On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-502-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Sabatino.
Following a determination by a Law Division judge that an issue of fact existed concerning whether defendant, R. Bruce Hill Agency, Ltd., fulfilled its duty as insurance broker by sending two letters to inform its insureds, Greg and Lois Lawrence, t/a Parkway Tile (Parkway), of the availability of non-owned automobile coverage, plaintiff, Christa Nolan Rucci, entered a stipulation that the letters were sent and a consent judgment dismissing her complaint. Plaintiff then filed her notice of appeal, contending that the judge erred in preventing her expert from testifying concerning an insurance broker's duty and thus usurped her ability to present testimony of the applicable standard of care, which is "beyond the ken of the average juror." We reject plaintiff's contention and affirm the judge's determination and the resulting judgment dismissing plaintiff's complaint.
On September 25, 1998, plaintiff was seriously injured in an automobile accident when her vehicle was struck by a vehicle owned and operated by Felix Mendez. At the time of the accident, Mendez was employed by Parkway. Rucci filed a personal injury suit against Mendez and Parkway. The case was tried and a jury returned a verdict in favor of Rucci, finding Mendez and Parkway seventy-five percent negligent.*fn1 Following a subsequent bench trial, Rucci's injuries were valued at $900,000. Judgment was thereafter entered for $675,000 plus $167,614.05 interest on July 16, 2002. On August 29, 2002, the Lawrences executed an assignment allowing plaintiff to pursue any direct cause of action Parkway had against its insurance broker.
On February 17, 2004, plaintiff filed her complaint, asserting that defendant was negligent for not providing adequate liability coverage that would cover Parkway employees for use of their personal automobiles while on company business. On April 15, 2004, pursuant to N.J.S.A. 2A:53A-27, Timothy Tighe, an insurance agent and broker, submitted an affidavit of merit, asserting that defendant "failed to follow the normal and customary procedures in failing to advise their clients of the uninsured vicarious liability exposure of non-owned automobiles.
. . . [I]t is my opinion that the professional services rendered by [defendant] as insurance broker fell outside of the acceptable professional standard requirement of an insurance broker in failing to advise and offer or provide coverage for non-owned automobiles."
The following facts were revealed in discovery. Greg and Lois Lawrence were the sole proprietors of Parkway. At the time of the accident, the vehicles owned by the Lawrences, although used in their business, were insured by a personal lines policy obtained through the Mystic Insurance Agency, which did have coverage for commercial uses.*fn2 Thus, the Lawrences' personal automobile policy did not provide non-owned automobile coverage for Parkway's vicarious liability arising from the operation by an employee of the employee's vehicle.
Parkway was covered by workers' compensation insurance and a commercial liability (CGL) policy initially acquired through defendant's predecessor, Mirth Insurance Associates, in Tuckerton. Defendant acquired Mirth sometime in the 1990s. When Parkway's CGL policy came up for renewal in 1995, Bruce Hill spoke with Lois on the telephone in an attempt to acquire the Lawrences' automobile coverage. He did not know what auto coverage they had, nor whether it provided non-owned coverage. Hill sought to review the automobile policy, however, Lois declined his invitation to meet with him, explaining that they had two DWIs and were not good automobile risks and would keep their automobile insurance with Mystic. According to Hill, he explained to Lois the need for non-owned automobile coverage. Lois, however, testified at her deposition that she did not remember having a discussion with Hill about auto coverage, although she conceded that her automobile record was not favorable. She claimed that she did not have a conversation with Hill about non-owned coverage.
On February 1, 1996, defendant's employee, Judy Todd, wrote Parkway the following letter addressed to the attention of Greg Lawrence:
Attached please find your renewal for your General Liability policy which is written through Assurance Company of America. There has been a slight increase in premium, which is due to a general increase in rates.
Last year Mr. Hill spoke with Lois regarding your business auto. He was advised, the driver records were not favorable. However, he requested copies of the policy, so he could review same and quote. He also expressed the importance of being sure whether or not you have hired car and non owned ...