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Dancy v. Popp

Decided: February 1, 1988.

LEROY DANCY, PLAINTIFF-APPELLANT,
v.
EVELYN R. POPP, THE NATIONAL SURETY CORPORATION AND FIREMAN'S FUND INSURANCE COMPANY, DEFENDANTS-RESPONDENTS



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

King, Gaulkin and Gruccio. Gruccio, J.A.D., dissenting.

Per Curiam

[232 NJSuper Page 2] Following an automobile accident, plaintiff brought a personal injury action against one Anna Bates which was settled for $25,000, the limit of the Bates liability policy. Alleging that the settlement proceeds "did not fully and adequately compensate" him for his injuries, plaintiff brought the present action in which he set forth that he had obtained an automobile policy from defendants The National Surety Corporation (National Surety) and Fireman's Fund Insurance Company (Fireman's Fund) through defendant Evelyn R. Popp (Popp), their agent. Plaintiff alleged that Popp had failed to inform him "that he could purchase underinsured motorist coverage protection in an amount equal to the $100,000.00 liability protection issued on plaintiff's policy." Pleading theories of breach of trust, breach of fiduciary responsibility and negligence, plaintiff demanded damages of $100,000 and "a revision of the aforementioned policy to include underinsured motorist coverage protection in

the amount of $100,000.00." On defendants' motions for summary judgment, the complaint was dismissed. Plaintiff appeals.*fn1

In support of their summary judgment motion, defendants relied solely on the fact that Dancy's signature on the application for the assigned risk policy appears directly below a printed paragraph entitled Applicant's Statement, which reads as follows:

I declare and certify that (1) I have tried and failed to obtain automobile insurance in this state within the preceding 60 days at rates not exceeding those applicable under the Association. (2) To the best of my knowledge and belief that all statements contained in this application are true and that these statements are offered as an inducement to the Servicing Carrier on behalf of the Association to issue the policy for which I am applying. (3) I realize that any misleading information or failure to disclose required information will be considered lack of good faith on my part and may void the application or cause cancellation of my coverage. (4) I will pay all premiums when due. (5) I designate as Producer of this insurance the producer or firm named in this application and I understand he is not acting as an agent of any company for the purpose of this insurance. (6) I agree that no coverage will be in effect if my premium remittance, which accompanies the application, and is forwarded to the Servicing Carrier, is justifiably dishonored by the financial institution. (7) I understand that the premium shown on this application is an estimated premium. The Servicing Carrier on behalf of the Association reserves the right to adjust the premium in accordance with the rates currently in effect either prior to or after the issuance of the Policy, whenever applicable. (8) I have been offered coverage up to at least the following limits: (a) bodily injury liability; $250,000.00 each person, $500,000.00 each accident; (b) property damage liability $100,000.00; (c) bodily injury and property damage $500,000.00 single limit each accident; (d) comprehensive and collision coverage; (e) uninsured motorist and underinsured motorist coverage $250,000.00 each person and $500,000.00 each accident for bodily injury; $100,000.00 each accident for property damage or $500,000.00 single limit except that these limits shall not exceed the policy limits for bodily injury and property damage liability, respectively; (f) personal injury protection coverage as required by law; (g) additional personal injury protection coverage required to be offered by law; and (h) any other automobile insurance required to be offered by law and subject to the limits stated in the law. The coverage and limits I have selected are shown under: "Coverages" on this application. I reject additional limits and coverages not selected. I

understand this rejection shall apply to all renewals and extension of coverage with the Association unless I notify the Association in writing to the contrary.

In opposing the summary judgment motion, Dancy submitted certifications in which he set forth that Popp recommended that $100,000 "in liability protection would be appropriate to protect me," but that she "did not advise me that you could purchase the insured/underinsured motorist coverage in the same amount." Indeed, Dancy certified, Popp "did not tell me that I could purchase this coverage for any higher than the amount she gave me, being thirty-five thousand dollars." At the end of their discussion, Popp "presented the form to me for my signature and I signed where she indicated," "I did not read the backside of the form before signing." Dancy affirmed that "[h]ad I been advised that I could also purchase uninsured/underinsured motorist protection for $100,000.00 I certainly would have purchased that option."

The motion judge gave the following reasons for dismissing the complaint:

The sole question, of course, is a narrow one, namely, whether this agent, admittedly in a fiduciary position, discharged the obligation to properly advise a customer. I find that there is no obligation legally to make a disclosure, or to provide advice in a particular form, that is written or oral. And certainly no obligation to provide advice in most forms. In this case it was clearly identified and written in a statement executed by the plaintiff which contained the information that the fiduciary was obliged to disclose, contained at least that and probably more. I do not see how the plaintiff can avoid the implications of that statement. I conclude that the fiduciary obligation was discharged in view of the statement and that as a result the motion must be granted.

We are satisfied that summary judgment was improvidently granted. As defendants acknowledge, Popp had a fiduciary duty to inform Dancy of the additional uninsured motorist coverage available to him. Walker v. Atl. Chrysler Plymouth, 216 N.J. Super. 255 (App.Div.1987); Sobotor v. Prudential Property & Cas. Ins. Co., 200 N.J. Super. 333 (App.Div.1984). Dancy's signature on the application immediately below the paragraph advising of the availability of additional UM coverage is ...


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