Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

UNGER v. AFCO CREDIT CORP.

September 30, 2002

GLENDA UNGER, PLAINTIFF,
V.
AFCO CREDIT CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Mary L. Cooper, United States District Judge

MEMORANDUM OPINION

BACKGROUND: THE PARTIES; THE PREMIUM FINANCE AGREEMENT; INTENT TO CANCEL AND CANCELLATION; and, MOTION PRACTICE

I. The Parties

The plaintiff, Glenda Unger ("Unger"), is a resident of New Jersey and allegedly held an insurable interest in a commercial building in Lakewood, New Jersey ("the Lakewood property"). (Am. Compl. at 2; Unger Cert. dated 1-28-02 ("1-28-02 Cert.") at 1-2.) Since 1986, she had an office near the Lakewood property to oversee her real estate holdings, run a taxicab company, sell cars, and receive mail. (Cert. in Supp. of Pl.'s Resp. filed 2-8-02 ("Pl.'s 2-8-02 Cert."), Ex. A, Tr. of Unger's 8-2-01 Dep. ("Unger Dep.") at 11, 14, 20-24.) Scottsdale, an Arizonan insurer, issued policy number CPS0322732 ("the policy") to Unger in July 1999 covering, inter alia, fire damage to the Lakewood property from July 23, 1999, through July 23, 2000. (Scottsdale's Br. in Supp. of Mot. for Summ. J. ("Scottsdale Br."), Ex. C.) In a July 22, 1999, premium finance agreement ("the agreement"), Unger contracted with the defendant Afco Credit Corp. ("Afco"), a Pennsylvanian premium finance company, to finance her one-time premium payment to Scottsdale and agreed to repay Afco on a monthly basis. (Id., Ex. B.) The defendant USI Midlantic, Inc. ("USI") was Unger's insurance agent as she procured coverage and premium financing. (Am. Compl. at 5-6.)See footnote 1*fn1

II. The Premium Finance Agreement

The agreement included: (1) a limited-power-of-attorney provision appointing Afco as Unger's attorney-in-fact with authority to direct Scottsdale to cancel the policy — upon giving any required statutory notice — if she missed a payment, and permitting Afco to execute and deliver on her behalf all forms, instruments, and notices concerning the policy in furtherance of the agreement; and (2) a provision that New Jersey law governed. (Scottsdale Br., Ex B. at ¶¶ 2, 14, 23.) Thus, the manner in which Afco could direct Scottsdale to cancel the policy was to be in accordance with the New Jersey Insurance Premium Finance Company Act ("the Act"). See N.J.S.A. §§ 17:16D-1, 17:16D-13(a).

Afco was required under the Act to give Unger at least ten days written notice by mail of its intent to direct Scottsdale to cancel the policy if she missed a payment, unless she cured her default; Afco was also required to "send" a copy of the notice of intent to cancel to USI. N.J.S.A. § 17:16D-13(b). Afco could then request cancellation of the policy in Unger's name after the ten-day period expired by mailing to Scottsdale a notice of cancellation; the policy would then be cancelled as if the notice had been submitted by Unger herself. N.J.S.A. § 17:16D-13(c). Afco was also required to mail a notice of cancellation to Unger's last known address and to USI. Id.

III. Intent to Cancel and Cancellation

It was James's job — according to Quish — to review the notices, put them in envelopes, and bring them to the mail room. (Id. at 13, 81-84.) The mail-room employees, however, neither signed affidavits attesting that these notices were mailed, nor did they obtain proof of receipt from the post office. (Id. at 24-25, 84-85.) Quish also testified that he knew neither who ran the mail room nor who was in charge of affixing postage to the mail in Kansas. (Id. at 94-95.)

Unger testified at her eventual deposition that neither she nor her family-member employees received the notice of intent. (Unger Dep. at 36-38, 58.) Her sister, a former employee, agreed with this testimony at her deposition and testified that she had always referred any notices of intent to cancel policies to Unger. (Pl.'s 2-8-02 Cert., Ex. D, Tr. of Ellen Goldberg's 8-28-01 Dep. ("Goldberg Dep.") at 31-33.)

Afco allegedly mailed notices of cancellation of the policy to Unger and Scottsdale from Kansas on October 8, 1999; the cancellation was to be effective six days later. (Scottsdale's Br., Ex. J., Notice of Cancellation; Quish Dep. at 62-63, 78-79.) Afco apparently kept a copy of the notice of cancellation allegedly mailed to Unger. (Id.) But Afco failed to keep a copy of the original notice of cancellation allegedly mailed to Scottsdale. (Id. at 66). Also, according to Scottsdale itself, Scottsdale "did not receive a copy of the Notice of Cancellation mailed on October 8, 1999, until April 3, 2000, when it was faxed to Scottsdale's broker." (Pl.'s 2-8-02 Cert., Ex. F, Scottsdale's Resp. to Pl.'s Req. to Admit dated 10-29-01 ("Scottsdale's Resp. to Req. to Admit").) As to a list showing Unger's notice of cancellation, Quish testified as follows:

COUNSEL: [W]hen a notice of cancellation goes out, is a form generated like the notice of intent?
QUISH: We have a listing. There is a listing, a notice of cancellation listing for that day.
COUNSEL: . . . I want to know if there's such a document for the notice of cancellation that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.