NAOMI R. HENDERSON, individually et al. v. THE HERTZ CORPORATIONPER CURIAM Plaintiff Naomi Henderson appeals from the January 29, 2004 order of the Law Division granting the motion of defendant, The Hertz Corporation ("Hertz"), to dismiss he

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3776-03T53776-03T5

NAOMI R. HENDERSON, individually

and on behalf of all others

similarly situated,

Plaintiff-Appellant,

v.

THE HERTZ CORPORATION,

Defendant-Respondent.

______________________________________________

 

Argued: February 28, 2005 - Decided June 22, 2006

Before Judges A. A. Rodr guez, Cuff and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-6937-03.

Bruce D. Greenberg argued the cause for appellant (Lite, DePalma, Greenberg & Rivas, attorneys; Mr. Greenberg on the brief, and Joseph N. Kravec, Jr. (Specter, Specter, Evans & Manogue), of the Pennsylvania bar, admitted pro hac vice, of counsel and on the brief).

Alan E. Kraus argued the cause for respondent (Latham & Watkins, attorneys; Lisa Ann T. Ruggiero and Mr. Kraus, on the brief).

PER CURIAM

Plaintiff Naomi Henderson appeals from the January 29, 2004 order of the Law Division granting the motion of defendant, The Hertz Corporation ("Hertz"), to dismiss her complaint for failure to state a claim upon which relief may be granted. We affirm.

For purposes of our review and in light of the procedural posture of this appeal, we accept as true the facts set forth in plaintiff's complaint. Hertz is a national car rental company with its headquarters in New Jersey. At all times relevant to this appeal, Hertz not only rented vehicles to customers, but also offered for sale three different varieties of insurance which could be purchased along with the cars being rented. More particularly, defendant offered third-party insurance known as Liability Insurance Supplement (LIS), first-party insurance coverage known as Personal Accident Insurance (PAI), and personal property or damage insurance referred to as Personal Effects Coverage (PEC). Each type of insurance coverage was underwritten by independent insurance companies and only made available for sale by Hertz.

According to the complaint, plaintiff rented a car from Hertz at Newark Airport on January 12, 1998. In connection with that rental, she purchased LIS coverage but chose not to purchase PAI or PEC coverage. She returned the rental car without incident, never having had to make a claim against the LIS coverage. Plaintiff further alleges that at various times between April 1988 and August 2003, she rented cars from Hertz in states other than New Jersey and that she purchased one or more of the insurance products in connection with each of those other rentals. She concedes she never filed any claims under the coverages provided by any of the insurance products she purchased.

Plaintiff filed her complaint seeking to sue individually and as the representative of a class of individuals who both rented vehicles from Hertz and purchased one or more of the insurance products from Hertz during the period from April 1988 through August 2003. The complaint alleges that Hertz misrepresented, concealed or failed to disclose to plaintiff and the other members of the class that it was not licensed or registered to sell the insurance products that she and the class members purchased. She asserts that she and other members of the class are therefore entitled to damages from defendant based upon six separate causes of action, namely, a violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, common law fraud, illegal contract subject to rescission, breach of the implied covenant of good faith and fair dealing, negligent misrepresentation and unjust enrichment.

Defendant filed a motion to dismiss the complaint for failure to state a claim, see R. 4:6-2(e), in lieu of answering the complaint. That motion, in summary, asserted that plaintiff's complaint failed to state a claim because it essentially sought to create a private right of action arising from a licensing requirement, which could only be enforced by the Commissioner of the Department of Banking and Insurance ("the Commissioner"), because it sought to rescind a fully executed contract and because plaintiff could not demonstrate that she had suffered an ascertainable loss as required by the Consumer Fraud Act. On January 29, 2004, Judge Bernstein granted the Hertz motion, separately addressing the sufficiency of each of the complaint's causes of action as a part of his oral decision.

On appeal, plaintiff asserts that Judge Bernstein erred in dismissing the complaint for failure to state a claim. She argues that the complaint states a cause of action, cognizable within the Consumer Fraud Act, which is parallel to, but not coextensive with, the remedies that are available to the Department of Banking and Insurance to enforce the applicable insurance licensing statutes. In addition, she asserts that because she purchased a product that Hertz was not lawfully entitled to sell to her and which Hertz lacked the appropriate license to sell, she has suffered an ascertainable loss. In the alternative, she urges us to find that the factual allegations support relief based on her other causes of action. We disagree and we affirm.

