UCLEFT LLOYD et al. v. JUDITH M. LEE and ANDRE L. LEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1632-04T21632-04T2

UCLEFT LLOYD and BRIDGET (HAMILTON)

LLOYD, his wife

Plaintiffs-Respondents/Cross-Appellants,

v.

JUDITH M. LEE and ANDRE L. LEE,

Defendants,

and

RUTGERS CASUALTY INSURANCE COMPANY,

Defendant-Appellant/Cross-Respondent,

and

NEW JERSEY MANUFACTURERS INSURANCE COMPANY,

Defendant-Respondent.

_________________________________________

 

Submitted December 21, 2005 - Decided July 25, 2006

Before Judges Grall and Kimmelman.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

L-7123-02.

Pitman, Pitman, Mindas, Grossman and Lee,

attorneys for appellant/cross-respondent Rutgers Casualty Insurance Company (James P. Krupka, on the brief).

Davis, Saperstein & Salomon, attorneys

for respondents/cross-appellants Ucleft Lloyd and Bridget (Hamilton) Lloyd (Paul A.

Garfield, on the brief).

Chasan, Leyner & Lamparello, attorneys

for respondent New Jersey Manufacturers Insurance Company (John V. Mallon, on the brief).

PER CURIAM

Rutgers Casualty Insurance Company (RCIC) appeals from a final judgment entered after a bench trial in a consolidated action concerning RCIC's responsibility to provide Personal Injury Protection Benefits (PIP benefits) under a policy of insurance issued to Bridget Hamilton. Hamilton is the wife of Ucleft Lloyd, who is the injured pedestrian who sought PIP benefits under the RCIC policy. The judge determined that RCIC is obligated to provide the PIP benefits and required RCIC to pay counsel fees in the amount of $5,256.

RCIC appeals and argues that the judgment is not supported by the evidence. Because the judge's determination of responsibility is based on factual findings which are supported by the record and not clearly mistaken, we affirm. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

On December 10, 2001, Ucleft Lloyd was struck by a car while crossing a street in Jersey City. The car was driven by Andre L. Lee, owned by Judith M. Lee and insured under a policy issued by New Jersey Manufacturers Insurance Company (NJM). Lloyd's wife, Bridget Hamilton, owned two cars that were insured under a policy issued by RCIC.

Plaintiffs Lloyd and Hamilton filed a complaint that included counts alleging negligence by defendants Andre and Judith Lee. Those claims were resolved by settlement and are not at issue here.

Pertinent to this appeal, plaintiffs' complaint against the Lees also included counts alleging wrongful denial of PIP benefits by defendant RCIC, under a policy of insurance issued to Hamilton, and by defendant NJM, under a policy of insurance issued to Lee. NJM answered and filed a cross-claim for contribution and indemnification from RCIC. RCIC answered and filed a cross-claim against NJM for indemnification. In addition, RCIC filed a separate action alleging that Hamilton made material misrepresentations about her relationship with Lloyd in her application for and during the term of the policy and seeking judgment declaring the policy void. The actions were consolidated and tried to the court.

Lloyd and Hamilton married in 1992. They both testified about their stormy marriage and lengthy periods of separation during which Lloyd left the house and went to Florida. Lloyd had fathered children with other women during the course of the marriage, and Hamilton was never certain when he would be there. Hamilton owned the home in her own name. Hamilton carried medical insurance. Although Lloyd was covered by that medical insurance at one time, Hamilton had discontinued his coverage. Lloyd had a Florida driver's license but never had a New Jersey driver's license. Both Lloyd and Hamilton testified that they could not recall where Lloyd was living at the time she filed her application for a policy of insurance with RCIC.

In 2000 Lloyd was involved in an accident while driving one of Hamilton's cars. Hamilton filed a claim form listing Lloyd's address as hers, which she signed. She also filed an affidavit of no insurance on Lloyd's behalf in which she described Lloyd as her friend.

The parties stipulated to the following pertinent facts. Hamilton's application for a policy of automobile insurance issued by RCIC was dated November 19, 1999. In response to an inquiry about marital status, she checked a box indicating that she was separated. Lloyd "resided" with his wife Hamilton on the day he was struck by Lee's car, and he was injured in that accident.

