MARTHA AND MARTIN GREENBLATT v. STANLEE KISSEL, MARC KISSEL, AND KISSEL AGENCY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4036-04T24036-04T2

MARTHA AND MARTIN GREENBLATT,

Plaintiffs-Appellants,

v.

STANLEE KISSEL, MARC KISSEL,

AND KISSEL AGENCY,

Defendants-Respondents.

___________________________________________________________

 

Submitted November 15, 2005 - Decided February 9, 2006

Before Judges Lefelt, Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-4897-04.

Martin Greenblatt, appellant pro se.

Schenck, Price, Smith & King, attorneys for respondents (Gilbert S. Leeds, of counsel and Jeffrey T. LaRosa and Michael G. Serafino, on the brief).

PER CURIAM

Plaintiff Martin Greenblatt, pro se, appeals from the trial court's dismissal of the complaint filed on behalf of himself and his wife, Martha, for their failure to provide an affidavit of merit, pursuant to N.J.S.A. 2A:53A-27. Because we agree with plaintiffs' contention that the common knowledge doctrine applies, we reverse the order granting summary judgment.

In this professional malpractice action, plaintiffs assert that the defendant Kissel Agency and its employees, defendants Stanlee and Mark Kissel (collectively referred to as defendants or Kissel), failed to procure insurance for a particular building and to arrange for plaintiff Martha Greenblatt, who owned the subject building, to be identified in the policy as the named insured. Plaintiffs also allege that defendants did not properly notify plaintiffs of a pending cancellation of an insurance policy issued to them by Zurich, the insurer. Plaintiffs further contend that the grant of summary judgment was improper because defendants' actions constituted fraud, violated the Consumer Fraud Act, and resulted in unjust enrichment. In view of our reversal under the "common knowledge" exception, we find it is not necessary and we would be ill-advised to address the remaining contentions raised by plaintiffs on the meager record established on the motion for summary judgment.

On appeal, we apply the same standard as the trial court in determining whether the grant or denial of summary judgment was correct. Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989); Prudential Prop. & Cas. Ins. Co., 307 N.J. Super. 162, 167 (App. Div. 1998). "[A] determination whether there exists a 'genuine issue' of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged dispute in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

In its opinion in Hubbard v. Reed, 168 N.J. 387, 390 (2001), our Supreme Court recognized that there is a common knowledge exception to the affidavit of merit statute, N.J.S.A. 2A:53A-27. See also Palanque v. Lambert-Wooley, 168 N.J. 398, 407 (2001) (holding that an affidavit of merit is not required where the defendant doctor acknowledged that she misread plaintiff's laboratory results). "The doctrine applies where 'jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts.'" Hubbard, supra, 168 N.J. at 394 (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)).

The affidavit of merit statute's primary purpose "is 'to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily [can] be identified at an early stage of litigation.'" Hubbard, supra, 168 N.J. at 394 (quoting Cornblatt v. Barow, 153 N.J. 218, 242 (1998)). Thus, the affidavit of merit statute ordinarily "requires plaintiffs [in professional negligence actions] to provide an expert opinion, given under oath, that a duty of care existed and that the defendant breached that duty." Id. at 394. In spite of that ordinary requirement and even though the Court noted that "[n]o express exception is made for common knowledge cases, nor does the legislative history specifically address the question," id. at 393, it concluded that a common knowledge exemption "comport[s] with [the Legislature's] likely intent, and with a practical common sense interpretation of the statute." Id. at 396. The Court explained: "by definition, in common knowledge cases an expert is not needed to demonstrate that a defendant breached a duty of care." Id. at 394. Consequently, "an affidavit serves little purpose when a plaintiff intends to rely on common knowledge at trial." Id. at 395.

Viewed favorably to plaintiffs, as is appropriate on a motion for summary judgment, the facts reveal that in late 1999 and early 2000, plaintiffs retained the Kissel defendants to procure insurance for two jewelry stores owned and operated by plaintiffs in North Plainfield and Flanders. Thereafter, in October 2001, plaintiffs relocated their North Plainfield store from 56 Somerset Street to a building they had purchased across the street at 75 Somerset Street. They informed defendants and asked them to arrange for the placement of insurance on the new building. Defendants did obtain coverage through Zurich. The change of address on the policy was reflected in billing statements or invoices from Zurich. More importantly, billing statements were to be mailed to an address on Lincoln Avenue in Highland Park.

In October 2002, plaintiffs closed the Flanders store and insurance coverage for that location was terminated. In December 2002, plaintiffs stopped operating their jewelry store at the North Plainfield location and they instructed defendants to cancel coverage for the business but to maintain the policy on the building itself, with Martha as the named insured. Defendants notified Zurich of the changes. At some point thereafter, questions arose about proper payment of the premiums, and on or about March 4, 2003, Zurich purported to send plaintiffs a notice of late payment and pending cancellation. The effective date of cancellation stated in the notice was March 22, 2003. Zurich apparently mailed that notice to 56 Somerset Street, North Plainfield, not a valid address for plaintiffs. Documents in Zurich's file disclose that bills and notices to plaintiffs were to have been sent to a mailing address on Lincoln Avenue, HP (presumably Highland Park).

Having received a copy of the notice sent by Zurich, on March 7, 2003, the Kissel defendants also purported to send plaintiffs notice of the pending cancellation. Their notice, like the notice sent by Zurich, was sent to plaintiff's former business at the former address and not to the mailing address indicated for plaintiffs in defendants' files nor even to the building then owned by plaintiffs.

