KIM NECE v. RUTGERS CASUALTY INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2198-05T22198-05T2

KIM NECE,

Plaintiff-Respondent,

v.

RUTGERS CASUALTY INSURANCE COMPANY and

INSURANCE ADMINISTRATOR OF AMERICA, INC.,

Defendant-Appellant.

____________________________________

 

Argued: February 27, 2007 - Decided August 10, 2007

Before Judges Kestin, Weissbard and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Camden County, L-4414-00.

Susan L. Moreinis argued the cause for appellant.

Blair C. Lane, Sr. argued the cause for respondent (Earp Cohn, attorneys; Mr. Lane, on the brief).

PER CURIAM

This matter is before us following an earlier unpublished decision on October 26, 2004, under docket number A-4844-02, in which we remanded the matter for a trial on the question of coverage in respect of an automobile insurance policy. The issue is whether the rights of the parties were governed by a notice of cancellation sent by the insurance carrier, defendant, Rutgers Casualty Insurance Company (RCIC), or whether a reinstatement notice governed, i.e., whether, in the circumstances, plaintiff, Kim Nece, remained covered by the terms of the policy.

In the prior proceeding in the trial court, plaintiff's motion for summary judgment on the question of coverage had been granted and the matter was tried on damages, resulting in a judgment for plaintiff including counsel fees. We reversed the grant of summary judgment and remanded the matter for trial on the coverage question and, if appropriate, a retrial on damages.

The background facts of the matter are set forth in detail in our prior opinion. We will not rehearse them here.

On remand, Judge Kassel tried the matter without a jury in a bifurcated fashion. At the end of the third day of trial, he decided the issue of coverage in plaintiff's favor, in an oral opinion concluding with the ultimate findings "that the plaintiff's state of mind was [] that he had a reasonable expectation of coverage on December 8, 1999[,]" and that "because of the sequence of events with the reinstatement notice[,] the . . . insured could have believed that he still had coverage."

Two months later, on September 29, 2005, Judge Kassel retried damages, made his findings on those issues in an oral opinion, and entered judgment the same day. The judgment in favor of plaintiff was rendered in four categories. $27,682.63 was assessed, "broken down as follows:"

1. Recovery of property damage to Plaintiff's motor vehicle in the amount of $21,975[];

2. Reimbursement of storage and towing in the amount of $860[];

3. Reimbursement for miscellaneous prescription costs/co-pays in the amount of $30[];

4. Interest on #s 1, 2 & 3 ($22,865[] to 9/30/05) in the amount of $4,817.63[.]

Taxed costs totaling $421.52 were also awarded. A further award of $47,585.64 for medical bills was made, "to be reduced by the New Jersey Fee Schedule[,] . . . which shall be the maximum payable by defendant[, who] may further negotiate these bills." Finally, a $41,243 award of counsel fees was made.

On appeal, defendant raises seven issues, arguing:

POINT I THERE IS A SPLIT IN THE APPELLATE PANELS AS TO WHETHER OR NOT AN INSURED'S "STATE OF MIND" CAN TRUMP A VALID AND ENFORCEABLE CANCELLATION NOTICE.

POINT II THE PLAINTIFF IS PRESUMED TO HAVE RECEIVED THE VALID AND ENFORCEABLE CANCELLATION NOTICE.

POINT III THE COURT ERRED IN PERMITTING PLAINTIFF TO DISPUTE FOR THE FIRST TIME PRIOR FACTUAL FINDINGS.

POINT IV THE TRIAL COURT ERRED IN FINDING THAT THE ORDER OF RECEIPT OF NOTICES BY THE BROKER RAISES AN INFERENCE OF THE ORDER OF RECEIPT BY THE PLAINTIFF.

POINT V THE TRIAL COURT ERRED IN FAILING TO FIND THAT NECE IS BOUND BY THE KNOWLEDGE OF HIS AGENT, BLUE CHIP BROKERAGE.

POINT VI RCIC IS NOT ESTOPPED FROM DENYING COVERAGE.

POINT VII THE AWARD OF COUNSEL FEES WAS GROSSLY EXCESSIVE, UNREASONABLE AND IS PROPERLY REVERSED AS A MATTER OF LAW.

On September 22, 2006, Judge Kassel addressed the question of counsel fees for the first appeal, following our referral of that issue to the trial court. Based on the submissions and arguments of the parties, for reasons stated on the record, he entered an order awarding plaintiff an additional counsel fee of $21,275 on account of the first appeal and modifying the total judgment amount to $138,237.79. Defendant filed an amended notice of appeal to subsume the amended judgment.

We reject defendant's argument based on a putative "split" in authority between Appellate Division panels on the question whether "an insured's 'state of mind' can trump a valid and enforceable cancellation notice." The case cited by defendant as holding differently from our prior decision in this matter is unpublished and, hence, non-precedential. See R. 1:36-3. Moreover, defendant provides no factual analysis comparing the two cases to support the argument that they signify a split of authority. Our analysis discloses that the facts of that case are distinguishable from the facts before us.

We are bound by the factual findings and conclusions of the trial court because they are supported by substantial credible evidence in the record, see Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974), and based on credibility determinations, see Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989). We also reject defendant's argument that the findings of the trial court must be disallowed because it must be "presumed" plaintiff "received the valid and enforceable cancellation notice" that defendant had sent. No presumption can override the facts found in a case; the greatest effect a presumption can have is to allocate the burden of producing evidence. See State v. Cuccio, 350 N.J. Super. 248, 257 (App. Div.), certif. denied, 174 N.J. 43 (2002).

The remaining arguments advanced by defendant addressed to the substantive issues in the case are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A),(E). Judge Kassel, on remand, discharged, conscientiously, the duty we imposed on the trial court to find the facts of the matter and evaluate plaintiff's actual state of mind and reasonable beliefs.

Finally, we also reject defendant's arguments bearing upon the counsel fee awards, which are authorized by R. 4:42-9(a)(6). See also Maros v. Transamerica Ins. Co., 76 N.J. 572, 579 (1978). We discern no misapplication of discretion by the trial court in evaluating the submissions of the parties in this regard. See Enright v. Lubow, 215 N.J. Super. 306, 313 (App. Div.), certif. denied, 108 N.J. 193 (1987); see also Estate of Leeman v. Eagle Ins. Co., 309 N.J. Super. 525, 537 (App. Div. 1998).

 
Affirmed.

(continued)

(continued)

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A-2198-05T2

August 10, 2007