We begin our analysis with an explanation of the relevant statutory and regulatory scheme governing insurance products and with an examination of the required elements of the Consumer Fraud Act. Since April 1988, the New Jersey Insurance Producer Licensing Act (IPLA), N.J.S.A. 17:22A-1 to -25, has required that an entity or person must be licensed in order to offer insurance for sale or receive a fee, commission or compensation for sales of insurance. N.J.S.A. 17:22A-3. Effective August 15, 2001, the Legislature repealed that statute, but replaced it with a revised enactment. See New Jersey Insurance Producer Licensing Act of 2001 (IPLA(2001)), N.J.S.A. 17:22A-26 to -48. The relevant language of the statute currently in force is similar to the requirements under IPLA.

As currently in force, IPLA(2001) provides that a "person shall not sell, solicit or negotiate insurance in this State unless the person is licensed for that line of authority in accordance with this act." N.J.S.A. 17:22A-29. In addition, IPLA(2001) specifically defines "person" to include both individuals and business entities. Id. at -28. Both IPLA and IPLA(2001) vest the Commissioner with authority for both issuance of licenses to sell insurance and enforcement of compliance with the statutes. See IPLA, N.J.S.A. 17:22A-4, -20; IPLA(2001), N.J.S.A. 17:22A-32, -33, -45.

Pursuant to IPLA, the Department of Banking and Insurance ("the Department") adopted regulations which plaintiff asserts require car rental companies, like Hertz, to register as limited insurance representatives for purposes of sales of insurance, such as the coverages Hertz offered. See 20 N.J.R. 904, 906-07, 909-10 (April 18, 1988). The regulations accomplish this result by defining car rental companies as sellers of "ticket insurance," N.J.A.C. 11:17-1.2, and by requiring sellers of ticket insurance to register in accordance with the Act. N.J.A.C. 11:17-2.2(a)(9)(iii). According to the complaint, Hertz did not register as required by IPLA or IPLA(2001) and therefore was not licensed to offer the insurance products that it made available in connection with its car rentals to plaintiff and the other class members from 1988 through 2003.

Plaintiff concedes that our Supreme Court has concluded that there is no private right of action under IPLA. See Lemelledo v. Beneficial Management Corp. of Am., 150 N.J. 255, 272 (1997). She concedes that IPLA's licensing requirements can only be enforced by the Department, which it accomplishes through the imposition of fines and penalties. Ibid. She does not suggest that the analysis of the similar statutory scheme enacted by IPLA(2001) would yield a contrary result. She asserts, however, that the claims she has raised are cognizable causes of action within the Consumer Fraud Act, or sounding in common law fraud, illegal contract, breach of the covenant of good faith and fair dealing, negligence or unjust enrichment.

The Law Division judge found these arguments unconvincing. Addressing the first count of the complaint, in which plaintiff asserted that the contract for sale of the insurance products was illegal and subject to the equitable remedy of rescission, the judge concluded that although the contract was illegal under IPLA, the statute did not make the contract unenforceable. Moreover, he concluded that because the contract had been fully performed and plaintiff had received the full benefit of the insurance coverage for which she paid, rescission was not available as a remedy. With respect to the counts of the complaint seeking relief pursuant to the Consumer Fraud Act or for common law fraud or misrepresentation, the judge noted that the sole basis for these allegations was Hertz's failure to register and become licensed. Because permitting that claim to proceed would be tantamount to asserting a private remedy under IPLA or IPLA(2001), he concluded it was barred. Furthermore, the judge found no other allegation in the complaint suggesting that Hertz misled plaintiff or that it engaged in any other deceptive practice such as, for example, leading her to believe that the purchase of the coverage was anything other than an option, or overcharging her for the coverage. As a result, the judge concluded that the complaint did not assert any fraud-based claim apart from the one resting on the violation of IPLA. The judge also dismissed the count in the complaint for breach of the covenant of good faith and fair dealing, concluding that this implied contract theory was unsupported by any of the factual allegations. Finally, the motion judge concluded that there could be no claim for unjust enrichment because plaintiff had received the benefit of her bargain.

