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Celino v. General Accident Ins.

Decided: May 28, 1986.

JANE CELINO, ETC., PLAINTIFF-APPELLANT,
v.
GENERAL ACCIDENT INS. AND/OR CAMDEN FIRE INSURANCE CO., DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division Camden County.

Pressler, Dreier and Bilder. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

Plaintiff Jane Celino, administratrix of the estate of her daughter, Roxann A. Celino, who died in a motor vehicle accident, filed this action against the decedent's automobile liability carrier General Accident Insurance and/or Camden Fire Insurance Company, seeking to recover personal injury benefits payable upon an insured's death. Defendant moved for summary judgment, contending that as a matter of undisputed fact the policy had been effectively cancelled prior to the date of the accident. Plaintiff appeals from the grant of that motion. We reverse.

According to the record on the motion, the policy in question covered the period from December 9, 1983 to June 9, 1984. The fatal accident occurred February 15, 1984. Defendant asserts that on January 25, 1984 it sent to both the decedent and to Burlington County Trust Company, the loss payee named in the policy, a notice of cancellation effective February 9, 1984. A copy of the notice of cancellation, annexed to its trial brief in support of its summary judgment motion, has an "X" typed in a box next to the legend explaining that the reason for cancellation was "because of failure to meet this company's current underwriting standards as indicated below." There was, however, no such indication given, and no other box on the cancellation

form was marked. As proof of mailing to both decedent and the loss payee, defendant also annexed to its trial brief photocopies of the post office certificates of mail forms, one for each of the addressees and each bearing the Cherry Hill post office date stamp of January 25, 1985. On February 6, 1986, defendant asserts, it sent a refund to decedent representing the unearned portion of her paid premium.

In response to the motion, plaintiff submitted an affidavit stating that as a matter of her personal knowledge, the decedent "maintained a meticulous file dealing with all of her insurance matters" and that she, plaintiff, found no notice of cancellation in her daughter's insurance file after her death, although she did find the notice of premium refund. Also annexed to her trial brief in opposition of the motion is a copy of a letter from the installment banking supervisor of the successor bank of the named loss payee written to defendant on March 21, 1984 stating that, "We have no record on file of the cancellation of Miss Celino's auto insurance."

Based on the foregoing facts, the trial judge granted summary judgment without oral argument and with no apparent statement of reasons. Plaintiff then sought reconsideration, which was granted. The motion for reconsideration was orally argued but, since no new facts had been submitted, the court reaffirmed its original action without further elucidation.

Because the policy is represented to us to have been a new rather than a renewal policy and since cancellation was effected within the first 60 days of coverage, we are satisfied that the time prescriptions specified by N.J.S.A. 17:29C-8 for the giving of effective notice of cancellation do not apply. See N.J.S.A. 17:29C-7. The policy itself requires ten days' notice of cancellation of new policies within the first 60 days of coverage, and there does not appear to be any statutory impediment to the validity of that provision. Plaintiff indeed concedes that to be so. Thus, the only issue before us is whether the notice of

cancellation complied with N.J.S.A. 17:29C-10, as amended by L. 1980, c. 165, ยง 2, which provides in full as follows:

No written notice of cancellation or of intention not to renew sent by an insurer to an insured in accordance with the provisions of an automobile insurance policy shall be effective unless a. (1) it is sent by certified mail or (2) at the time of the mailing of said notice, by regular mail, the insurer has obtained from the Post Office Department a date stamped proof of mailing showing the name and address of the insured ...


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