable to an action known at
common law. See JCP&L, supra, 212 N.J. at 593-96 (comparing
claim filed pursuant to Underground Facility Protection Act
(UFPA), N.J.S.A. 48:2-73 to -91, to common-law negligence cause
of action); Zorba, supra, 362 N.J. Super. at 139-40 (comparing
CFA claim to common-law fraud action).
In JCP&L, supra, we found that a cause of action for
property damages arising under a provision of the Underground
Facility Protection Act, N.J.S.A. 48:2-80(d), was similar to
common-law negligence because it “impose[d] liability on the
excavator for any negligent damage to an operator’s underground
facility.” 212 N.J. at 583, 593-96 (emphasis added). We
concluded that the Act’s requirement that property-damage claims
of less than $25,000 be submitted for mandatory, binding
arbitration to the Office of Dispute Settlement within the
Office of the Public Defender violated New Jersey’s
constitutional right to a jury trial. Id. at 583-84, 600. We
reached that conclusion because the statutory cause of action
21
was based on “principles of common-law negligence” and provided
for monetary damages. Id. at 593-94, 596. We thus held that
“[t]he Legislature was not at liberty to ignore the right to a
civil jury trial for property damages when enacting the
[Underground Facility Protection Act].” Id. at 596.
In JCP&L, supra, 212 N.J. at 592-93, we cited favorably to
Zorba, supra, 362 N.J. Super. at 128-30, in which the Appellate
Division held that private-party claimants have a right to a
jury trial when seeking damages under the CFA, N.J.S.A. 56:8-19.
In Zorba, supra, the Appellate Division concluded that, “even
though the Legislature did not specifically refer to the right
to a jury trial,” that right was implied in private actions
under the CFA because the relief authorized was “legal in
nature.” 362 N.J. Super. at 138-39. That conclusion was
buttressed “by the close relationship between the private cause
of action [under the CFA] and common-law fraud.” Id. at 139.
Significantly, we have observed that “[t]he closest statutory
analogue to [the] IFPA in New Jersey is the Consumer Fraud Act.”
Liberty Mut., supra, 186 N.J. at 176.
VI.
A.
A private-party action brought under the IFPA resembles a
cause of action for common-law fraud. The elements of common-
law fraud are “(1) a material misrepresentation of a presently
22
existing or past fact; (2) knowledge or belief by the defendant
of its falsity; (3) an intention that the other person rely on
it; (4) reasonable reliance thereon by the other person; and (5)
resulting damages.” Banco Popular N. Am. v. Gandi, 184 N.J.
161, 172-73 (2005) (internal quotation marks omitted).
To succeed on an IFPA claim, an insurance company must
demonstrate that: (1) the defendant “presented” a “written or
oral statement”; (2) the defendant knew that the statement
contained “false or misleading information”; and (3) the
information was “material” to “a claim for payment or other
benefit pursuant to an insurance policy or the Unsatisfied Claim
and Judgment Fund Law.” N.J.S.A. 17:33A-4(a)(1). The insurance
company must also prove a fourth element -- that it was “damaged
as the result of a violation of [the IFPA].” N.J.S.A. 17:33A-
7(a). The presence of those elements permits an insurer to seek
money damages, and even treble damages if “the defendant has
engaged in a pattern of violating [the IFPA].” N.J.S.A. 17:33A-
7(a), (b). Notably, attorneys’ fees, investigatory costs, and
costs of suit are, by definition, compensatory damages under the
IFPA, and therefore a successful lawsuit initiated by an
insurance company will necessarily involve an award of damages.
N.J.S.A. 17:33A-7(a).
The only element of a claim for common-law fraud absent
from an IFPA claim is reliance by the plaintiff on the false
23
statement. Although an IFPA claim does not precisely match all
of the elements of common-law fraud, neither does it match all
of the elements of equitable fraud. Equitable fraud does not
require proof that a defendant knew of the falsity of a
statement, Jewish Ctr. of Sussex Cnty. v. Whale, 86 N.J. 619,
624-25 (1981) -- an element that must be established in a
private-action claim under the IFPA.5
Perfect alignment between the elements of an IFPA claim and
common-law fraud is not necessary to trigger the right to a jury
trial. As the Appellate Division pointed out in Zorba, supra:
a “noteworthy difference between the [Consumer Fraud Act and
common-law fraud] causes of action is that ‘common law fraud
requires proof of reliance while consumer fraud requires only
proof of a causal nexus between the concealment of the material
fact and the loss.’” 362 N.J. Super. at 139 (quoting Varacallo
v. Mass. Mut. Life Ins. Co., 332 N.J. Super. 31, 43 (App. Div.
2000)). Nevertheless, a jury trial is required in a consumer-
fraud case despite the lack of complete symmetry between a CFA
claim and a common-law fraud claim.
B.
