v. National Fire Insurance Co., 106 N.J. Super. 238, 242, 254 A.2d 819 (App. Div. 1969). In addition, the appellant must demonstrate reliance on that apparent agency. See Id.
In the instant appeal, the appellants merely allege that Investor's use of Trans Elite to solicit and negotiate policies established an agency relationship. They further allege that Investors' silence regarding its knowledge of Trans Elite's discussions Monarch bolsters a finding of apparent agency. Based upon this unsupported statement, this court cannot conclude that a reasonably prudent person would be justified in assuming that an apparent agency exists. Moreover, New Jersey law anticipates that brokers will negotiate and solicit policies. See N.J.S.A. 17:22A-2g. Therefore, appellants' agency claims should be rejected.
iii. Choice of Law
Without conducting any choice of law analysis, Judge Chesler's treatment of the agency issue assumes that New Jersey law applies to this case and neither party challenges that proposition. While such an analysis would not change Judge Chesler's ultimate conclusion, some discussion is warranted.
A federal court applying state law must apply the choice of law rules of the state in which it is located. Klaxon Co. v. Stentor Electric, 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). See also Dent v. Cunningham, 786 F.2d 173, 176 (3d Cir. 1986). Therefore, New Jersey choice of law rules govern in the instant case. New Jersey law commands that the law of the place of contracting should ordinarily be applied unless some other state has the "'dominant relationship' with the parties and issues." Id. In the insurance context, the place of contracting is the place where the parties executed and delivered the insurance policy. See Id. at 320 n.4. "If a company from another state uses an insurance broker to negotiate and purchase its insurance policies, then the place of contracting is the place where the broker negotiated the policies." Id. Here, although Investors is a New Jersey company, Trans Elite served as Investors' insurance broker authorized to place insurance in New York. Because Trans Elite negotiated the policies in New York, it appears that New York law should be applied unless some other state has a dominant relationship with the parties and issues.
If this court were examining the issue for the first time, it might have applied New York law, but I do not need to address the choice of law issues in a case where there is no true conflict between the insurance laws of each state. See Williams v. Stone, 109 F.3d 890, 893 (3rd Cir. 1997). In other words, if the laws of the states which might be applied to a relevant issue are not in conflict, there exists a false conflict and the court need not determine which law to apply. See High v. Balun, 943 F.2d 323, 325 (3rd Cir. 1991); Coons v. Lawlor, 804 F.2d 28, 30 (3rd Cir. 1986). Therefore, I must first examine New York law to determine if it conflicts with New Jersey law.
As with New Jersey law, it is a well settled principle of New York law that even though an insurance broker may act as the agent of the insurer for some purposes, brokers are generally deemed to be agents of the insured. Bohlinger v. Zanger, 306 N.Y. 228, 231-32, 117 N.E.2d 338 (N.Y. 1954). For example, a broker continues to be the insured's agent even where the insurer has authorized him to collect premiums on behalf of the insurer. See Id. Where an insurer authorizes a broker to act as his agent for a specific purpose, e.g. the payment of premiums, it does not authorize brokers to do other things like reinstate canceled policies. See Augustin v. Gilot, 152 Misc. 2d 666, 578 N.Y.S.2d 348, 352 (N.Y. Civ. Ct. 1991), reversed on other grounds, 158 Misc. 2d 627, 606 N.Y.S.2d 514 (1993) (appellate court reversed the lower court on its application of the law, but reaffirmed the broker's limited agency relationship with the insurer). A broker acts as the insurer's agent only where "there is some evidence of action on the insurer's part, or facts from which a general authority to represent the insurer may be inferred." Incorporated Village of Pleasantville v. Calvert Insurance Co., 204 A.D.2d 689, 612 N.Y.S.2d 441, 442 (N.Y. App. Div. 1994). Thus, New York law, like that of New Jersey, acknowledges that the insurance broker may occupy a hybrid position, but absent special circumstances, the broker serves as the insured's agent for the purpose of rejecting a policy or securing appropriate insurance. Because the instant case does not implicate any actual conflict between New Jersey and New York law, it is unnecessary to conduct a choice of law analysis and therefore, I find that Judge Chelser did not err by applying New Jersey law.
Finally, appellants argue that Judge Chesler erred by finding that even if Monarch did reject the policy, Monarch ratified the insurance policy because it was "not disputed" that it filed claims for losses in July, 1993 and requested that units be deleted by Investors from the then effective insurance policy. See Magistrate Opinion at 12,15. Appellants do not take issue with the finding that an insurance policy may be ratified by the acts of the insured. However, according to appellants, any claims that were filed or any requests for changes in coverage were filed under the old policy which had been canceled, GLP-002321. See Appellant's Br. at 18-19.
In light of the foregoing conclusion that Monarch never rejected the new policy, GLP-002818, I need not consider this argument. Nevertheless, I find appellant's argument somewhat incredulous because they were well aware that GLP-002321 had been canceled and that GLP-002818 was then in effect. Moreover, it appears that plaintiff's made their request to delete certain units under the new policy and not the old. See Richman Aff., Ex. B. Thus, even if I were to consider this argument, I would not be inclined to find appellant's argument -- that a genuine issue of material fact existed solely because Monarch alleges to have filed its claims under the old policy -- sufficient to survive summary judgment.
For the reasons detailed above, I find that the Judge Chesler's decision to grant summary judgment in favor of the defendant should be AFFIRMED.
ORDER - ENTERED on THE DOCKET 6/2 1997
This matter comes before the court pursuant to 28 U.S.C. § 636(c)(4) on plaintiff's appeal of Magistrate Judge Stanley R. Chesler's decision to grant respondent/defendant's motion for summary judgment; and this court, having considered arguments submitted in support of the appeal and the record before the court; and for the reasons detailed in an opinion issued this same day; and for good cause shown;
IT IS ON THIS 29th day of May, 1997
ORDERED that the Magistrate's decision to grant defendant's summary judgment motion is AFFIRMED.
Harold A. Ackerman, U.S.D.J.