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Mazur v. Selected Risks Ins. Co.

Decided: May 16, 1989.

STANLEY MAZUR, PLAINTIFF,
v.
SELECTED RISKS INS. CO., DEFENDANT-APPELLANT, AND KEN CURTIS, T/A KEN CURTIS AGENCY, DEFENDANT-RESPONDENT



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

Pressler, Scalera and Stern. The opinion of the court was delivered by Scalera, J.A.D.

Scalera

Plaintiff Stanley Mazur (Mazur) was injured in an automobile accident in 1984. Thereafter, he sought payment from Selected Risks Insurance Company (Selected) for personal injury protection (PIP) benefits. Selected denied Mazur's request because his vehicle was insured under a commercial policy, and as such, there was no provision for PIP benefits.

Mazur instituted this suit against Selected to recover for PIP benefits, and also against his insurance broker, Ken Curtis, t/a Ken Curtis Agency (Curtis) based on the latter's failure to give him appropriate advice and insurance coverage. At trial, the jury returned answers to a series of special interrogatories. By those answers, it determined that Curtis was negligent in failing to properly advise Mazur and provide him with the insurance coverage for his medical expenses and awarded him $10,000 to cover his medical bills. It also determined that even though the insurance policy did not specify that no PIP benefits coverage was included, Selected was not negligent.

After the jury verdict was returned the parties agreed to have the trial court rule on Curtis' crossclaim against Selected for indemnification. By letter opinion it determined that Selected must indemnify Curtis because Curtis' negligence "did not proximately cause" the loss. It is this latter decision that is the focus of this appeal.

The salient facts, as settled by the jury verdict and by stipulation, may be recited briefly. Mazur was employed as a freight conductor for Conrail. In 1984, prior to the accident, he owned an Oldsmobile Cutlass and a small Subaru pickup truck. During the winter, Mazur supplemented his income by cutting

firewood on a farm and delivering it to homes in the area with his Subaru pickup truck.

Mazur had dealt with Curtis as his insurance broker for several years, and had obtained automobile insurance from him on several occasions. Prior to the accident, Mazur went to Curtis to arrange insurance coverage for his pickup truck and spoke with Curtis' son, Kevin Curtis (Kevin). Mazur told him that he wanted "full coverage" on the truck similar to that which he had on the Oldsmobile (which carried PIP benefits coverage). When Kevin learned that Mazur used the truck to deliver firewood, he told Mazur that he could purchase the same insurance coverage at a cheaper rate if it was covered as a commercial vehicle, but assured Mazur that the coverage would be "the same" as that on the Oldsmobile. Kevin erroneously thought that any medical bills incurred by Mazur in an accident involving the truck would be covered under Mazur's employee medical benefits insurance. Mazur followed Kevin's advice and purchased the recommended coverage which did not include any reimbursements for medical bills by way of PIP benefits or medical payments coverage (Med Pay).

While driving his Subaru pickup truck in November 1984, Mazur was involved in an automobile accident in which he sustained serious injuries requiring extensive medical treatment. After the accident, Mazur spoke to Kevin, who told him that the medical bills from the accident should be covered under the policy on the truck. However, when Mazur submitted his medical bills to Selected, it denied payment because there was no such coverage.

At trial Mazur established the facts heretofore recited and also produced an insurance expert who opined that Curtis had breached his professional obligation to Mazur by "failing to provide the type of coverage that he had indicated to Mazur that he was obtaining, and secondly by giving improper, inadequate advice." He indicated further that a prudent insurance agent would have provided better advice than that provided by

Kevin and would have advised Mazur to obtain personal injury and medical coverage for his vehicle which ordinarily would provide reimbursement ...


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