On appeal, plaintiff asserts that the judge erred in dismissing the complaint for failure to state a claim. More specifically, she asserts that the allegations in the complaint suffice to support a cause of action pursuant to the Consumer Fraud Act which is parallel to the remedies that are available to the Commissioner as enforcement mechanisms for IPLA or IPLA(2001). In addition, she asserts that she has identified an ascertainable loss, a critical element to the Consumer Fraud Act analysis, arguing that she was damaged by purchasing a product that defendant was not lawfully entitled to sell to her and that she would not have purchased had she been aware that defendant lacked the appropriate license. In the alternative, she asserts that the judge erred in his analysis of the sufficiency of her other claims. In particular, she argues that he failed to consider that Hertz, by failing to advise her that it was not licensed to sell the LIS, PAI and PEC products, committed common law fraud and breached the covenant of good faith and fair dealing. Finally, she argues that Hertz has been unjustly enriched by being permitted to profit from the sale of these products in violation of IPLA and IPLA(2001).

A motion for failure to state a claim requires the judge to search the pleading in depth and with liberality in order to determine whether a cause of action is suggested. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989). In addressing any motion to dismiss for failure to state a claim, the court must "accept as true all factual assertions in the complaint." Smith v. SBC Communications, Inc., 178 N.J. 265, 268-69 (2004). Moreover, in doing so, every reasonable inference to be drawn from the factual assertions must be accorded to the plaintiff. Id. at 282. We have specifically considered the effect of such a motion in the context of a Consumer Fraud Act complaint. See New Jersey Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8, 13 (App. Div.), certif. denied, 178 N.J. 249 (2003). In particular, we have commented that a motion for failure to state a claim in the context of the Consumer Fraud Act should be approached "with hesitation." Id. at 13 (citing Seidenberg v. Summit Bank, 348 N.J. Super. 243, 249-50 (App. Div. 2002)(other citations omitted)).

However indulgently the court is required to view the sufficiency of factual allegations in evaluating a motion to dismiss for failure to state a claim, the motion judge must nevertheless grant the motion if the complaint fails to articulate a legally sufficient basis entitling plaintiff to relief. See Camden County Energy Recovery Assocs., L.P. v. New Jersey Department of Environmental Protection, 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd o.b. 170 N.J. 246 (2001). As we have recently held, "[a] motion to dismiss a complaint under R. 4:6-2(e) for failure to state a claim upon which relief can be granted must be evaluated in light of the legal sufficiency of the facts alleged in the complaint." Donato v. Moldow, 374 N.J. Super. 475, 482 (App. Div. 2005). Although a plaintiff need not prove the truth of the factual allegations in response to a motion to dismiss for failure to state a claim, it is plaintiff's duty to demonstrate allegations "which, if proven, would constitute a valid cause of action." Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.)(quoting Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001)), certif. denied, 185 N.J. 297 (2005). With these indulgent standards of review in mind, we turn to the specific complaint and the arguments of the appellant.

Although there are six separate counts in the complaint, the central focus of plaintiff's appeal, and therefore the focus of our analysis, is on the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, and the related claims sounding in common law fraud and misrepresentation. We begin, therefore, by observing that the Consumer Fraud Act gives citizens a cause of action under certain conditions. As our Supreme Court has held, in order to state a claim under the Consumer Fraud Act, a plaintiff must allege each of three elements: (1) unlawful conduct by a defendant; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship between defendant's unlawful conduct and that ascertainable loss. See Cox v. Sears Roebuck & Co., 138 N.J. 2, 24 (1994). Based upon our review of the allegations in the complaint, we conclude, as did the motion judge, that plaintiff has failed to state a claim consistent with these necessary requirements of the Consumer Fraud Act. In particular, her claim falls short because she cannot demonstrate that the unauthorized sale of insurance products is "unlawful conduct" as that concept is embodied in the Consumer Fraud Act and because she cannot demonstrate that she has suffered an ascertainable loss because of Hertz's conduct.

