July 29, 2009
COMMISSIONER NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE, PETITIONER-RESPONDENT,
STEVEN B. BUDGE, RESPONDENT-APPELLANT.
On appeal from the New Jersey Department of Banking and Insurance, Agency Ref. No. E04-131.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued May 27, 2009
Before Judges Carchman, Sabatino and Simonelli.
Steven Budge, pro se, appeals a final agency decision of the Commissioner of the Department of Banking and Insurance ("the Department") revoking Budge's license as a public adjuster and imposing various fines and penalties. We affirm.
The Commissioner's action against Budge stemmed from allegations that he violated the New Jersey Insurance Fraud Protection Act ("the IFPA"), N.J.S.A. 17:33A-1 to -30, in connection with insurance claims submitted for damage to the roof of a home owned by Budge's aunt and uncle, Frank and Rose Land. The Lands hired Budge to represent their interests in presenting their insurance claims for the roof damage to their homeowners' carrier, Liberty Mutual Insurance Company ("Liberty Mutual").
We need not elaborate upon the underlying facts, as they already have been set forth in the related litigation with Liberty Mutual, in an opinion of the Supreme Court, see Liberty Mut. Ins. Co. v. Land, 186 N.J. 163 (2006), and in two opinions of this court, see Liberty Mut. Fire Ins. Co. v. Land, Docket No. A-5337/5690-02 (February 23, 2005) and Liberty Mut. Fire Ins. Co. v. Land, Docket No. A-5703-06T2 (March 27, 2009). It will suffice to state the following details about the insurance claims and the related proceedings involving Liberty Mutual.
In December 2000, a neighbor's tree fell on the roof of the Lands' cabin in Highland Lake. The Lands, through Budge, presented claims for property damage to Liberty Mutual totaling $69,338. In investigating the claims, Liberty Mutual discovered that Budge, Mr. Land, and another man had apparently gone on the roof after the tree fell and had attempted to increase the physical damage to the cabin. The neighbor who owned the tree, Joseph Rizzo, observed the men slamming a portion of the fallen tree repeatedly on the roof, causing additional damage to the structure. They also shattered a skylight and bent a television antennae. Rizzo videotaped these activities and supplied a copy of the videotape to Liberty Mutual.
Concluding that the claims of loss had been fraudulently inflated, Liberty Mutual denied coverage and withheld the payment of benefits. It then brought an action against Budge and the Lands in the Law Division, alleging breach of contract and numerous violations of the IFPA. The matter was first tried before a jury in the fall of 2002. That trial resulted in a jury verdict in Liberty Mutual's favor against all three defendants. In the ensuing appeal, we set aside the initial judgment because of various trial errors, including the jury charge on the burden of proof, and remanded the case for a new trial.
Thereafter, the Supreme Court reversed our opinion as to the burden-of-proof issue, and remanded Liberty Mutual's action to the Law Division for the new trial that we had previously directed on other grounds. 186 N.J. at 180-81.
The Liberty Mutual case was tried a second time before a jury in November and December 2006. The second jury also returned a verdict in Liberty Mutual's favor, finding that Budge and the Lands each violated the IFPA. The trial court issued a corresponding final judgment awarding the insurer the sum of $175,302.88, inclusive of attorneys fees, investigative expenses, and treble damages. We affirmed that second judgment against Budge*fn1 in our opinion dated March 27, 2009.
As another consequence of these occurrences, Budge was indicted by a grand jury in February 2003, (Sussex County Indictment No. 03-02-00033) and charged with theft by deception, N.J.S.A. 2C:20-4. On June 6, 2006, Budge was admitted into the Pre-Trial Intervention ("PTI") program under Rule 3:28(c)(2). Budge fulfilled the conditions of PTI and was released from supervision on September 4, 2007. Consequently, the criminal indictment against him was dismissed.
The Department's administrative case against Budge has the following pertinent chronology. On October 19, 2004, the Commissioner issued an Order to Show Cause, No. E04-131, against Budge, alleging that Budge knowingly misrepresented, concealed or failed to disclose any material fact concerning a property damage loss that occurred on December 12, 2000, and that he had intentionally caused or contributed to that loss, in violation of N.J.S.A. 17:22B-14(a)(1), (3), (4), and (5), and N.J.A.C. 11:1-37.14(a)(1)-(5), (13), and (16) (count one). The administrative complaint also alleged that Budge had prepared and submitted a fraudulent insurance claim estimate, knowing that he had intentionally inflicted greater damage to the Lands' property than that which actually existed (count two). Finally, the complaint alleged that Budge had failed to notify the Department about the indictment filed against him, in violation of his reporting obligations under N.J.A.C. 11:1-37.14(a)(10) (count three).
In response, Budge submitted a letter, dated October 28, 2004, denying the allegations set forth in the Order to Show Cause. The Department consequently transmitted the matter to the Office of Administrative Law ("OAL") as a contested case on November 22, 2004. The case was assigned to an Administrative Law Judge, James Faison ("the ALJ").
