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

NOT FOR PUBLICATION WITHOUT THE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
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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,
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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.
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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.
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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.
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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.
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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
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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
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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
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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.
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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.
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