Plaintiffs assert that they did not receive the notices warning of the impending cancellation of the policy for failure to pay. In relatively the same time frame, plaintiffs did receive an endorsement for the relevant policy period - August 12, 2002 to August 17, 2003 - that acknowledged changes in policy coverage, effective as of March 15, 2003. The endorsement also advised that the "premium effect of this transaction [was] $391.27-." Plaintiffs misinterpreted that statement regarding the premium. They understood it to mean that $391.27 was due. Accordingly, on April 22, 2003, plaintiffs submitted a check to defendants for $391.27. Defendants returned the check to plaintiffs with a binder and a note explaining "this is not a bill[.] It is an endorsement removing Flanders location with a return of premium of $391.27." Defendants addressed the returned check to plaintiffs' proper mailing address. They made no mention of the cancellation or pending cancellation of the policy.

Later, by letter dated May 4, 2003, Zurich informed plaintiffs that a premium in the amount of $577.71 was owed for coverage specified. The letter advised that the stated amount was then overdue and must be received in Zurich's office no later than May 14, 2003. Martha Greenblatt's check, payable to Zurich North America, for the stated sum and dated May 13, 2003, was mailed in response to Zurich's letter. That check does not appear to have been returned.

Sometime after June 5, 2003, plaintiffs received a demand letter bearing that date from an attorney who stated that he represented a person who had sustained injuries at the premises at 75 Somerset Street, North Plainfield. The date of the incident was alleged to be April 12, 2003. Plaintiffs notified the Kissel defendants of the claim and those defendants, in turn, allege they notified Zurich.

In October 2003, plaintiff Martha Greenblatt was served with a summons and complaint in a bodily injury cause of action, which she forwarded to the Kissel defendants. According to plaintiffs, Kissel instructed plaintiffs not to move on their own regarding the complaint, at the risk of losing coverage. Plaintiffs, therefore, took no further action. On November 26, 2003, plaintiff Martha Greenblatt received notice that a default judgment had been entered with respect to the unanswered complaint. Then plaintiffs made direct contact with Zurich.

Zurich's claims adjuster responded to plaintiffs by letter dated December 19, 2003 that Zurich acknowledged receipt of the claim but that it disclaimed coverage and refused to defend. The reason given for the disclaimer was "[t]he lawsuit filed in this matter states date of loss as April 12, 2003. The above-captioned policy was cancelled effective March 22, 2003." Plaintiffs then commenced this action against Zurich and defendants for, among other relief, a declaration of coverage and indemnification.

As noted above, the trial court granted defendants' motion for summary judgment improvidently rejecting plaintiffs' argument that the common knowledge doctrine applied. As we view the facts, the issues underlying defendants' alleged negligence in the procurement and placement of insurance coverage and the transmittal of notices regarding such coverage to obviously wrong addresses are matters that jurors, using ordinary understanding and experience, can determine without the benefit of the specialized knowledge of experts. Under such circumstances, plaintiffs' failure to provide an affidavit of merit did not warrant or justify the dismissal of their complaint and we reverse as a matter of law.

"Ordinarily, appellate courts will not decide issues that have become academic during the pendency of the appeal out of a reluctance to render abstract legal decisions and a desire to conserve judicial resources." Warnock Automotive v. Treasury Dept., 272 N.J. Super. 450, 453 (App. Div. 1994) (citing Matter of Conroy, 190 N.J. Super. 453, 459 (App. Div. 1983)). Nevertheless, in light of our reversal of the order granting summary judgment, we are constrained to comment upon the procedural posture of the case. As we noted earlier, in footnote one, according to the Amended Notice of Appeal and defendants' brief, Zurich has settled plaintiffs' case against it by agreeing to defend and indemnify plaintiffs and by paying plaintiffs "a significant portion of their out-of-pocket expenses, including attorney's fees, incurred to date." Since plaintiffs' claims against the Kissel defendants are based upon their alleged breach of duty to procure insurance and their failure to apprise them accurately of the status of such insurance, the court must determine, on remand, whether plaintiffs' causes of action survive. Because we cannot reliably determine on the record before us on appeal whether the claims have been rendered moot, we confine our ruling to the limited issue raised by the appeal - whether summary judgment was properly granted for plaintiffs' failure to provide an affidavit of merit. On remand the parties and trial court must, however, consider what, if any, claims remain viable and whether plaintiff Martin Greenblatt, who appears not to have any proprietary interest in the subject property, is a proper party to the action.

 
Reversed and remanded.

The amended notice of appeal filed on May 2, 2005, identifies only Martin Greenblatt as appellant, even though it is not clear that he has a proprietary interest in the building that is the site of the underlying accident. Plaintiff Martha Greenblatt is the alleged owner of the building, but she is not identified in the amended notice of appeal as an appellant. For present purposes, we assume the reference to Martin only was the result of inadvertence and that the appeal is prosecuted on behalf of both plaintiffs.

The amended notice of appeal also incorporates by reference and alludes to an attached Stipulation of Dismissal. That stipulation recites a settlement agreement between plaintiffs and Northern Insurance Company of New York (incorrectly named as "Zurich" and "Zurich North America") and dismisses, with prejudice and without costs, the claims of both plaintiffs, Martha and Martin Greenblatt, against defendant Zurich. We question, but do not decide on this record, what claims remain viable.

(continued)

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A-4036-04T2

February 9, 2006