Budge filed a motion to dismiss the administrative action and various other applications. The parties were to appear before ALJ Faison on May 27, 2005, at which time it was anticipated that the ALJ would issue an order containing his dispositions of Budge's motions, but Budge failed to appear on that date. Thereafter, on June 16, 2005, the ALJ issued Case Management Order #1, which addressed a variety of discovery matters and which also indicated that the pending dispositive motions would be deferred until a later time.*fn2
Subsequently, the ALJ filed Case Management Order #2 on September 15, 2005, "to address certain discovery deficiencies on the part of Respondent [Budge]." The order compelled Budge to furnish certain items within specified time frames, and also scheduled a pre-hearing status conference for January 23, 2006. A computer-generated notice of the conference was transmitted to Budge. Budge failed to appear on January 23, 2006, and the ALJ rescheduled the status conference for February 16, 2006. Budge failed to appear on that rescheduled date as well. As a result, the ALJ returned the case to the Department on February 24, 2006, pursuant to N.J.A.C. 1:1-14.4(a), for "appropriate disposition" in light of Budge's failures to appear.
Budge then wrote a letter to the Department on or about March 2, 2006, stating that he "was not at the [February 16, 2006] hearing . . . due to a court appearance on the same matter in criminal court." Budge added that he was "unaware of the hearing" and claimed that he never received written notice to appear. The address listed on the top of Budge's letter was the same address listed on the computer-generated notice for the February 16, 2006 status conference.
The Deputy Attorney General prosecuting the administrative action responded with a letter to the Commissioner dated June 15, 2006, requesting that the "Commissioner issue an Order remanding this matter to the Office of Administrative Law . . . for the imposition of sanctions and further proceedings." Consequently, the Commissioner issued an order on June 23, 2006, remanding the matter to the OAL and directing that the ALJ "assess the merits of [Budge's] explanation for his non-appearance and to order any action he deems appropriate."
The ALJ scheduled oral argument in the matter for November 15, 2006, and a computer-generated notice of that proceeding was issued to Budge on July 26, 2006. Evidently, Budge failed to appear in the OAL on November 15, causing the ALJ to again issue a notice on November 22, 2006, returning the case to the Commissioner.
As a further response, Budge sent a letter to the Department, the ALJ, and the Deputy Attorney General dated December 10, 2006, with the subject heading "Notice of Reason for Failure to Appear." The letter stated, in relevant part, that "[t]he reason that I was not at the hearing on the adjourned date [was] due to a court appearance on the same matter in civil court date of [sic] February 16, 2006 because I was unaware of the hearing [and] I never received written NOTICE to appear, or I would have been the[re]." The letter does not explicitly address the OAL proceeding scheduled for November 15, 2006.*fn3
The Deputy Attorney General sent a letter to the Commissioner on December 22, 2006, requesting that a final decision be rendered and "that the allegations against [Budge] in the Order to Show Cause be deemed admitted."
After various other correspondence was exchanged, the Commissioner sent a letter to the parties on February 9, 2007, requesting that they brief him regarding the application of the so-called "Kimmelman" factors concerning the calculation of an appropriate administrative penalty. See Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123 (1987). Budge addressed those penalty issues and other subjects relating to the merits of the case in an ensuing responsive letter to the Commissioner, to which the Deputy General replied in his own letter submission.
On June 28, 2007, the Commissioner issued his final decision and order in this case. The Commissioner found that Budge had violated the Public Adjuster's Licensing Act, N.J.S.A. 17:22B-1 to -20, based upon the allegations that "[w]hile licensed and engaged in the business of a public adjuster in this State," Budge "filed a deceptive and misleading property damage loss claim with an insurer on behalf of an insured couple and [also] failed to notify the Commissioner within 30 days of having been indicted on a charge of [t]heft by [d]eception."
The Commissioner's final decision alluded to Budge's repeated failures to appear at several of the dates scheduled for proceedings in the OAL. It also noted the second jury's adverse verdict against Budge in the remanded trial of the Liberty Mutual case, noting that the verdict was "based upon the same incidents and facts alleged in OTSC E04-131 and at issue in this administrative action." Applying principles of collateral estoppel, the Commissioner adopted the jury's determination in the civil action that Budge "knowingly misrepresented, concealed, or failed to disclose material facts regarding a property damage loss that occurred on December 12, 2000 and that Budge knew he had intentionally inflicted greater damage to the property than that which actually existed." Consequently, the Commissioner adopted the complaint's averments that Budge committed violations of the insurance laws, contrary to N.J.S.A. 17:22B-14(a)(1); committed a fraudulent or dishonest act, contrary to N.J.S.A. 17:22B-14(a)(3); and demonstrated incompetency, lack of integrity, bad faith, dishonesty and untrustworthiness to act as an adjuster, contrary to N.J.S.A. 17:22B-14(a)(4). Without reference to collateral estoppel, the Commissioner also found that Budge's repeated failures to appear in the OAL warranted treating as unopposed the third count of the complaint------alleging Budge's failure to report his criminal indictment.