5 In a claim of equitable fraud, a plaintiff must only prove:
“(1) a material misrepresentation of a presently existing or
past fact; (2) the maker’s intent that the other party rely on
it; and (3) detrimental reliance by the other party.” First Am.
Title Ins. Co. v. Lawson, 177 N.J. 125, 136-37 (2003) (internal
quotation marks omitted).
24
The historical record of the early Republic suggests that
those who secured the right to a jury trial in New Jersey’s 1776
Constitution -- as well as this State’s two subsequent
Constitutions -- did not intend for that right to be given a
crabbed interpretation. New Jersey’s 1776 Constitution was
drafted at a time when Acts passed by the British Parliament
depriving colonists of their time-honored jury-trial rights were
of recent memory. The declaration in that first Constitution
that “the inestimable right to trial by jury shall remain
confirmed . . . without repeal, forever” was a promise to the
people and a message to lawmakers. The State’s subsequent
Constitutions have reinforced that original declaration.
The plaintiff insurance companies claim that the drafters
of the IFPA wanted to avoid the “delays and inefficiencies” of
jury trials. To be sure, other means of trying cases are more
expeditious and efficient than a jury trial. But those who gave
us the guarantee of trial by jury had their eye on a higher
value -- the validation that comes from a judgment of one’s
peers. We reject the insurance companies’ argument that a jury-
trial right is not implied in a private-party IFPA action.
We presume that the Legislature is aware that New Jersey’s
jury-trial right attaches to statutory actions that confer legal
remedies and resemble actions in common law. See Zorba, supra,
362 N.J. Super. at 138-39. In other words, we will presume, as
25
we must, that the Legislature intended to conform to the
Constitution. See Gallenthin Realty Dev., Inc. v. Borough of
Paulsboro, 191 N.J. 344, 359 (2007) (noting presumption that
“Legislature acted with existing constitutional law in mind and
intended the statute to function in a constitutional manner”
(internal quotation marks omitted)).
We have no reason to conclude that, in IFPA private-party
actions, the Legislature intended a result inconsistent with the
demands of our State Constitution. When the Legislature
provides for legal remedies, it can be inferred that it
“intended to authorize a jury trial.” Zorba, supra, 362 N.J.
Super. at 138; see also Lorillard v. Pons, 434 U.S. 575, 583, 98
S. Ct. 866, 871, 55 L. Ed. 2d 40, 47 (1978) (“We can infer . . .
that by providing specifically for ‘legal’ relief, Congress knew
the significance of the term ‘legal,’ and intended that there
would be a jury trial . . . .”).
The Legislature clearly understands the high, preferred
place of the right of trial by jury, as is clear from its
response to our decision in Shaner v. Horizon Bancorp., 116 N.J.
433 (1989). In Shaner, supra, the Court had to determine
whether, in the absence of express language granting the right
to a jury trial in a private-action case, such a right was
implied in the language of the Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49. 116 N.J. at 446. The LAD provided for
26
compensatory and punitive damages as well as equitable relief
for a victim of discrimination. N.J.S.A. 10:5-17. The Court
found no historical corollary in the common law to a LAD claim
and ultimately concluded, based on its analysis, that neither
the statute nor the New Jersey Constitution compelled a jury
trial in private-action LAD cases. Shaner, supra, 116 N.J. at
446, 455.
Seven months after the Shaner decision, the Legislature
amended the LAD to provide the right to a jury trial in private-
party LAD actions. L. 1990, c. 12, § 2 (codified as amended at
N.J.S.A. 10:5-13). The swiftness of the Legislature’s reaction
to this Court’s decision leads to the inference that the
amendment was curative, intended to express that the Legislature
actually meant to confer a jury-trial right despite its failure
to expressly say so. See 1A Norman J. Singer & J.D. Shambie
Singer, Sutherland Statutory Construction, § 22:31, at 375 (7th
ed. 2009) (noting that when amendment is expeditiously adopted
to overturn judicial interpretation of statute, courts may
“logically conclude that a[n] amendment was adopted to make
plain what the legislation had been all along from the time of
the statute’s original enactment”).
We find that the right to a jury trial is implied in the
IFPA, just as it is in the CFA. See Zorba, supra, 362 N.J.
Super. at 138-39. In summary, the right to a jury trial under
27
Article I, Paragraph 9 of the New Jersey Constitution is
triggered because the IFPA provides legal relief in the form of
compensatory and punitive damages and because an IFPA claim is
comparable to common-law fraud.
C.
We reject Allstate’s argument that the Legislature did not
intend the jury to act as the fact-finder in an IFPA case
because N.J.S.A. 17:33A-7(b) states that the claimant “shall
recover treble damages if the court determines that the
defendant has engaged in a pattern of violati[ons].” (Emphasis
added). First, the statute does not consign to the “court” the
determination of facts for actual damages. Second, the term
“court” is not inconsistent with the jury serving as fact-
finder. See Curtis, supra, 415 U.S. at 189, 198, 94 S. Ct. at
1006, 1010, 39 L. Ed. 2d at 263, 268-69 (stating that Seventh
Amendment jury right applies to Section 812 of Civil Rights Act
of 1968, 42 U.S.C. § 3612, even though statute grants “court”
ability to “grant relief, as it deems appropriate”); Sibley v.
