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Nece v. Rutgers Casualty Insurance Co.

August 10, 2007

KIM NECE, PLAINTIFF-RESPONDENT,
v.
RUTGERS CASUALTY INSURANCE COMPANY AND INSURANCE ADMINISTRATOR OF AMERICA, INC., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Camden County, L-4414-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 27, 2007

Before Judges Kestin, Weissbard and Payne.

This matter is before us following an earlier unpublished decision on October 26, 2004, under docket number A-4844-02, in which we remanded the matter for a trial on the question of coverage in respect of an automobile insurance policy. The issue is whether the rights of the parties were governed by a notice of cancellation sent by the insurance carrier, defendant, Rutgers Casualty Insurance Company (RCIC), or whether a reinstatement notice governed, i.e., whether, in the circumstances, plaintiff, Kim Nece, remained covered by the terms of the policy.

In the prior proceeding in the trial court, plaintiff's motion for summary judgment on the question of coverage had been granted and the matter was tried on damages, resulting in a judgment for plaintiff including counsel fees. We reversed the grant of summary judgment and remanded the matter for trial on the coverage question and, if appropriate, a retrial on damages.

The background facts of the matter are set forth in detail in our prior opinion. We will not rehearse them here.

On remand, Judge Kassel tried the matter without a jury in a bifurcated fashion. At the end of the third day of trial, he decided the issue of coverage in plaintiff's favor, in an oral opinion concluding with the ultimate findings "that the plaintiff's state of mind was [] that he had a reasonable expectation of coverage on December 8, 1999[,]" and that "because of the sequence of events with the reinstatement notice[,] the . . . insured could have believed that he still had coverage."

Two months later, on September 29, 2005, Judge Kassel retried damages, made his findings on those issues in an oral opinion, and entered judgment the same day. The judgment in favor of plaintiff was rendered in four categories. $27,682.63 was assessed, "broken down as follows:"

1. Recovery of property damage to Plaintiff's motor vehicle in the amount of $21,975[];

2. Reimbursement of storage and towing in the amount of $860[];

3. Reimbursement for miscellaneous prescription costs/co-pays in the amount of $30[];

4. Interest on #s 1, 2 & 3 ($22,865[] to 9/30/05) in the amount of $4,817.63[.]

Taxed costs totaling $421.52 were also awarded. A further award of $47,585.64 for medical bills was made, "to be reduced by the New Jersey Fee Schedule[,] . . . which shall be the maximum payable by defendant[, who] may further negotiate ...


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