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Strulowitz v. Provident Life and Casualty Insurance Company

February 10, 2003

LEONARD STRULOWITZ, O.D. AND LEONARD STRULOWITZ, O.D., P.A., PLAINTIFFS-APPELLANTS, AND JODI BRUDNO, O.D., PLAINTIFF,
v.
PROVIDENT LIFE AND CASUALTY INSURANCE COMPANY, DEFENDANT-RESPONDENT, AND UNION CENTRAL LIFE INSURANCE COMPANY, UNUM LIFE INSURANCE COMPANY OF AMERICA, MUTUAL BENEFIT LIFE INSURANCE COMPANY AND/OR ITS SUCCESSORS IN INTEREST, PAUL REVERE LIFE INSURANCE COMPANY, HARVEY GELLER, SCOTT SMALL, AND LARRY STRULOWITZ, DEFENDANTS.



Before Judges Pressler, Ciancia and Hoens. On appeal from the Superior Court of New Jersey, Law Division, Morris County, MRS-L- 2522-99.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 22, 2003

The gravamen of this appeal is a dispute over insurance coverage. On cross-motions for summary judgment, the trial court concluded essentially that plaintiff Leonard Strulowitz did not have standing to seek enforcement of the policy issued by defendant Provident Life and Casualty Insurance Company (Provident). In so doing, the court focused on the well known tenets often applied to the interpretation of insurance contracts. It did not, but should have, considered the law of standing as an element of justiciability. N.J. Citizen Action v. Riviera Motel, 296 N.J. Super. 402, 411 (App. Div. 1997). Viewed from that perspective, we believe it to be clear that Strulowitz is a real party in interest who should be allowed to litigate his claim. R. 4:26-1.

At all relevant times, Strulowitz was an optometrist and sole shareholder of Leonard Strulowitz, O.D., P.A. (the Association). Dr. Jodi Brudno was an optometrist employed by the Association.

In May 1990 Strulowitz applied to Provident for a business buy-out expense disability insurance policy. The policy issued on October 3, 1990, although it was effective retroactive to August 1, 1990. As we understand it, this type of policy is a variation of "key-man" insurance. *fn1 In simple terms, the carrier agrees to pay a designated sum to a payee when the insured becomes disabled in order to facilitate the buy-out of the insured from the business by the payee. In the present instance, Strulowitz was the insured and paid the premiums on the policy. Brudno was designated as the payee in apparent anticipation of the buy-out agreement that she entered into with Strulowitz after the policy issued. Although the Association would typically be designated the owner of such a policy, for reasons not entirely clear Brudno was so designated.

On August 24, 1990, before the policy issued, Strulowitz wrote to Catherine M. Phillips, CLU, an executive brokerage consultant with Provident, and asked several questions about the policy. By letter of October 15, 1990, Phillips responded, stating in part:

In the event of total disability, the benefits of this policy are paid as reimbursement to an individual or entity for the purchase of your ownership interest (stock) in Leonard Strulowotz [sic], P.A. As stated in the application, Dr. Jodi Brudno is the loss payee. However, this may be changed at any time, by requesting the change in a letter under your signature. It is not necessary for Provident Life to see the agreement until the claim is made. No approval of this agreement is necessary, as Provident is not a party to this agreement. The agreement is between you and Dr. Brudno, or whomever else may be named at a later point. The agreement may be changed at any time prior to disability, subject to approval by the parties to the agreement. At time of claim our company pays the benefits of this policy based on the most recent signed and dated Buy-Sell Agreement for Leonard Strulowitz, P.A.

A buy-sell agreement between Strulowitz and the Association on one hand, and Brudno on the other hand, was executed on November 1, 1991. It is a nineteen page document which, in part, states that Strulowitz will cause the Association to purchase insurance to help fund the purchase of Strulowitz's stock shares in the Association should he become disabled. The agreement also provided that the Association, referred to as the Corporation, "shall be the sole owner of the policy and the beneficiary of the policy will be Dr. Brudno." The proceeds of the policy were to be paid to a trustee and then used toward the purchase of stock from Strulowitz. As part of the agreement, Brudno agreed to buy all of the stock in the Association for a specified sum in excess of $1,500,000. The buy-sell agreement was binding on the parties for three years.

On April 30, 1993, while the buy-sell agreement was still in effect, Strulowitz made a claim under the policy asserting he was disabled. For reasons we need not now detail, the claim was denied and Strulowitz initiated suit in January 1995. Brudno was named as a plaintiff, although the circumstances concerning how she became a party to the suit are disputed. Provident answered and subsequently counterclaimed against all plaintiffs, including Brudno. The counterclaim in part alleged insurance fraud and sought damages, fees, and expenses pursuant to N.J.S.A. 17:33A-7. At the urging of Provident, Brudno in 1999 withdrew from the litigation, settled with Provident, and terminated the buy- sell agreement. As part of that settlement, Provident's counterclaim against Brudno was dismissed. Thereafter, Provident filed a summary judgment motion alleging that only Brudno had the right to seek benefits under the policy, and that neither Strulowitz nor the Association had standing to do so. Provident also asserted Brudno had "voluntarily rescinded the policy" effective January 31, 1999. Provident alleged other grounds as a basis for summary judgment, but we need not address them in light of the trial court's disposition on the standing issue.

The trial court characterized Provident's summary judgment motion as seeking dismissal of the complaint "primarily on the issues that relate to Dr. Strulowitz's role and lack of standing to sue for benefits directly to him under the policy." The court went on to find that the insurance policy "is a contract between Provident and Brudno. And although Dr. Strulowitz is a named insured, he is not a party.

And this court finds he has no claim or authority with respect to the rights or obligations therein under the facts of this case." Toward the end of the opinion the court stated, "[s]o, in summary, I'm satisfied that because Dr. Brudno is the policy owner and the loss payee, she alone had the rightly [sic] authority to affect that policy and to receive proceeds under it."

As previously indicated, R. 4:26-1 permits an action to be prosecuted by the real party in interest. Our courts have liberally construed this provision. See Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 80-81 (App. Div. 2001). Indeed, it has been said that "[t]he New Jersey cases have historically taken a much more liberal approach on the issue of standing than have the federal cases." Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 101 (1971). A sufficient stake in the matter and a genuine adverseness are the basic requirements of standing. N.J. Chamber of Commerce v. N.J. Elec. Law Enforcement Comm'n, 82 N.J. 57, 67 (1980). A party need show only a "substantial likelihood" that he or she will experience "some harm" in the event of an unfavorable decision. In re the Adoption of Baby T., 160 N.J. 332, 340 (1999). A financial interest in the outcome ordinarily is sufficient to confer standing. See In re Camden County, 170 N.J. 439, 448 (2002); Essex County Welfare Bd. v. Dep't of Insts. & Agencies, 75 N.J. 232, 236- 237, cert. denied, 437 U.S. 910, 98 S. Ct. 3103, 52 L. Ed. 2d 1141 (1978); Assocs. Commercial Corp. v. Langston, 236 N.J. Super. 236, 242 (App. Div.) certif. denied, 118 N.J. 229 (1989).

Under these tests, plaintiff unquestionably had standing to assert this action against defendant. His financial interest in the matter is indisputable. He purchased the policy and each year paid an annual premium of almost $11,000. Although he is not the payee, the purpose of the policy is to finance the buy-out of Strulowitz's interest in the business. The correspondence from Phillips indicates Strulowitz had the discretion to change the payee. Clearly, he was ...


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