On the basis of the evidence and stipulations the judge found the following facts. The application did not define the term separated. During the marriage Lloyd was a "transient resident." Hamilton was never certain when her husband would be in her home or if he would continue to live there when he returned. Lloyd did not have a license to drive issued by the State of New Jersey, and, consistent with the parties' stipulation, Lloyd "resided" with his wife Hamilton on December 21, 2001, the date of the accident.

With respect to RCIC's claim that Hamilton's policy of insurance was void because of misrepresentations in the initial application, the judge concluded that RCIC failed to establish that Hamilton misrepresented her marital status or the number of licensed drivers who resided in her home. With respect to Lloyd's entitlement to PIP benefits on December 10, 2001, she concluded that Lloyd resided in his wife's home on the day in question and was entitled to benefits.

On appeal RCIC presents two issues for our consideration.

I. DEFENDANT LLOYD FAILED TO DEMONSTRATE

AT TRIAL HIS LEGAL ENTITLEMENT TO PIP

BENEFITS FROM THE DEFENDANT HAMILTON'S

AUTOMOBILE INSURANCE POLICY ISSUED BY

PLAINTIFF RUTGERS CASUALTY INSURANCE

COMPANY.

II. EVEN IF THE DEFENDANTS HAD DEMONSTRATED

THAT DEFENDANT LLOYD WAS A FAMILY MEMBER RESIDING IN DEFENDANT HAMILTON'S HOUSEHOLD, PIP BENEFITS SHOULD HAVE BEEN DENIED PURSUANT TO THE HOLDING IN BASTIEN.

The argument raised in Point I overlooks RCIC's stipulation to the fact that Lloyd "resided" with his wife on the day of the accident. In light of that stipulation, the argument lacks sufficient merit to warrant any additional discussion in a written opinion. R. 2:11-3(e)(1)(E).

The argument raised in Point II is premised on the assumption that if Lloyd resided with Hamilton on the date of the accident, then she misrepresented her marital status as "separated" in her policy application. That argument assumes that Hamilton's status as "separated" remained constant between 1999 and 2001. The judge resolved that factual question against RCIC. She found that Hamilton's description of herself as "separated" stated her belief about the status of her marriage at that time, and, for that reason, was not a misrepresentation.

Without doubt, a material factual misrepresentation made in an application for insurance may justify rescission of a policy of insurance ab initio. Palisades Safety & Ins. Ass'n v. Bastien, 175 N.J. 144, 148 (2003). In determining whether there is a misrepresentation, however, "ambiguities in . . . application forms are to be resolved against the insurer." Remsden v. Dependable Ins. Co., 71 N.J. 587, 589-90 (1976). "In evaluating an insurance application that calls for subjective information, there is an additional inquiry, i.e., whether the insured knew that the information was false when completing the application." Am. Title Ins. Co. v. Lawson, 177 N.J. 125, 137 (2003).

The scope of our appellate review of a judgment entered in a non-jury case is narrow. We do not disturb a judge's findings unless "they are so wholly insupportable as to result in a denial of justice." Rova Farms, supra, 65 N.J. at 483-84 (citations omitted). We cannot say that the judge's conclusion -- Hamilton's description of her marital status as "separated" correctly stated her belief -- was so wide of the mark as to amount to a denial of justice. Ibid.

We add that RCIC does not argue that the terms of Hamilton's policy required her to provide notice of change in marital status. In fact, RCIC did not even provide a copy of the policy to this court.

Affirmed.

 

Although RCIC's notice of appeal references that aspect of the judgment which directs payment of counsel fees, its brief on appeal presents no argument in opposition to that order. For that reason, we deem it abandoned. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).

Lloyd and Hamilton filed a cross-appeal limited to the amount of fees awarded, but they present no argument on that point. Accordingly, their cross-appeal is deemed abandoned. Muto, supra, 189 N.J. Super. at 420-21. To the extent that the brief includes argument about fees, it is limited to argument in favor of an award of additional fees on appeal. Applications for fees on appeal must be made by motion and supported by an affidavit of services. R. 2:11-4.

The complaint initially identified the insurer of Lee's vehicle by pseudonym and was amended to name defendant NJM. All claims between plaintiffs Lloyd and Hamilton and defendants Andre and Judith Lee were resolved by settlement.

(continued)

(continued)

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A-1632-04T2

July 25, 2006