We first conclude that plaintiff has failed to allege facts that would support relief under the Consumer Fraud Act because the nature of the misrepresentation or deceptive practice on which she bases her claim, namely, the sale of a product which Hertz was not authorized by license to sell, is not a legally cognizable claim. That is to say, IPLA and IPLA(2001) make plain that enforcement of the licensing provisions relating to the sale of insurance products is for the Commissioner. See In re Commissioner of Insurance's March 24, 1992 Order, 256 N.J. Super. 158, 176 (App. Div. 1992), aff'd, 132 N.J. 209 (1993)("Implied remedies are unlikely to be intended by a Legislature that enacts a comprehensive legislative scheme including an integrated system of procedures for enforcement"); Mizrahi v. Allstate Ins. Co., 276 N.J. Super. 112, 118 (Law Div. 1994)(IPLA "seeks to compel compliance with its licensing requirements by permitting the Commissioner to impose substantial fines . . . and to refuse to issue or renew a license for any statutory violation"). Our Supreme Court has specifically held that IPLA does not create a private right of action or a private remedy for an individual who purchases an insurance product from an unlicensed insurer. See Lemelledo, supra, 150 N.J. at 272. Nothing in IPLA(2001) would support a different conclusion as it relates to that legislative scheme.

Viewed against these precedents, plaintiff's claim must fail as a matter of law. A review of the complaint reveals that the only acts or practices plaintiff alleges give rise to her cause of action are that Hertz sold insurance without a license, that Hertz was required to be licensed and that Hertz's sale of insurance was either illegal or against public policy. None of these acts, however, falls outside the scope of IPLA or IPLA(2001); none can be the basis for a private remedy under the Consumer Fraud Act. None, by extension, can support a private remedy through any other misrepresentation-based theory.

Even were plaintiff to contend, and her complaint does not, that defendant should have revealed to her that it was an unlicensed seller of ticket insurance and that she would not have purchased the products had she been aware of those facts, we would reach the same result. Because her factual assertions are, fundamentally, that Hertz violated IPLA or IPLA(2001) they cannot support relief under any of the theories in her complaint. It is significant to our analysis that plaintiff has defined the class of claimants to include only those who purchased insurance products from Hertz but who thereafter made no claims for coverage pursuant to those policies. She concedes that any Hertz customer who purchased one of the insurance products and who thereafter made a claim under those policies was compensated for their covered claims. That being the case, plaintiff has defined the class of persons she seeks to represent to include only those individuals who have no claim at all. That is to say, the very definition of the class demonstrates that the insurance Hertz sold was recognized as valid by the underwriters, notwithstanding the fact that Hertz had no license to sell it. By defining the class to exclude all individuals who purchased the insurance and made a claim for which they were compensated, plaintiff only asserts a cause of action which IPLA and IPLA(2001) have reserved to the Commissioner. In short, she seeks to create a private right of action to remedy the unlicensed sale.

Nor does the holding of the Supreme Court in Perez v. Rent-A-Center, Inc., 186 N.J. 188 (2006), or the analysis of the Law Division in Artistic Lawn & Landscape Co. v. Smith, 381 N.J. Super. 75 (Law Div. 2005), both called to our attention by plaintiff while this matter was pending, see R. 2:6-11(d), support a different result. In Perez, the Court concluded that a claim amounting to a statutory violation could also form the basis for a Consumer Fraud Act claim. Its reasoning, however, rested on the conclusion that a rent-to-own contract was a retail installment contract, within the meaning of the Retail Installment Sales Act ("RISA"), N.J.S.A. 17:16C-1 to -61, and subject to that statute. Having reached that conclusion, the Court then relied on the rationale of Lemelledo, supra, 150 N.J. at 264-66, which had earlier concluded that a RISA violation could support a Consumer Fraud Act cause of action. See Perez, supra, 186 N.J. at 219-20.

