On appeal from Superior Court of New Jersey, Law Division, Camden County, L-1309-01.
Before Judges Conley, A. A. Rodriguez and Lefelt.
The opinion of the court was delivered by: Conley, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In 1997 defendant insured was injured in an automobile accident. He received $22,768.79 from his insurer, plaintiff, in Personal Injury Protection (PIP) benefits under his automobile policy. Defendant received treatment from American Spinal, Inc., of which he was a member of its board of directors. Plaintiff sought to investigate possible fraud and, eventually in January 2001, attempted to schedule an examination under oath pursuant to defendant's contractual obligation to cooperate.*fn1
Apparently, American Spinal, Inc., was being investigated by the State Grand Jury for insurance fraud and defendant had been served a Grand Jury subpoena. There is nothing in the record before us as to the scope of the grand jury matter, except the following comments by defense counsel during oral argument:
[S]everal months ago . . . the Attorney General's Office raided [American Spinal, Inc.'s, chiropractic office]. There were two Camden City police officers arrested. Actually, one was arrested who was an active City police officer. The other one was retired.
The allegation was . . . that the retired officer was obtaining copies of all of the police accident reports generated during any particular week from the active police officer, who was a sergeant in the traffic division. He would then get those police accident reports. He would take them to somebody who would then knock on the doors of these accident victims and try to recruit them for medical treatment at this facility.
The Attorney General's Office has conducted an extensive investigation. They raided the offices. I have a lot of contact with the Deputy Attorney General in charge . . . . He has told me, my client's a target. We have received a subpoena to testify before Grand Jury. We have indicated we're exercising our Fifth Amendment privilege in that matter. For that reason, the [DAG] did not require our appearance before the Grand Jury just to assert the Fifth Amendment privilege. And, the [DAG] has told me that he expects an indictment to occur within the next three to six months . . . and [Defendant] is a target of the case.
Aside from the fact that both the Grand Jury investigation and plaintiff's investigation focus upon potentially fraudulent conduct, there is no factual correlation. Defendant was a direct accident victim. He was not a recruited victim. Moreover, there is nothing in the record before us that would suggest that the impetus for the insurer's fraud investigation was to assist the State or that both are targeting the same activity. Neither is there anything in the record to suggest that plaintiff's effort to investigate possible fraud in connection with defendant's PIP coverage is unreasonable or in bad faith.
That defendant has a contractual obligation to submit to an examination under oath cannot be in dispute. N.J. Auto. Full Ins. v. Jallah, 256 N.J. Super. 134, 141 (App. Div. 1992). See Prudential Prop. & Cas. v. Nardone, 332 N.J. Super. 126 (Law Div. 2000); Ransom v. Selective Ins. Co., 229 N.J. Super. 43 (Law Div. 1988). See also N.J.S.A. 39:6A-13(g). Indeed, defendant does not deny this obligation. What defendant does claim is a right not to answer any questions based upon the Fifth Amendment. He cites no legal support, aside from the following:
The Fifth Amendment of the United States Constitution provides that "no person . . . should be compelled in any criminal case to be a witness against himself." US Constitution, Amend. 5. The Fifth Amendment right against self-incrimination applies to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8 (1964). The protection entitles the defendant to refuse to testify at a criminal trial, and "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). The Fifth Amendment applies to any proceeding to "disclosures which the witness reasonably believes could be used against him in a criminal prosecution or could lead to other evidence that might be so used." Kastigar v. United States, 406 U.S. 441, 444- 45 (1972).
These general propositions are, as far as they go, an accurate reflection of New Jersey law. E.g., State v. P.Z., 152 N.J. 86, 100-01 (1997). But they do not go far enough.
To begin with, the Fifth Amendment applies to a "proceeding," Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed. 2d 409, 418 (1984), or "action", N.J.S.A. 2A:84A-19, N.J.R.E. 503. Defendant offers no authority for the proposition that the examination under oath, required under the parties' private contract, is a "proceeding" or "action" within the protection of the Fifth Amendment. See generally, Examination of Insured, 16 A.L.R.5th 412, § 20(a) (2001) (16 A.L.R.5th 412); Michael A. Hamilton, Property Insurance: A Call for Increased Use of Examinations Under Oath ...