JOSEPH PIZZIO v. FRANK E. METRICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4196-11T3

JOSEPH PIZZIO,

Plaintiff-Respondent,

v.

FRANK E. METRICK, THE ESTATE

OF FRANK E. METRICK, LILLIAN

METRICK, ADVANCE PUBLICATIONS/

THE TRENTON TIMES,

Defendants-Respondents,

and

CURE AUTO INSURANCE,

Defendant-Appellant.

_________________________________

January 14, 2013

Argued January 8, 2013 - Decided

Before Judges Yannotti and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1188-10.

Chad B. Sponder argued the cause for appellant (Bright & Sponder, attorneys; Mr. Sponder, of counsel and on the brief).

Respondents have not filed briefs.

PER CURIAM

Appellant Citizens United Reciprocal Exchange (CURE) appeals from the Law Division's August 5, 2011 order that (1) declared CURE's standard automobile insurance policy issued to defendant Frank E. Metrick "void ab initio from its August 25, 2007 renewal but not for the claims of [plaintiff] Joseph Pizzio" and (2) stated, "innocent third party claims are limited to the mandatory minimum insurance of $15,000/$30,000 required in New Jersey on the date of the accident." We dismiss the appeal as moot.

I.

On July 3, 2008, at around 4:38 a.m., Pizzio was riding as a passenger in a van being operated by Metrick1 when it struck a utility pole causing Pizzio's personal injuries. According to Pizzio, he was helping Metrick deliver early morning newspapers for Trenton's The Times: "He drove and I threw the newspapers." At the time of the accident, Pizzio had been living with Metrick (and Metrick's spouse Lillian) in Trenton for approximately six months.

Metrick's vehicle was insured by CURE with liability limits of $100,000/$300,000 pursuant to a standard automobile insurance policy that was initially issued in 2003, and was last renewed in August 2007. The renewal application signed by Metrick on June 1, 2007, indicated that the only residents of his household were himself and his wife. In response to the question, "Do you or any driver in the household have a physical/mental condition or impairment," Metrick answered, "Yes," and indicated, "Lillian is handicap[ped] due to bone and dis[c] of back deterior[ation]."

CURE's post-accident investigation revealed that although Pizzio had been a member of the Metrick household since approximately January 2008, Metrick never advised the insurer of that changed circumstance. Also, CURE discovered that Metrick had suffered a stroke and subsequent disability a partial paralysis of the hand in December 2006. Lastly, CURE confirmed that Metrick was using the van on the date of the accident for a business purpose, something that had neither been mentioned during the policy's renewal process nor made the subject of a subsequent formal communication.2

On May 10, 2010, Pizzio commenced a personal injury and declaratory judgment action against (1) Metrick's estate and wife, (2) The Times, and (3) CURE. The complaint sought to compel CURE to provide insurance coverage on behalf of Metrick for his alleged negligence in causing the accident and injuries to Pizzio. CURE responded with a counterclaim arguing that the standard automobile insurance policy issued to Metrick was void due to material misrepresentations, and as a result thereof, CURE owed no duty to defend Metrick or to indemnify him for personal injury claims presented as a result of the accident.

Pizzio moved for summary judgment, arguing that he was an innocent third party entitled to, at least, the minimum liability coverage provided by a standard policy of automobile insurance of $15,000/$30,000. CURE cross-moved for summary judgment contending that Metrick's policy was void due to material misrepresentations, and therefore, even under an innocent third party analysis, the minimum mandatory coverage for a basic automobile insurance policy is "zero liability coverage." Accordingly, CURE's position would relegate the otherwise uninsured Pizzio to becoming a claimant of the Unsatisfied Claim and Judgment Fund administered by the New Jersey Property Liability Insurance Guaranty Association if he could not otherwise secure satisfaction of a potential judgment from Metrick's personal assets.

The motion court found that CURE had demonstrated a sufficient misrepresentation by Metrick in his 2007 renewal application to void the policy. It went on to conclude that notwithstanding this turn of events, Pizzio was an innocent third party who would thereafter enjoy only the minimum mandatory liability limits of a standard automobile policy $15,000/$30,000 pursuant to N.J. Mfrs. Ins. Co. v. Varjabedian, 391 N.J. Super. 253, 256 (App. Div.), certif. denied, 192 N.J. 295 (2007). The court rejected CURE's invitation to depart from Varjabedian.

Based upon the motion court's interlocutory decision, CURE provided indemnification to Metrick and settled the liability action on his behalf with Pizzio. This appeal followed.

According to CURE's appellate brief, CURE does not seek to "upset the settlement." We confirmed this position at oral argument. Instead, CURE's focus on appeal is merely that "the Varjabedian decision must be overturned." In other words, it seeks a reversal without visiting any consequences upon its adversaries. Because this is the essence of a prohibited advisory opinion, we consider the appeal moot and accordingly dismiss the appeal.

We generally avoid resolving issues in the abstract and

eschew moot cases. N.J. Tpk. Auth. v. Parsons, 3 N.J. 235,

240 (1949). Our Supreme Court has repeatedly instructed that appellate review will not entail rendering of advisory opinions or an exercise of jurisdiction "'in the abstract.'" State v. Harvey, 176 N.J. 522, 528 (2003) (quoting State v. Gartland, 149 N.J. 456, 464 (1997)).

Generally, courts will not decide cases in which a judgment cannot grant effective relief. See Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App Div. 2000) (citing Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243-44 (App. Div. 1993)). "A case is technically moot when the original issue presented has been resolved, at least concerning the parties who initiated the litigation." DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring). "An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 263 (App. Div. 2011) (citations omitted). However, a dispute is not moot if a party will still suffer "adverse consequences" from the decision. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261-62 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010).

We may decline to dismiss a matter on mootness grounds in order to address an important matter of public interest. Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 484 (2008). That includes cases involving interpretation of a statute that would broadly affect persons governed by it. Nini v. Mercer Cty. Comm. Coll., 202 N.J. 98, 105-06 n.4 (2010). We may also decline to dismiss a case involving issues of substantial importance that are likely to recur and otherwise evade review. Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996). No such issues are raised in this appeal.

Also, the absence of genuine adversariness of the parties is a significant factor that militates against addressing the merits. We prefer to decide "concrete contested issues conclusively affecting adversary parties in interest." Parsons, supra, 3 N.J. at 240 (internal citation and quotation omitted). Understandably, no other party has participated in this appeal because CURE does not seek to topple the settlement with Pizzio or to secure tangible relief from Metrick or from any other party. Although not fatal by itself, this one-sidedness bespeaks the lack of adverse consequences and militates towards avoiding an advisory opinion. "[J]udicial power is to be exercised only when a party is immediately threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010). Because CURE is not so threatened, we refrain from addressing the merits of this appeal.

1 The record is unclear as to the cause, but Metrick died in March 2009.

2 The record indicates that Metrick only began his newspaper delivery activities for The Times about one week prior to the accident.