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Dibernard v. Estate of Barbato

October 19, 2007

MARGHERITA DIBERNARD, PLAINTIFF,
v.
ESTATE OF MARIE BARBATO, SUSAN STORMS, EXECUTRIX OF THE ESTATE OF MARIE BARBATO, TODD DIBERNARD, A/K/A CESARIO DIBERNARD, AND MARY ELLEN DIBERNARD, DEFENDANTS.
FRANKLIN MUTUAL INSURANCE COMPANY, PLAINTIFF,
v.
MARY ELLEN DIBERNARD, TODD DIBERNARD, A/K/A CESARIO DIBERNARD AND MARGHERITA DIBERNARD, DEFENDANTS, AND MARY ELLEN DIBERNARD, TODD DIBERNARD, A/K/A CESARIO DIBERNARD, DEFENDANTS/THIRD-PARTY PLAINTIFFS,
v.
SUSAN STORMS, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF MARIE BARBATO, THE ESTATE OF MARIE BARBATO AND JOSEPH TOGNO, PRINCIPAL OF TOGNO INSURANCE AGENCY AND TOGNO INSURANCE AGENCY, THIRD-PARTY DEFENDANTS.
MARGHERITA DIBERNARD, PLAINTIFF-APPELLANT,
v.
JOSEPH TOGNO, PRINCIPAL OF TOGNO INSURANCE AGENCY AND TOGNO INSURANCE AGENCY, FRANKLIN MUTUAL INSURANCE COMPANY, SUSAN STORMS, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF MARIE BARBATO, AND THE ESTATE OF MARIE BARBATO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket Nos. L-584-02, L-1235-02 and L-1161-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 19, 2007

Before Judges Wefing, Parker and Lyons.

Plaintiff Margherita DiBernard ("Plaintiff") appeals from a jury verdict finding no cause of action against defendants, Joseph Togno and the Togno Insurance Agency (collectively "TIA"), for failing to advise and secure appropriate liability coverage for Mary Ellen and Todd DiBernard ("the DiBernards"), the owners of a dog that bit plaintiff. Plaintiff is also appealing the grant of defendant Franklin Mutual Insurance Company's ("FMI") application for a directed verdict. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On July 2, 2000, a dog belonging to the DiBernards caused injury to Plaintiff.*fn1 On that date, the DiBernards were living as tenants in a home owned by the estate of Marie Barbato.

Marie Barbato was the mother of Mary Ellen DiBernard, Susan Storms, and Henry Barbato; Todd DiBernard was her son-in-law.

At the time of her death on October 12, 1999, Marie Barbato owned the home in question. She had lived there for more than forty years and since 1977 had used the services of TIA for purchasing homeowners insurance coverage.

Before her sudden death, Marie Barbato's two daughters,*fn2

Mary Ellen and Susan, had agreed that Mary Ellen and her family would sell their home and move in with Marie to provide assistance to their aging mother. Mary Ellen's house was sold around the time of Marie's unexpected death and Mary Ellen and her family were planning on moving into her mother's home in the near future. The siblings agreed that Mary Ellen and her family would proceed with their plan to move into her mother's home. The siblings further agreed that Mary Ellen's family would make arrangements to purchase the home. Mary Ellen also agreed that her family would take care of the bills and upkeep of the property, including electric, phones, oil, and insurance. The DiBernards and their dog, J.R., moved into the home on November 24, 1999.

Susan, the eldest daughter of Marie Barbato, had been named executrix under her mother's will. After her mother's death, Susan contacted Joseph Togno to advise him that Mary Ellen had moved into the home and would be taking care of expenses and that Joseph Togno would probably be hearing from her. As executrix, Susan wrote a check dated December 10, 1999, to partially pay the premium on the homeowners insurance policy covering the home. Susan then assumed that no further action was required on her part with respect to the homeowners insurance.

Soon after moving into the home, Mary Ellen visited TIA. Mary Ellen dropped off a premium check and told Joseph Togno that she and her family had moved into her mother's house. Mary Ellen believed that Joseph Togno understood that she had moved in with her family, including her dog, and that he acknowledged that information.

Togno Insurance Agency is a sole proprietorship with only two employees, Joseph Togno and his son, Philip. Joseph and Philip Togno are insurance agents; they do not sell insurance. Instead, when a person comes to the agency to request insurance, either Joseph or Philip fills out an application and submits it to an insurance company that will take the business and requests that the company insure that risk. The insurance company then decides whether to insure the risk. The insurance company used by Togno and Marie Barbato in this case is FMI.

Allstate Insurance Company provided homeowners insurance and automobile insurance to the DiBernards at their previous residence. After moving to Mary Ellen's mother's home, the DiBernards continued their automobile insurance policy through Allstate, but not their homeowners insurance policy.

According to Mary Ellen's trial testimony, TIA never requested that she fill out any new insurance applications; TIA did not advise her about any coverage options other than continuing the policy currently in place; and TIA never advised her that coverage under the policy was limited to the estate and executrix, and that her family was not entitled to any coverage, despite the fact that they were making premium payments. Instead, Mary Ellen assumed "we had coverage under the Togno Agency" once she moved into the home because, consistent with her agreement with her brother and sister, she continued to make premium payments for the homeowners policy in place covering the home. Having decided to maintain the insurance through the agent utilized by her parents for the home since 1977, Mary Ellen did not believe it was necessary to return to her prior Allstate agent or any other agency to seek additional coverage or other advice and did not do so.

On December 8, 1999, TIA transmitted a "speed memo" to FMI advising the carrier of Marie Barbato's death and of the DiBernards' residence in the home. According to Joseph Togno, the purpose of the speed memo was to seek FMI's guidance about what changes should be made to the policy to ensure proper coverage. At least one purpose of the inquiry was to make sure that Mary Ellen and her family were covered as requested. The reply from FMI indicated the policy should be rewritten as a combination dwelling policy. At trial, Joseph Togno testified that, in hindsight, the proper policy to provide ...


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