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Hodges v. Pennsylvania National Insurance Co.

Decided: October 19, 1992.

KIMBERLY HODGES, PLAINTIFF-APPELLANT,
v.
PENNSYLVANIA NATIONAL INSURANCE COMPANY ON BEHALF OF NJAFIUA, DEFENDANT-RESPONDENT



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

Antell,*fn1 Dreier and Skillman. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Plaintiff appeals from a summary judgment dismissing her complaint for PIP benefits because her mother's insurance policy was canceled for nonpayment of premiums. The issue in this case concerns defendant's proof that the notice of cancellation was properly mailed.

This matter arises out of a motor vehicle accident which occurred on April 7, 1989 involving the plaintiff, Kimberly Hodges, who was operating a vehicle owned by her mother, Alva L. Hodges. On March 15, 1990, plaintiff filed a complaint against the defendant, Pennsylvania National Insurance Company, for refusal to pay medical bills and property damage compensation. The trial Judge heard the motions but reserved decision in order to afford defendant time to produce a pertinent post office receipt. Defendant submitted additional proofs, and the trial court thereupon granted summary judgment for defendant, concluding that defendant's originally-submitted evidence satisfied the applicable statutory requirements for proof of mailing.

Acting as an agent for the New Jersey Automobile Full Insurance Underwriting Association (NJAFIUA or JUA), defendant Pennsylvania National Insurance Company*fn2 had written an insurance policy to cover plaintiff's mother's vehicle from May 21, 1988 through May 21, 1989. Plaintiff's name appeared on her mother's policy as an additional driver. The mother is the only named insured.

Defendant canceled Alva Hodge's policy on December 16, 1988 for failure to remit a premium payment. Defendant prepared a timely notice of cancellation and claims to have mailed it to Alva L. Hodges by regular mail on November 28, 1988. As proof of its mailing the cancellation notice to Alva L. Hodges, defendant has offered two pages from a November 20, 1988 "JUA Mailing List." The first page lists the name of Alva L. Hodges of 447 Princeton Avenue in Trenton as an insured who was scheduled to be sent a notice of cancellation. The final page bears two November 28 stamps of the Harrisburg-Linglestown Post Office in Pennsylvania and two stamps of postage of $39.00 and $99.75. These two postage stamps together total $138.75. The list claims a "total mailing" of 640 notices.

Plaintiff contends that a mailing of 640 notices at $.25 per piece (the 1988 postage stamp price) should have totalled $160. Because defendant paid only $138.75, plaintiff contends that all of the listed notices may not have been mailed.

The signature of one of defendant's employees appears at the end of the list below a pre-printed certification which reads in full: "I hereby certify that I personally mailed in the U.S. Post Office on the date indicated hereon, a notice of cancellation or non-renewal to the insured, a true copy of which appears above, and at the same time, received a receipt from the U.S. Post Office." The date of November 28, 1988 is stamped above the employee's signature.

Plaintiff also submitted the affidavit of Robert Morgan, Consumer Affairs Representative of the Harrisburg Post Office. Mr. Morgan explained that when twenty or more letters are mailed by certified mail, it is customary for the mailing party to prepare a list and have the list stamped with a legitimate authorized mailing receipt. Mr. Morgan certified that the Post Office stamp affixed to the "JUA Mailing List", described above, is "the legitimate authorized mailing receipt and as such has been properly prepared according to our office." Mr. Morgan makes no comment about procedures for letters sent by regular mail.

Lastly, plaintiff produced the affidavit of Robert E. Troupe, a senior business analyst for defendant. Mr. Troupe stated that defendant implemented the policy of having the Post Office stamp the end of JUA mailing lists at the Post Office's suggestion. Defendant has followed this procedure since April of 1989. Mr. Troupe states that the stamped JUA list upon which Alva Hodge's name appears was properly prepared according to company policy and according to the Post Office's request.

Plaintiff's counsel certified that the Post Office's standard proof-of-mailing procedure differs from defendant's use of a pre-printed mailing list. Plaintiff's counsel claims that the U.S. Postal Service utilizes a "Certificate of Mailing," PS Form 3817, for the purpose of documenting proof of mailing by regular mail. Prior to stamping this receipt, Postal Service employees individually compare the receipt with the item being mailed. These forms are available in ...


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