NEW JERSEY CITIZENS UNITED RECIPROCAL EXCHANGE (NJ CURE) v. ANDREW GEORGALLIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6014-04T26014-04T2

NEW JERSEY CITIZENS UNITED

RECIPROCAL EXCHANGE (NJ CURE),

Plaintiff-Respondent,

v.

ANDREW GEORGALLIS,

Defendant-Appellant.

_______________________________

 

Submitted: October 17, 2006 - Decided March 6, 2007

Before Judges Kestin and Weissbard.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County, DC-15633-04.

Joel C. Seltzer, attorney for appellant.

Green, Lundgren & Ryan, attorneys for respondent (Francis X. Ryan and Alexa J. Nasta, on the brief).

PER CURIAM

In June 2004, Andrew Georgallis filed a complaint in the Law Division in Mercer County seeking compensation from New Jersey Cure (NJ Cure), his automobile insurer, for damages occasioned by a property loss which, he asserted, was covered under the policy of insurance. In November 2004, NJ Cure sued in Union County, pursuant to the Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30 (the Act), alleging that Georgallis had provided false and misleading information, rendering the policy "void ab initio," and seeking damages allowed by the Act for the expenses of investigating the claim, attorney's fees, and costs of suit. The matters were consolidated in Union County, under the docket number of that suit, and were bench-tried before Judge Dupuis.

On May 18, 2005, Judge Dupuis rendered a written decision in the matter. She made findings of fact, including the ultimate factual finding that Georgallis had made "material misrepresentation of facts in the [insurance] application." She concluded, accordingly, under the terms of the policy and established principles of law, that Georgallis was without coverage and had violated the Act, entitling NJ Cure, under N.J.S.A. 17:33A-7, to an award of "reasonable investigation expenses, costs of suit and attorney's fees." A confirming order for judgment was entered on July 11, 2005, awarding NJ Cure $10,888.82 and dismissing Georgallis's claim with prejudice.*

On appeal, Georgallis assigns error to the trial court's findings and conclusions of fact as well as its legal determination that the Act had been violated. He also challenges the trial court's application of the governing principles of law and the judge's understandings of the terms of the policy that led to the legal conclusion reached.

The findings of fact and conclusions are binding on appeal because they are "supported by adequate, substantial and credible evidence" in the record, Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974), especially considering the credibility determinations made, see Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989), and particularly since the findings stemmed from allegations of fraud, see Stochastic Decisions, Inc. v. DiDomenico, 236 N.J.Super. 388, 395 (App. Div. 1989), certif. denied, 121 N.J. 607 (1990). A particular inaccuracy of factual detail in the judge's decision, as is alleged in a recent motion, filed pro se on January 24, 2007, in no way impairs the logic of, or evidentiary support for, the ultimate findings made and conclusions reached.

Moreover, based on our analysis of the record in the light of the arguments advanced by the parties and prevailing legal standards, we are in substantial agreement with the principles of policy construction and standards of law Judge Dupuis applied. We particularly reject Georgallis's argument, based upon the common law definition of fraud, that a finding of "scienter" is necessary before a party may be held to have committed fraud. NJ Cure's action was based upon the terms of the Act, and not upon allegations of common law fraud. It is clear, nevertheless, that Judge Dupuis found that Georgallis's misrepresentations were knowingly made, as the Act also requires. See N.J.S.A. 17:33A-4a(4)(b).

Affirmed.

 

* Although the order for judgment was entered under the caption employed in the Union County suit, in which NJ Cure was the plaintiff, Georgallis's notice of appeal used the caption of the Mercer County suit in which he was the plaintiff, but specified the docket number of the Union County suit. We deal with the matter as an appeal from the judgment entered in a single, consolidated action in Union County, as the parties have done in their briefs.

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A-6014-04T2

March 6, 2007