The Court's reasoning in Perez does not undercut the Court's earlier conclusion in Lemelledo that an IPLA violation does not similarly give rise to a Consumer Fraud Act claim. Lemelledo, supra, 150 N.J. at 272. Indeed, the Perez Court pointed out that there is no suggestion that the remedy of the Consumer Fraud Act would conflict with the RISA enforcement scheme. In light of the fact that the Court in Lemelledo reached the contrary conclusion in its separate analysis of the relationship between the Consumer Fraud Act and IPLA, based on the latter's lack of a private remedy, we find nothing in Perez that supports plaintiff's assertions. Indeed, the Court has not altered its conclusion that a conflict between the regulatory scheme and the asserted private remedy compels the latter to give way to the former.

Similarly, although the Law Division judge in Artistic Lawn concluded that a contractor who was not licensed to perform a lawn irrigation installation project could be subject to a Consumer Fraud Act claim, neither the court's analysis nor the statutory framework addressed in that decision supports a like conclusion here. Apart from the fact that the licensing framework addressed in Artistic Lawn is unlike IPLA or IPLA(2001), as the court there recognized, the full performance of the contract itself, regulations notwithstanding, might compel an alternate result. See Artistic Lawn, supra, 381 N.J. Super. at 87. Indeed, the Law Division judge in Artistic Lawn relied in part on our earlier expression of a similar concern, that is, the inherent unfairness of preventing a remedy to a contractor who has fully performed. See Scibeck v. Longette, 339 N.J. Super. 72, 82 (App. Div. 2001). Even were we to conclude that plaintiff here had a potential private remedy, because Hertz fully performed, the concern we expressed in Scibeck would support the same conclusion here, precluding plaintiff from pursuing her claim. As we noted in Scibeck, plaintiff, having received the full benefit of the bargain of the insurance coverage that Hertz sold her, should not be permitted to "use the [Consumer Fraud] Act as a sword rather than a shield." Ibid. Having reviewed and considered each of these additional precedents cited for us by plaintiff, we discern no basis on which to conclude that the Law Division judge erred in deciding that she has failed to state a claim for relief pursuant to the Consumer Fraud Act.

Alternatively, we would affirm the motion judge's decision because plaintiff has failed to set forth facts that suffice to meet the ascertainable loss requirement of the Consumer Fraud Act. We need not describe this requirement or the history of the development of our understanding of it, see Weinberg v. Sprint Corp., 173 N.J. 233, 251 (2002); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 473 (1988), at great length, particularly in light of the recent guidance from our Supreme Court about the meaning of the term. See Thiedemann v. Mercedes-Benz U.S.A., LLC, 183 N.J. 234, 238 (2005). In Thiedemann, the Court reiterated that summary judgment on a Consumer Fraud Act claim is appropriate if a "plaintiff fails to produce evidence from which a finder of fact could find or infer" that the plaintiff sustained an ascertainable loss. Ibid. Significant to our analysis of plaintiff's complaint against Hertz, the Court there defined the concept of ascertainable loss as a "quantifiable or otherwise measurable loss." Ibid. In analyzing and in attempting to define the ascertainable loss requirement, the Court observed that "[t]here is little that illuminates the precise meaning that the Legislature intended in respect of the term 'ascertainable loss' in our statute." Id. at 248. In doing so, the Court echoed its earlier statement that "[w]e neither can ascribe a plain meaning to the term ascertainable loss, nor find legislative history that sheds direct light on those words." See Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11 (2004). Most significant to our analysis, in Thiedemann, the Court concluded that "[t]o give effect to the legislative language describing the requisite loss for private standing under the [Consumer Fraud Act], and to be consistent with Weinberg, a private plaintiff must produce evidence from which a factfinder could find or infer that the plaintiff suffered an actual loss." Thiedemann, supra, 183 N.J. at 248.

As a further illustration of the meaning of "actual loss" the Court noted that "[i]n cases involving breach of contract or misrepresentation, either out-of-pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle and will set the stage for establishing the measure of damages." Ibid. The Court stressed, however, that the "certainty implicit in the concept of an 'ascertainable' loss is that [such loss] is quantifiable or measurable." Ibid. The calculation does not need to be exact, and plaintiff need not experience any out-of-pocket loss. Ibid. Rather "an 'estimate of damages, calculated within a reasonable degree of certainty,' will" be sufficient to demonstrate an ascertainable loss. Id. at 249 (quoting Cox, supra, 138 N.J. at 22).

