Before Judges Baime and Eichen.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 1999
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
In this action for negligent failure to procure adequate insurance coverage for the interior structure of a condominium unit owned by plaintiffs, the principal issue presented on appeal is whether the trial court erred in refusing to instruct the jury concerning plaintiffs' comparative fault.
These are the relevant facts. In September 1994, after thirty-seven years of residing in Bergenfield, plaintiffs Benjamin and Beatrice Aden sold their house and purchased a condominium unit for $48,000 in Sussex County. Benjamin Aden (Aden), who was a retired building inspector, contacted Robert F. Fortsh to secure coverage for his new unit. Fortsh was a special agent for Prudential Insurance Company and had been plaintiffs' insurance broker for many years, having sold them automobile and homeowners insurance.
Aden and Fortsh spoke a few times on the telephone concerning coverage for the condominium unit. The substance of those conversations was seriously contested at trial. Aden claims he told Fortsh to secure "a policy that would cover any losses [he] might have in [his] condo ... [that he just] wanted coverage." He further stated that Fortsh asked him about the value of the contents and the price of the unit, and that sometime after their first conversation, advised him that the premium would be about $98 per year. *fn1 Aden testified that Fortsh asked him no other questions and never told him to inquire whether the master deed or the condominium association by-laws provided any insurance coverage for the unit. Aden acknowledged receiving the policy and its renewal, but admits he never read either of them. *fn2
Fortsh contradicted Aden's testimony. According to Fortsh, Aden told him he only wanted "minimum" coverage and acknowledged the $1,000 coverage limitation on interior structural damage. He stated that he fully explained to Aden the type and amount of coverage, claiming he told Aden that plaintiffs would only be covered for $1,000 for interior structural damage, but equivocated on this point during cross-examination. He stated that he told Aden twice to inquire whether there was other coverage provided by the by-laws or in the master deed. Fortsh further testified that he believed Aden would find out what coverage already existed under the master deed or by-laws and advise him if plaintiffs wanted more than the "default" minimum coverage of $1,000 for the interior structure. He further stated that he thought Aden "was very well aware that I would not be looking at the master deed.... My advice was to call the association ... [to] see what you're covered for." Based on his prior experience with condominium insurance, Fortsh stated that he assumed the condominium would indeed provide adequate coverage in case of fire damage to the interior structure of the unit. In fact, no such coverage existed.
On June 26, 1996, a fire damaged the interior structural walls and fixtures of the condominium unit. The cost of repairs was approximately $20,000. After learning of the $1,000 policy limit, plaintiffs commenced this action.
At trial, plaintiffs presented expert testimony that it was Fortsh's duty to know the coverage provided by the master deed and by-laws before issuing a condominium policy, and that he was negligent in issuing the policy without that information. Fortsh's expert presented contrary testimony. He stated that a broker's customary duty is only to explain the nature of the coverage requested and inform the insured to investigate whether the condominium association offered coverage for interior structural damage, and to advise the broker if it did not have such coverage.
Prior to the judge's instructions to the jury, Fortsh submitted written "Requests for Charge," requesting that the jury be instructed concerning plaintiffs' comparative fault based on their failure to read the policy or renewal documents.
The trial judge rejected Fortsh's request for a comparative negligence charge and did not instruct the jury that it could consider plaintiffs' conduct and surrounding circumstances in allocating percentages of fault between the parties. It was the judge's view that unless the jury concluded that plaintiffs were the sole cause of the inadequate coverage, Fortsh could not prevail. The only reference to plaintiff's conduct came in the proximate cause portion of the charge where, after defining "proximate cause," the judge stated:
Now, defendant has offered testimony that the plaintiff Aden's own actions or inactions were the sole proximate cause of having virtually no interior structural and fixture insurance coverage for the fire damage to his condominium. If you find that defendant has proven by a preponderance of evidence that plaintiff was the sole proximate cause of this lack of insurance coverage, you will find in favor of defendant and dismiss plaintiff's case.
On the other hand, if you find that the plaintiff has proven by a preponderance of evidence the negligence of the defendant in providing inadequate and incomplete advice and procurement of insurance coverage, and that that was a substantial factor in bringing about the losses that occurred, and that some harm to the plaintiff was foreseeable from the ...