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NN&R, INC. v. ONE BEACON INSURANCE GROUP

June 28, 2005.

NN&R, INC., Plaintiff,
v.
ONE BEACON INSURANCE GROUP, and its successor, derivative or acquiring entities and TRIESTER, ROSSMAN & ASSOCIATES, INC., Defendants.



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

Plaintiff, a New Jersey corporation, has brought this action against Defendants One Beacon Insurance Group ("One Beacon") and Triester, Rossman & Associates, Inc. ("Triester"), alleging claims for breach of contract, bad faith dealing and common law fraud, as well as claims under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, and the New Jersey Unfair Claim Settlement Practices Act, N.J.S.A. 17B:30-13.1. (Am. Compl.) Defendant Triester has moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P.*fn1 [Docket Item 28.]

  I. BACKGROUND

  This action arises from the structural collapse of a building at 326 Market Street, Camden New Jersey. Plaintiff, the alleged owner and operator of a small restaurant and apartment units located at that address, alleges that the building was severely damaged in February 2000 when the contiguous property was legally demolished. Prior to that event, CGU Insurance, One Beacon's predecessor, issued insurance policies through Triester, Rossman & Associates, Inc., providing property and liability coverage to Plaintiff. A dispute involving one of those policies, Number CPLP 53356 (the "Policy"), has given rise to this action.

  Plaintiff, together with William Rosenberg, filed its original complaint against Defendant One Beacon in Superior Court, Camden County, New Jersey, alleging claims of breach of contract and common law fraud, as well as claims under the Consumer Fraud Act. (Compl.) The case was removed to this Court, [Docket Item 1,] and Defendants subsequently moved for dismissal and a more particularized pleading of the fraud claims asserted by NN&R.

  By Order dated May 7, 2004, this Court dismissed all claims asserted by William Rosenberg individually, and granted One Beacon's motion for a more particularized pleading, requiring Plaintiff to file and serve an Amended Complaint which clarified the basis for:
(1) its common law fraud claim;
(2) its claim of violations of the New Jersey Consumer Fraud Act, providing special emphasis in the amendment on allegations involving pre-insurance events and insurance adjustment practices; and
(3) its claim regarding a breach of the duty of good faith and fair dealing, providing special emphasis in the amendment on allegations involving a delay in payments under the policy.
[Docket Item 16.] Plaintiff then filed the Amended Complaint which is the subject of the instant motion.

  II. STANDARD OF REVIEW

  A. Rule 12(c) Motion For Judgment on the Pleadings

  Under Rule 12(c) of the Federal Rules of Civil Procedure, "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." The same standard for determining a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) is used for motions under Rule 12(c). In re K-Dur Antitrust Litigation, 338 F.Supp.2d 517, 528 (D.N.J. 2004). Motions under Rule 12(b)(6) must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept any and all reasonable inferences derived from those facts. Unger v. Nat'l Residents Corp. v. Exxon Co., U.S.A., 761 F.Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Sav. Bank, 748 F.Supp. 254, 260 (D.N.J. 1990). Further, the court must view all allegations in the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

  It is not necessary for the plaintiff to plead evidence, and it is generally not necessary to plead the facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977); In re Midlantic Corp. Shareholder Litigation, 758 F.Supp. 226, 230 (D.N.J. 1990). The question before the court is not whether plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In other words, in deciding a motion for a judgment on the pleadings, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the nonmovant, plaintiff's allegations state a legal claim. Markowitz, 906 F.2d at 103.

  In an action for fraud, such as this one, plaintiffs are subject to heightened pleading requirements. Specifically, "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). To be sure, Rule 9(b) does not require that plaintiffs claiming fraud plead the date, place or time of the fraud so long as they use "alternative means of injecting precision and some measure of substantiation into their allegations of fraud." Mardini, 92 F.Supp.2d at 385 (quoting Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 658 (3d Cir. 1998)). However, in order to satisfy the "required level of specificity articulated in Rule 9(b)," a plaintiff may not rely merely on "conclusory statements." Mardini, 92 F.Supp.2d at 385. Instead, the plaintiff must indicate at the very least who made the material representation giving rise to the claim and what specific representations were made. Id. III. DISCUSSION

  A. Count I — Common Law Fraud and Breach of Contract

  1. Common Law Fraud

  Plaintiff claims in Count I that Defendant Triester fraudulently misrepresented to Plaintiff that incremental increases in premiums under the Policy would be accompanied by increases in coverage when, in fact, that was not the case. "In order to articulate a cause of action for fraud, a plaintiff must show that the defendant made `a material representation of a presently existing or past fact, . . . with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment.'" Mardini v. Viking ...


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