In the time since the Court decided Thiedemann, we have addressed several other issues related to the analysis of the concept of ascertainable loss. We have reiterated our earlier rejection of the "price-inflation" theory, see Dabush v. Mercedes-Benz U.S.A., LLC, 378 N.J. Super. 105, 123 (App. Div.) (citing Citizen Action, supra, 367 N.J. Super. at 16), certif. denied, 185 N.J. 265 (2005), and we have concluded that a plaintiff who relies only on hypothetical surmise about an automobile component without any out-of-pocket loss or evidence of its value cannot meet the Thiedemann test. Id. at 124. We have concluded that automobile repairs that would have been covered by warranties but which were voluntarily foregone in an effort to support a Consumer Fraud Claim Act also did not meet the ascertainable loss test. See Perkins v. DaimlerChrysler Corp., 383 N.J. Super. 99, 112 (App. Div. 2006).

We recognize that the Court in Thiedemann had the benefit of a more complete record than the one we here review. While the Thiedemann appeal followed a motion for summary judgment, based on a record more fully developed in discovery than the limited record before us in light of the procedural posture of this matter, we do not find that difference significant. We conclude, rather, as we did in Perkins, that the parameters of the Thiedemann test for ascertainable loss are such that they can be applied appropriately to this complaint in the context of a motion to dismiss for failure to state a claim. See Perkins, supra, 383 N.J. Super. at 111.

Applying even these more recent precedents to plaintiff's complaint, we reach the same conclusion as did Judge Bernstein. Although plaintiff purchased insurance products from an allegedly unlicensed seller, she must concede that, had she had the occasion to file a claim against that insurance coverage, it would not have been rejected on that ground. In fact, she got the benefit of her bargain because she was covered against the various perils as to which the insurance products applied each time she bought coverage. The mere fact that she did not need to file a claim does not mean that she did not receive the coverage for which she bargained. It therefore cannot equate with an ascertainable loss as our Supreme Court has interpreted that term. Rather, it is only by defining the putative class so as to exclude every purchaser who made a claim and who realized the full benefit of the coverage as well that plaintiff attempts to demonstrate a loss. We decline to interpret the reach of the ascertainable loss requirement to include plaintiff, who only by fortuity, did not actually need the coverage she purchased. Indeed, it is in the nature of insurance that some people will buy it and not use its available coverages. To suggest that every purchaser of insurance who does not thereafter make a claim against the coverage has suffered an "actual" loss in the sense required under the Consumer Fraud Act is to stretch the concept well beyond its meaning and intendment as we understand it.

Henderson also argues that the Law Division judge erred in dismissing her claims based on theories of common law fraud, negligent misrepresentation, illegal contract (rescission), breach of the covenant of good faith and fair dealing and unjust enrichment. Although we find no merit in her assertion that the judge erred, we separately address each of these theories. We begin by noting that the same factual allegations which plaintiff utilized to support her Consumer Fraud Act claim also give rise to each of the other claims.

We need only comment briefly on plaintiff's common law fraud and negligent misrepresentation claims. First, as Hertz points out, both of these claims are, in the context of the facts here, simply alternative articulations of a proposed private remedy, barred by IPLA and IPLA(2001), for Hertz's alleged failure to maintain a license or to advise plaintiff that it was not licensed. The result, therefore, of our analysis, can be no different from our decision on the Consumer Fraud Act claim. See Crusco v. Oakland Care Center, 305 N.J. Super. 605, 614-17 (App. Div. 1997)(artful repleading of barred statutory claim insufficient to state a claim). Second, were we to examine the factual assertions in comparison to the elements of either of these causes of action, we would conclude that plaintiff's complaint fails to state a claim.

