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Delcampo v. New Jersey Automobile Full Insurance Underwriting Association

Decided: January 15, 1993.


Schwartz, J.s.c.



This is an action in which plaintiff seeks a declaration of coverage under a policy of automobile insurance issued on behalf of defendant, New Jersey Automobile Full Insurance Underwriting Association ("JUA"), by defendant Electronic Data Systems ("EDS") as servicing carrier, for an accident occurring on October 5, 1990, while plaintiff was operating a 1986 Pontiac Fiero on the Garden State Parkway. Plaintiff seeks recovery of PIP benefits, collision benefits for damage to his Pontiac and indemnity for moneys paid by him to the New Jersey Highway Authority for damage to its property caused by the accident. Defendant denies that it is under any liability to plaintiff and asserts that it does not

afford coverage for the October 5, 1990, accident because it sent plaintiff a notice of cancellation on September 6, 1990, which canceled the policy effective September 29, 1990, approximately six days before the accident.

Plaintiff has filed a motion for partial summary judgment on the issue of liability based in part upon the failure of defendant to respond to plaintiff's requests for admission for approximately nine months. The requests were served on January 29, 1992, and defendant JUA did not reply to them until September 29, 1992, about four weeks after plaintiff's motion was filed. One of the requests (request number 2) asked defendant to admit that the policy was in effect on October 5, 1990. Although that request was denied by defendant when it responded to the requests on September 29, 1992, plaintiff seeks to have the request be deemed admitted pursuant to R. 4:22-1 because defendant did not respond within thirty days and did not obtain an extension of time within which to respond.

Defendant has filed a cross-motion for summary judgment, seeking dismissal of the action upon the ground that it allegedly complied with insurance laws and effectively canceled the policy in question on September 29, 1990. Defendant also seeks leave to file its reply to plaintiff's requests to admit out of time.

Under R. 4:22-1 and R. 1:3-4 the court has the power to extend the time in which a party must answer requests for admission, and "that power should be exercised where the interests of Justice require." Hungerford v. Greate Bay Casino Corp., 213 N.J. Super. 398, 403, 517 A.2d 498 (App.Div.1986); Klimowich v. Klimowich, 86 N.J. Super. 449, 453, 207 A.2d 200 (App.Div.1965). The court, in the interests of Justice, may either extend the time of a party to respond, or may provide appropriate relief "by relaxing the rule in such manner as may appeal to the discretion of the trial court." Ibid. See also R. 1:1-2, which allows the court to relax any rule if adherence to it would result in an inJustice.

The purpose of requests for admission has been held to be limited to establishing for purposes of trial underlying facts for which there is no real controversy but for which proof may be difficult or expensive. Essex Bank v. Capital Resources Corp., 179 N.J. Super. 523, 532, 432 A.2d 936 (App.Div.), certif. den. 88 N.J. 495, 443 A.2d 710 (1981). However, "a request for admissions should not be used in an attempt to establish the ultimate fact in issue." Id., 179 N.J. Super. at 533, 432 A.2d 936.

Moreover, under R. 4:22-2 the trial court is empowered to permit a "withdrawal or amendment of the admission," and the court may exercise its discretion to permit such withdrawal or amendment "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits." Our appellate courts have interpreted this rule as recognizing the subservience of requests for admission to consideration of the merits and as requiring a showing of prejudice by the party resisting the motion to permit withdrawal or amendment of the admission. Gilborges v. Wallace, 153 N.J. Super. 121, 130-31, 379 A.2d 269 (App.Div.1977), aff'd on this issue, 78 N.J. 342, 348, 396 A.2d 338 (1978).

Applying these principles, the court is convinced that defendant JUA should not be deemed to have admitted plaintiff's request to admit number 2. While the certification of Victoria Tomasella dated October 16, 1992, attempts to excuse the delay, that certification merely demonstrates that the failure of counsel for the JUA to respond in a timely manner resulted from oversight by counsel. Tomasella explains that another attorney, formerly associated with her firm who had responsibility for this file when the requests to admit was served on January 29, 1992, waited twenty-eight days before forwarding the requests to the client. The requests were then forwarded to "HMC" as servicing carrier for the JUA. During oral argument of this motion Tomasella advised the court that EDS was the servicing carrier for the

JUA on the dates when the policy was underwritten, the cancellation notices were issued and when plaintiff's accident occurred. Thereafter EDS withdrew or was discharged as a servicing carrier for the JUA and all EDS files were turned over to HMC. The file was assigned to Tomasella in June 1992, and in early July 1992 she contacted HCM to complete discovery. Tomasella's certification does not state whether the requests to admit were discussed at that time or why it should have taken so long to respond since the requests did not seem complicated and certainly counsel should have known that her client would deny request number 2 since the JUA was asserting a cancellation defense.

Nothing was done by counsel for the JUA prior to the filing of the present motion by plaintiff to obtain an extension of time to answer the requests, either by consent of counsel or by motion with the court. Because the EDS underwriters had the file in this matter and were the only ones with personal knowledge of the issuance of the cancellation notice, the JUA renamed EDS on September 14, 1992, to act as servicing carrier on this matter. Approximately two weeks later, counsel for defendant JUA served its reply to plaintiff's request to admit.

