On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9082-04.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Axelrad and Payne.
This appeal involves the maintainability of a class action under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, where the complaint alleges that the putative class representative suffered an "ascertainable loss" but contains no allegation that other class members suffered any "ascertainable loss" and seeks only declaratory and injunctive relief on their behalf.
Sometime before 1993, plaintiff Anita Laufer subscribed to a group accident and sickness insurance policy as a member of an organization called Women's American ORT. The insurer that originally issued the policy discontinued coverage at the end of 1993, at which time defendant United States Life Insurance Company (U.S. Life) issued a replacement policy providing similar coverage.
The coverage provided under the U.S. Life policy included the cost of care in a "convalescent home." However, the definition of "convalescent home" excluded any facility that is "used mainly for the aged."
Defendant Albert H. Wohlers & Co. was the administrator for the group policy U.S. Life issued to members of Women's American ORT. Beginning in 1995, Wohlers sent a series of notices to policyholders, including Laufer, which indicated that the U.S. Life policy provided "nursing home" benefits. In February and March of 1995, Wohlers sent a notice that stated in part:
Your Catastrophe Major Medical Insurance Plan now includes an increased Nursing Home Benefit!
Recently, you elected to increase your Nursing Home coverage by adding a new, increased NURSING HOME BENEFIT RIDER to your Catastrophe Major Medical Insurance Plan.
By adding this increased coverage to your current Catastrophe Major Medical Plan, your nursing home benefit has been improved! The Nursing Home Benefit Rider increases your coverage . . .
Up to $500 per week in benefits payable for convalescent or custodial care for a covered confinement in a nursing home. (Previously, this benefit provided you with up to $400 per week of coverage.)
Enclosed is the RIDER outlining your improved Nursing Home benefit. . . .
In September 1996 and again in February 1997, Wohlers sent another notice that stated in part:
Currently, your Catastrophe Major Medical Insurance Plan provides up to $1,000,000 in protection. IF YOU ADD THE ENHANCED BENEFIT RIDERS . . . your benefits will be INCREASED -- providing you with up to $2,000,000 in total protection. PLUS . . . your Nursing Home benefit will be increased by $100 Per Week . . . .
In addition, the bills that Wohlers sent to policyholders indicated that the coverage provided under the U.S. Life policy ...