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Public Service Electric & Gas v. Uphold

November 19, 1998

PUBLIC SERVICE ELECTRIC & GAS, PLAINTIFF-RESPONDENT,
v.
JEFFREY P. UPHOLD, DEFENDANT-RESPONDENT, AND PRUDENTIAL INSURANCE COMPANY, DEFENDANT-APPELLANT.



Before Judges Landau, Braithwaite and Wecker.

The opinion of the court was delivered by: Wecker, J.A.D.

Submitted October 28, 1998

[9]    On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Special Civil Part.

Robert A. Auerbach, attorney for appellant (Randi S. Greenberg, of counsel and on the brief). Beattie Padovano, attorneys for respondent Jeffrey Uphold (Gregg A. Padovano, of counsel and on the brief).

Defendant Prudential appeals from a summary judgment declaring that it owes coverage to defendant Jeffrey Uphold because its attempt to cancel an automobile insurance policy issued to Uphold was ineffective. *fn1 Summary judgment was simultaneously entered against Uphold in favor of plaintiff Public Service Electric & Gas on its suit against him for damages resulting after his automobile collided with a PSE&G utility pole. PSE&G's claimed damages were $4,620.20.*fn2 Prudential denied coverage for the March 22, 1996, accident, claiming that it mailed a notice of cancellation to Uphold on February 16, 1996, effective March 6, 1996. If Prudential's cancellation was effective, there was no insurance in force on the date of this accident.

The only issue addressed by the parties on this appeal is whether Prudential's proofs complied with the statutory requirement for effective cancellation of an automobile insurance policy pursuant to N.J.S.A. 17:29C-10. If that were the determinative issue, we would affirm the judgment, because Prudential's proofs do not comply with the statute. However, because Uphold never denied receiving Prudential's notice of cancellation, either in his pleadings or on the cross-motions for summary judgment, there is no material dispute of fact as to receipt. We conclude that the statute does not control. We therefore reverse.

In support of Uphold's motion for summary judgment, his attorney submitted his own certification, attaching copies of Prudential's "cancellation documents" and excerpts of the deposition of Prudential's representative. Uphold did not submit his own certification denying receipt of the notice of cancellation, and the record reveals no denial by Uphold that he actually received the notice. None of the parties addresses that fact before us.*fn3

We explained in Pawlick v. N.J. Auto. Full Ins. Underwriting Ass'n, 284 N.J. Super. 629 (App. Div. 1995), that under Celino v. Gen. Accident Ins. Co., 211 N.J. Super. 538 (App. Div. 1986), The provisions of N.J.S.A. 17:29C-10 are designed to insure that named insureds receive appropriate notice of cancellation. Subsequent to the 1980 amendment to the statute, an insurer could obtain summary judgment as a matter of law on that issue if the insurer could show strict compliance with the statutory requirements. Celino v. General Acc. Ins., 211 N.J. Super. 538, 542-43, 512 A.2d 496 (App. Div.1986). An insurer's proof of compliance with the requirements of the statute is necessary "in the face of an insured's denial of receipt ..." of the notice of cancellation. Id. at 542, 512 A.2d 496. However, where the insured has not denied receipt of the cancellation notice, strict compliance with the statute is not required unless the insured can show that prejudice resulted from the insurer's noncompliance. Lilly v. Allstate Ins. Co., 218 N.J. Super. 313, 325, 527 A.2d 903 (App. Div.1987). There is no allegation in this record that [the insured] failed to receive [the insurer's] notice of cancellation. Thus, we find it unnecessary to decide whether [the insuror's] documentation of its cancellation mailing methods satisfied the strict requirements of the statute.

[Pawlick, 284 N.J. Super. at 634 (emphasis added).]

As in Pawlick, we "find it unnecessary to decide whether [Prudential's] documentation of its cancellation mailing methods satisfied the strict requirements of the statute." Id.

In Celino coverage was sought on behalf of a person who was killed in the accident. Nevertheless, her mother certified to the contents of what she described as a meticulously maintained insurance file, which contained the insuror's "notice of premium refund," 211 N.J. Super. at 540, but no cancellation notice.*fn4 In addition, the loss payee, which was entitled to notice, had written to the insuror that its file contained "'no record . . . of the cancellation. . . .'" Id. Thus a genuine dispute was presented with respect to receipt, and compliance with the statutory requirements for effecting cancellation by means of a mailed notice was required.

Because compliance with N.J.S.A. 17:29C-10 is apparently still not universal, see, e.g., Valley Nat'l Bancorp. v. American Motorists Ins. Co., _____ N.J. Super. _____ (slip op. at 7-8) (October 27, 1998), we choose to explain the defects in Prudential's proofs. The statute reads, in pertinent part:

No written notice of cancellation or of intention not to renew sent by an insurer to an insured in accordance with the provisions of an automobile insurance policy shall be effective unless a. (1) it is sent by certified mail or (2) at the time of the mailing of said notice, by regular mail, the insurer has obtained from the Post Office Department a date stamped proof of mailing showing the name and address of the insured and b. the insurer has retained a duplicate copy of the mailed notice which is certified to be a true copy.

The statute "clearly prescribes two conjunctive conditions for effective notice of cancellation . . . ." Celino, 211 N.J. Super. at 541. First is the manner of delivery, which was met here by the date- stamped certification of mailing from the Post Office. See Ward v. Merced, 277 N.J. Super. 590 (App. Div. 1994), certif. denied, 140 N.J. 275 (1995). We reject Uphold's contention that that certification is ineffective because the Post Office stamp appears only on the last of the multi-page list of addressees, and not on the page where his name and address appears. Hodges v. Pennsylvania Nat'l Ins. Co., 260 N.J. Super. 217 (App. Div. 1992), upon which Uphold relies, is distinguishable. ...


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