The elements of common law fraud or misrepresentation are: (1) a false representation of fact; (2) made by defendant; (3) with knowledge that it is false; (4) with the intent to deceive plaintiff; (5) upon which representation plaintiff relies to his or her detriment; (6) sustaining a loss. See Jewish Center of Sussex County v. Whale, 86 N.J. 619, 624 (1981); Louis Schlesinger Co. v. Wilson, 22 N.J. 576, 585-86 (1956); Fischetto Paper Mill Supply, Inc. v. Quigley Co., Inc., 3 N.J. 149, 152-53 (1949). As with our discussion of the Consumer Fraud Act's ascertainable loss requirement, plaintiff's inability to demonstrate that she suffered any loss as a result of Hertz's sale of insurance without a license is fatal to her claim. Moreover, as plaintiff does not assert and cannot demonstrate that she relied to her detriment on any statement, or omission, by Hertz, her claim cannot be sustained under either of these theories for this separate reason.

Similarly, plaintiff's illegal contract claim, on which she bases her demand for the equitable remedy of rescission, fails because the contract is fully executed. So articulated, the flaw in her reasoning is apparent, for the equitable remedy is not available after performance. See County of Morris v. Fauver, 153 N.J. 80, 97 (1998); Intertech Assocs., Inc. v. City of Paterson, 255 N.J. Super. 52, 59 (App. Div. 1992)(quoting Driscoll v. Burlington-Bristol Bridge Co., 28 N.J. Super. 1, 4 (App. Div. 1953)). Even if by selling the insurance without a license, Hertz violated the law, the insurance coverage plaintiff bargained for was provided. Indeed, although the risk insured against did not occur during the rental period, plaintiff concedes that had it, she would have been covered, just as those excluded from the putative class in fact were covered. Because her illegal contract claim seeks to rescind a contract for services after all obligations promised by Hertz have been performed, it fails as a matter of law.

We reject as well plaintiff's argument that Hertz breached the covenant of good faith and fair dealing. Judge Bernstein reasoned that because plaintiff received the full fruits of the contract of insurance, she could not prevail on this claim. On appeal, plaintiff urges us to conclude that the covenant of good faith and fair dealing required Hertz to affirmatively advise her that it was not licensed to sell the insurance coverage. We disagree. The essence of the covenant of good faith and fair dealing, implied in every contract, as defined by our Supreme Court, is that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Bak-A-Lum Corp. of Am. v. Alcoa Bldg. Products, Inc., 69 N.J. 123, 129-30 (1976)(quotations omitted); see Sons of Thunder v. Borden, Inc., 148 N.J. 396, 420 (1997). Even assuming that Hertz misrepresented whether it was licensed to sell the products, there are no allegations in the complaint that Hertz did anything to destroy or injure plaintiff's rights under the contracts of insurance. Because it is undisputed that the insurance policies sold by Hertz did provide the coverage as represented, plaintiff can have no claim for breach of the covenant of good faith and fair dealing.

Finally, we agree with the motion judge that plaintiff's unjust enrichment claim also fails. Hertz performed its obligations to plaintiff by providing her with a valid insurance contract as promised. See Paley v. Baron Sav. and Loan Ass'n., 82 N.J. Super. 75, 84 (App. Div.), certif. denied, 41 N.J. 602 (1964). There can be no claim for the equitable remedy of unjust enrichment, therefore, because Hertz did not receive a benefit at plaintiff's expense. See Assocs. Commercial Corp. v. Wallia, 211 N.J. Super. 231, 243 (App. Div. 1986). Rather, Hertz undeniably provided the insurance coverage even if it was not licensed to do so. Hertz therefore received only payment for that which it provided. In the absence of factual allegations that Hertz received a benefit that enriched it beyond its contractual rights, there can be no claim for damages pursuant to the unjust enrichment theory. See Callano v. Oakwood Park Homes Corp., 91 N.J. Super. 105, 109 (App. Div. 1966).

In summary, our review of the record compels us to conclude, as did Judge Bernstein, that the facts set forth in plaintiff's complaint fail as a matter of law to state claims for relief either within the Consumer Fraud Act, or for common law fraud, negligent misrepresentation, illegal contract, breach of the covenant of good faith and fair dealing or unjust enrichment.

 
Affirmed.

Hertz does not concede that these regulations apply to its sales of these products. Rather, it asserts that the scope of the regulations is more narrow than plaintiff's complaint alleges. For purposes of this appeal, and in light of its procedural context, we accept plaintiff's assertions about the applicability of these regulations as true.

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A-3776-03T5

June 22, 2006