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Auger v. Gionti Agency

Decided: July 1, 1987.

LOUISE AUGER AND AUJ SECURITY DOG SERVICE, INC., PLAINTIFFS-RESPONDENTS,
v.
THE GIONTI AGENCY, DEFENDANT-APPELLANT, AND THE SELECT WAY BUDGET PLAN, INC., DEFENDANT, AND THE HARTFORD INSURANCE COMPANY, DEFENDANT-THIRD PARTY PLAINTIFF-RESPONDENT



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

Dreier, Shebell and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

Defendant Gionti Agency (hereinafter Gionti) appeals from an order directing a verdict in favor of plaintiff against it "limited to the provisions of the Hartford Insurance Policy."*fn1 The order was based on the court's determination at the end of the trial of plaintiff's case against Gionti that Gionti as "the agent of the insured, had a responsibility to advise her that she had no insurance. . . ."

Gionti also appeals from an order granting The Hartford Insurance Company's pretrial motion for summary judgment against Gionti. The motion was granted on the grounds that the Hartford policy had been cancelled in conformity with N.J.S.A. 17:16D-13 and because Gionti was not the agent of Hartford "for the collection of premiums" due.*fn2

I

In 1983 plaintiff Louise Auger ran a professional dog and animal training business under the name AUJ's Security Dog Service, Inc. In January 1983 Eugene Gionti, a licensed insurance broker and the owner of the Gionti Agency,*fn3 obtained an automobile liability policy for plaintiff through the assigned risk plan. Gionti arranged for financing by The Select Way Budget Plan, Inc. (Select Way). Two general liability policies for plaintiff were also financed under the same finance agreement with Select Way.

Plaintiff made an initial payment on the automobile insurance policy, and the remaining premium was to be paid in nine monthly installments due on the tenth of each month, beginning March 10, 1983. Plaintiff Louise Auger's signature was on the premium finance agreement, which recites that the insured agreed

[t]o appoint Select/Way Attorney in Fact. This appointment means that Select/Way may legally request cancellation of said policies in the event a payment is not received.*fn4

On April 19, 1983 Select Way mailed to plaintiff a notice of intent to cancel based on her failure to make the payment due on April 10, 1983. The notice stated that "Payment of the amount which was due has not been received. It will be necessary for us to ask for cancellation of your insurance unless payment is in this office by 4/29/83." Not having received the payment, on May 6, 1983 Select Way sent a cancellation notice to plaintiff and, through an affiliate, to the

Hartford indicating that the "cancellation date" was May 11, 1983. The reverse side of the notice read:

Please cancel the described policy(ies) on the date shown, or as soon as statutory, regulatory or contractual requirements permit, and send the gross return premium to ...


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