Notwithstanding this inexcusable delay in responding to plaintiff's request to admit, counsel for plaintiff conceded during the oral argument of this motion that he had no information to indicate that anyone in his office made any phone calls or wrote any letters to defendant's counsel concerning the failure of the JUA to reply to the requests to admit. However, it is clear that plaintiff has been aware since November 1990 that defendant's primary, if not sole defense on liability was its cancellation defense, and there is no dispute that plaintiff received a notice of cancellation in a timely fashion. Accordingly, the interests of Justice require that the rules be relaxed to allow defendant's response to plaintiff's requests to admit to be deemed filed in a timely fashion. In addition, the request in question is improper since it seeks an admission as to the "ultimate fact in issue." Essex Bank v. Capital Resources Corp., supra. Therefore, any

admission which may otherwise have arisen under R. 4:22-1 by reason of defendant's failure to respond within thirty days is held not to be binding upon defendant, and defendant is granted leave to withdraw such admission under R. 4:22-2. Plaintiff has failed to demonstrate any prejudice to him from the withdrawal of that admission. Accordingly, to the extent that plaintiff's motion for partial summary judgment as to liability relies upon the JUA's failure to respond to his request for admission number 2, the motion will be denied.

With respect to the merits of plaintiff's motion and defendant's cross-motion, the papers do establish that plaintiff, by his own admission, received defendant's notice of cancellation in a timely fashion. Roberta McWilliams, an underwriter for EDS, has certified that EDS complied with the provisions of N.J.S.A. 17:29C-10 and has attached to her certification a copy of a certificate of mailing (Exhibit G) and a copy of the notice of cancellation and a certification by Carmella Riley executed on the date of mailing of September 6, 1990, stating that the copy of cancellation notices labeled from number WP5N-1 to and including number WP5N-300 are true copies of the mailed cancellation notices (Exhibit F). There is no indication that the cancellation notice sent to plaintiff had one of those numbers so as to verify that the certification accompanying the cancellation notices mailed by EDS on September 6, 1990, complied with the aforesaid statute as interpreted by the court in Celino v. General Acc. Ins. Co., 211 N.J. Super. 538, 543, 512 A.2d 496 (App.Div.1986). Moreover, McWilliams's certification does not establish either that the purported "certificate of mailing" attached as an exhibit to her certification is an approved United States Postal Service form of certificate of mailing and indeed Exhibit G fails to conform to the form specified in Hodges v. Pennsylvania National Insurance Co., 260 N.J. Super. 217, 615 A.2d 1259 (App.Div.1992). In addition, the McWilliams certification does not establish that the amount of postage on the purported "certificate of mailing" is the correct amount of postage for the number of cancellation notices

mailed by EDS from the Mount Laurel, New Jersey, post office on September 6, 1990. Under Hodges these deficiencies in proof would mandate denial of the JUA's cross-motion for summary judgment were it not for plaintiff's admission that he received the cancellation notice prior to the effective date of cancellation of September 29, 1990. However, in view of that admission by plaintiff, he was not prejudiced by any failure by EDS to strictly comply with the requirements of N.J.S.A. 17:29C-10. Lilly v. Allstate Ins. Co., 218 N.J. Super. 313, 325, 527 A.2d 903 (App.Div.1987).

Plaintiff argues, however, that the notice of cancellation was invalid and unenforceable because the reason given for cancellation, namely, plaintiff's failure to supply evidence of registration in New Jersey of the 1986 Pontiac Fiero prior to the effective date of cancellation, is not one of the grounds for cancellation authorized by N.J.S.A. 17:29C-7(A). Plaintiff further argues that JUA carriers are bound by that statute because the legislation which creates the JUA, and in particular N.J.S.A. 17:30E-6, authorizes the Commissioner of Insurance to adopt a "Plan of Operation", which among other things is to provide "minimum requirements for the selection and performance of servicing carriers," and contains the following exception: "except that nothing herein shall be interpreted to affect the provisions of P.L.1968, C. 158 (C. 17:29C-6 et seq.)." N.J.S.A. 17:30E-6(a).

The affidavits of plaintiff Michael DelCampo and his mother, Rosalie Day, establish that plaintiff initially obtained insurance for a 1977 Ford Thunderbird through the JUA effective May 22, 1990. (Exhibit 2 to plaintiff's third affidavit). The policy declaration for the 1986 Pontiac Fiero was issued effective August 8, 1990. (Exhibit D to plaintiff's initial moving papers). The first affidavit of Day establishes that the Thunderbird was sold for scrap in July 1990 and that the Thunderbird was insured under the same policy as the 1986 Pontiac Fiero. Day contacted her broker, The Donald Ross Agency ("Ross" or "the Ross Agency"), who was the producer of this policy, and informed Ross or one of his employees that

her son intended to purchase another car shortly. She was advised to keep the policy in force until the new car was purchased and that it would then be added to the existing policy. On August 2, 1990 plaintiff ordered the Fiero and Day called Ross that day to inform Ross of the purchase. Ross assured her that the existing policy would cover the Fiero. Plaintiff continued to make payments of his policy premiums when due assuming the Fiero was covered.

On September 6, 1990, the JUA, through its servicing carrier EDS, sent plaintiff a notice of cancellation effective September 29, 1990, which reads as follows:

You are hereby notified that your policy will be canceled at the cancellation effective date shown above. The reason for cancellation is:


1. A copy of New Jersey Vehicle Registration(s) for the following vehicles or a current vehicle ...

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