On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-6047-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Baxter.
This is an appeal from the grant of summary judgment in favor of defendant New Jersey Manufacturers Insurance Company (NJM) and from the denial of plaintiff Alex Kneller's motion for reconsideration. Plaintiff sought damages and reformation of an insurance contract he purchased from NJM, alleging that NJM had violated the Consumer Fraud Act (CFA), committed common law fraud, and breached its duty of good faith. Plaintiff claimed that NJM misrepresented its insurance policy and subsequently caused damages to him by failing to remove a designation on his commercial automobile policy declaration page that read "limitation on lawsuit option."*fn1
Both parties filed motions for summary judgment, and on July 22, 2005, subsequent to oral argument, Judge Pullen granted summary judgment to NJM, and denied summary judgment to plaintiff.
On appeal, plaintiff claims that the trial court erred by:
(1) granting summary judgment to NJM, thereby wrongly dismissing plaintiff's claims of bad faith, common law fraud and his claims under the Consumer Fraud Act; (2) denying his claim for reformation of his insurance policy with NJM; and (3) denying his motion for reconsideration.
We agree with the trial court's conclusion that: (1) defendant NJM did not make any misrepresentation that was material to plaintiff's purchase or renewal of the commercial auto insurance policies he purchased between 1994 and 2002; (2) NJM's use of the phrase "limitation on lawsuit option" on each policy's declarations page played no part in any sale or marketing of the insurance product, and therefore did not violate any of the provisions of the CFA; (3) plaintiff suffered no "ascertainable loss" as required by CFA; and (4) plaintiff did not rely to his detriment on the subject language, thereby vitiating any claims of common law fraud.
In reviewing the grant of a summary judgment motion, this court applies the same standard that governs the trial court, and decides first whether there was a genuine issue of fact. If there was not, we then decide whether the lower court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if the "pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to judgment or order as a matter of law." R. 4:46-2.
Here, the facts are undisputed and are gleaned from the documents submitted by the parties in support of, and in opposition to, the motion for summary judgment. Plaintiff, owner of Al's Gutter Gleaning, purchased a commercial automobile policy from NJM each year from 1994 to 2002, insuring the truck that he used in his business. Each year, the declarations page on the policy included language that appeared as either "lawsuit threshold" or "limitation on lawsuit option." Plaintiff cancelled his final policy on July 10, 2003.
Both parties agree that the language on the policy indicating a "limitation on lawsuit" had no legal effect on plaintiff's right to sue for personal injuries if he were to be injured while driving the truck. N.J.S.A. 39:6A-8. This is so because any limitation on the right to sue applies only to private passenger automobiles, where personal injury protection (PIP) is available, and not to commercial vehicles such as plaintiff's truck. N.J.S.A. 39:6A-2a. Because plaintiff's truck did not meet that definition, he did not have the option to buyout of the lawsuit threshold. As a result, the language on plaintiff's policy regarding a lawsuit limitation had no legal effect. Rather, any lawsuit limitation on his vehicle would be governed by any personal auto policy he may have had, or by any policy a "resident relative" may have had.
NJM asserted that all of its policies, business or personal, included an indication of whether a tort threshold applies or not. As noted earlier, however, neither plaintiff, nor any other person having the same language on a "business" policy would be bound by the language. NJM explained that it included the subject language on its policies only to indicate that the insured had not "opted-out" of the limitation. Indeed, no commercial policy insured would be permitted to "opt-out" and purchase PIP coverage.
On February 19, 2002, plaintiff was injured when a vehicle operated by Narayon Hosj Ganesan struck his vehicle. At the time, plaintiff was driving the truck insured by NJM. Ganesan was insured by Chubb Group of Insurance Companies (Chubb). Shortly after that accident, plaintiff sent Chubb copies of his MRI reports and a copy of the policy issued by NJM. ...