Fulton Dekalb Collection Serv., 677 F.2d 830, 832-33 (11th Cir.
1982) (“In this case, we likewise choose to interpret the word
‘court’ to encompass trial by both judge and jury. This
interpretation serves to avoid the serious constitutional
questions that would be raised under the seventh amendment if we
adopted a construction of the [Fair Debt Collection Practices]
28
Act that prohibited trial by jury.”); Rucker v. Wabash R.R. Co.,
418 F.2d 146, 152 (7th Cir. 1969) (“The term ‘court’ need not
always be construed as referring to the judge in the performance
of his duties. It also has an institutional meaning and may
sometimes refer to the deliberative body of jurors.”).
Thus, we cannot conclude that the Legislature intended non-
jury trials because of the singular reference to “court” in
reference to trebling damages.
D.
We do not agree with plaintiffs that the statutory legal
claims they advanced are ancillary to their equitable claims --
equitable claims that do not rise under the IFPA. The
availability of common-law equitable remedies, in addition to
legal remedies, cannot extinguish the right to a jury trial. If
the jury finds that the insurance companies are entitled to
legal remedies because of violations of the IFPA, the resolution
of the equitable remedies -- a declaration that fraudulent
benefits do not have to be paid, disgorgement of benefits paid,
constructive trusts and equitable liens on defendants’ assets --
will be guided accordingly. “When equitable claims or defenses
are lodged in what is predominantly a dispute at law, and when
the claims may be viewed separately without fear of inconsistent
determinations, the court must parse the equitable issues from
the legal issues presented to the jury.” Sun Coast Merch. Corp.
29
v. Myron Corp., 393 N.J. Super. 55, 86 (App. Div. 2007), certif.
denied, 194 N.J. 270 (2008). Here, the “ancillary equitable
issues may well be blazed by the jury’s resolution of the legal
issues.” See ibid. That is true also of the ancillary claims
filed by the Commissioner of Banking and Insurance for
violations of the IFPA regarding administrative penalties to be
imposed. See N.J.S.A. 17:33A-7(d) (“[T]he commissioner may join
in [an insurer’s] action for the purpose of seeking judgment for
the payment of a civil penalty authorized under [N.J.S.A.
17:33A-5].”). Because the private-party legal claims
predominate, we need not address Sailor, supra, 355 N.J. Super.
315, which denied the right to a jury trial for an IFPA action
brought by the State seeking administrative penalties.
Accordingly, the jury will decide those issues that fall
within its domain, and the court those issues falling within its
compass.
E.
Last, a jury trial in an IFPA action is not a recent advent
or a break from a long-accepted practice of bench trials. IFPA
claims have been tried before juries since at least 1994. See,
e.g., Liberty Mut., supra, 186 N.J. at 165-66 (determining
proper standard of proof in private action brought under IFPA on
appeal following jury trial and remanding case to Law Division,
which conducted second jury trial); Bldg. Materials Corp. of Am.
30
v. Allstate Ins. Co., 424 N.J. Super. 448, 487 (App. Div.)
(upholding jury charge given by trial court in private IFPA
claim), certif. denied, 212 N.J. 198 (2012); Harleysville Ins.
Co. v. Diamond, 359 N.J. Super. 34, 36 (Law Div. 2002)
(discussing standard of proof in jury trial proceeding under
IFPA); Thomas v. N.J. Ins. Underwriting Ass’n, 277 N.J. Super.
630, 633 (Law Div. 1994) (reviewing IFPA jury charge). The
Legislature’s acquiescence to this practice gives some
indication of its intent to allow jury trials in private-party
actions.
VII.
For the reasons expressed, in this private-party IFPA
action, the right to a jury trial is compelled by Article I,
Paragraph 9 of the New Jersey Constitution. We also find that
the right to a jury trial is implied in the IFPA by the
Legislature’s choice of legal remedies and by the similarities
between an IFPA action and common-law fraud. Accordingly, we
reverse the Appellate Division and remand to the Law Division
for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
ALBIN’s opinion. JUSTICE FERNANDEZ-VINA did not participate.
31
SUPREME COURT OF NEW JERSEY
NO. A-70 SEPTEMBER TERM 2013
ON APPEAL FROM Appellate Division, Superior Court
ALLSTATE NEW JERSEY INSURANCE
COMPANY, ET AL.,
Plaintiffs-Respondents,
v.
GREGORIO LAJARA, ET AL.,
Defendants,
and
A.P. DIAGNOSTIC IMAGING, INC.
and DR. HARSHAD PATEL,
Defendants-Appellants.
DECIDED July 16, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA -------------------- --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6