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Miller v. Reis

Decided: May 11, 1983.

RAYMOND MILLER, PLAINTIFF,
v.
RICARDO REIS, DEFENDANT-APPELLANT. LOUIS A. CONFORTI AND PHILLIS CONFORTI, PLAINTIFFS, V. RICARDO REIS, DEFENDANT-APPELLANT, AND DONNA L. MILLER, DEFENDANT. RICARDO REIS, PLAINTIFF, V. INSCO CLAIMS SERVICE CORPORATION AND AMERICAN FIDELITY FIRE INSURANCE COMPANY, DEFENDANTS-APPELLANTS, V. CONTINENTAL INSURANCE COMPANY, THIRD-PARTY DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

Fritz, Joelson and Petrella. The opinion of the court was delivered by Fritz, P.J.A.D.

Fritz

This matter presents an insurance question of some importance respecting the statutory requirements for the giving of notice by an insurance company of cancellation of a policy. The appeal is plagued by a number of subsidiary questions, each of which is the subject of easy disposition here. One of these involves an ethical question of how counsel can represent two (or three) appellants in an appeal involving cases which, because they were conjoined in the judgment from which this appeal is taken, we assume to have been consolidated in the trial court, and in one of which his one appellant-client (Reis) is suing his other two appellant-clients (Insco Claims Service Corporation and American Fidelity Fire Insurance Company). We leave this question to others charged with the responsibility of overseeing ethical matters.

Others of these minor issues are the claim of respondent Continental Insurance Company (Continental) in its brief that appellants lack standing "to litigate the issue of P.I.P. coverage under the Continental policy'; its claim that the issue is moot on the assertion that "[i]nasmuch as all of the claims against the putative Continental insured, Ricardo Reis, have been settled within the underlying coverage from A.F.F. [appellant American Fidelity Fire Insurance Company], there is no further justiciable issue with respect to liability coverage under the Continental policy,' and the request by appellants that we declare that "Continental is liable . . . for excess coverage for the personal injury actions of Raymond [Miller] and Conforti.'

With respect to the standing issue, we observe that respondent did not move to dismiss the appeal. In any event, we believe the issue to be clearly without merit in the particular circumstances of this case. Appellants have a very real interest, a "sufficient stake in the outcome' (Jersey Shore, etc. v. Baum Estate, 84 N.J. 137, 144 (1980)), to warrant their invocation of judicial protection.

As far as the claim of mootness goes, we have decided that the substantive issue is sufficiently important to warrant a determination on the merits. Busik v. Levine, 63 N.J. 351, 364 (1973), app. dism. 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973). Accordingly, we do not reach the mootness question and intimate no view respecting it.

Finally, with respect to the minor issues, appellants' request for a declaration of Continental's liability for excess coverage was not briefed (beyond the conclusionary statement of the brief writer, in connection with his argument on the substantial substantive point, that as a result this liability of Continental exists) and we will not consider it.

The vice of these "minor issues' in this case is that they tend to obscure the important substantive issue presented and the only substantive issue briefed by appellants in this matter: whether Continental Insurance Company (Continental) effectively cancelled its policy insuring an automobile owned by Ricardo Reis. The relevant facts are not in dispute; the sole question presented is one of law. Reduced to its simplest terms it asks whether notice of cancellation by an automobile insurance company for nonpayment of premiums need expressly state the intent to cancel in order to comply with N.J.S.A. 17:29C-8. We conclude that it must, and accordingly reverse the determination below.

Commencing March 9, 1975 Continental insured Reis under Policy No. 0921-72-30 for a period of three months. It appears not to be disputed that this policy was renewed for successive three-month periods, the last of which was effective September 9, 1976 and ran until December 9, 1976.*fn1 Consistent with its

practice, on November 12, 1976 Continental forwarded a notice to Reis identifying the policy and stating,

IT IS AGREED THAT THE POLICY IDENTIFIED ABOVE IS EXTENDED FROM 12/09/76 TO 03/09/77 SUBJECT TO ITS TERMS AND PROVISIONS, PROVIDED PAYMENT OF THE AMOUNT DUE SHOWN ...


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