By way of sanctions, the Commissioner revoked Budge's license, noting the policies requiring public confidence in insurance professionals and the position of trust fulfilled by public adjusters. The Commissioner further ordered that Budge pay a fine of $1000 for his failure to alert the Department that he had been indicted in relation to this matter, N.J.A.C. 11:1-37.14(a), and to pay a fine of $7500 for his violation of "any provision of the insurance law . . . in the course of his . . . dealings as an adjuster," contrary to N.J.S.A. 17:22B-14(a)(1); for committing "a fraudulent or dishonest act", in violation of N.J.S.A. 17:22B-14(a)(3); for demonstrating his "incompetency, lack of integrity, bad faith, dishonesty, financial irresponsibility or untrustworthiness to act as an adjuster", in violation of N.J.S.A. 17:22B-14(a)(4); and Budge's acts that "aided, abetted or assisted another person in violating any insurance law", in violation of N.J.S.A. 17:22B-14(a)(5). These acts were also found in violation of N.J.A.C. 11:1-37.14(a)(1)-(5), (13), and (16).
Budge filed a motion for reconsideration, which the Commissioner denied. Budge then appealed the Commissioner's final decision. A stay pending appeal was denied.
In his pro se brief on appeal, Budge raises the following points:
THE ORDER OF COMMISSIONER TO PASS JUDGMENT ON THE MATTER AT BAR BASED ON THE LIBERTY MUTUAL v. APPELLANT/BUDGE IS ERRONEOUS APPELLANT HAS APPEALED THE CASE AND IS NOT FINAL. THIS ORDER IS PREMATURE.
THE ORDER OF COMMISSIONER IS ERRONEOUS AT BAR IS THE DIRECT CAUSE OF THE DOI FAILING TO INVESTIGATE APPELLANT BUDGE FILED A FORMAL COMPLAINT WITH THE RESPONDENT (THE DEPARTMENT OF INSURANCE DOI/COMMISSIONER) AND REQUESTED SEVERAL TIMES FOR SAME TO INVESTIGATE THIS CLAIM BUT TO NO AVAIL.
INDICTMENT WAS DISMISSED AND RESPONDENT/COMMISSIONER DEPARTMENT OF INSURANCE CALLED APPELLANT IN AND IT WAS CLEARLY SPELLED OUT TO RESPONDENTS REPRESENTATIVES THAT THE INDICTMENT WAS DISMISSED AND APPELLANT WAS NEVER INFORMED OF THE INDICTMENT EXCEPT ON THE FRONT PAGE OF SEVERAL NEWSPAPERS APPELLANT EXPLAINED THAT THE INDICTMENT WAS DISMISSED BUT WAS UNDER APPEAL
THE FINE IN THE ORDER OF THE COMMISSIONER IS EXCESSIVE AND REMOVAL OF THE INSURANCE PUBLIC ADJUSTERS LICENSE GOES AGAINST STATE STATUTE. OF FIRST TIME OFFENDERS WHICH APPELLANT IS NOT.
ON SEVERAL OCCASIONS APPELLANT ASKED FOR A MORE DEFINITIVE STATEMENT THE ORDER OF THE COMMISSIONER
A. THE PLAINTI[FF] WAS NOT AFFORDED A TRIAL OR PROPER ORAL DEPOSITIONS, DISCOVERY OR PROPER INTERROGATORIES. THEREFORE THE FINAL DECISION AND ORDER PREMATURE
B. THE COMMISSIONER HAS OFFERED NO EVIDENCE SUFFICIENT AN ORDER AS INDICATED IN ORDER ONLY AMBIGUOUS STATEMENTS THAT CAN'T BE DEFENDED
C. THE COMMISSIONER HAS NOT RAISED ONE GENUINE ISSUE OF MATERIAL FACT AS TO THE FRAUD THAT THE APPELLANT HAD PERPETRATED OR MISCONDUCT UNBECOMING OF A INSURANCE PUBLIC ADJUSTER
IN REGARDS TO FAILURE TO APPEAR AT PROCEEDINGS THIS WAS BROUGHT OUT IN MY LETTERS THAT I WAS UNAWARE OF THE DATES AND NOW BEING DENIED DUE PROCESS BY BEING COLLATERALLY ESTOPPED FROM DENYING THE ALLEGATIONS SET FORTH IN THE (AMBIGUOUS) COUNTS 1 AND 2, (WHERE IN MY DETAILED ESTIMATE IS THERE ANY FRAUD WHAT PAGE, ROOM AND WHAT NUMBER) THIS QUESTION HAS BEEN REPEATEDLY ASKED AND NEVER ANSWERED BECAUSE THERE IS NO FRAUD
COMMISSIONERS ORDER IN THIS INSTANCE WOULD BE UNCONSTITUTIONAL
A. THE ORDER WOULD DENY THE PLAINTI[FF] THE CONSTITUTIONAL RIGHT OF CIVIL LITIGANTS TO PROCESS OF LAW
In his reply brief, again filed pro se, Budge asserts the following additional points:
REPLY POINT I.
THE FINAL DECISION AND ORDER OF COMMISSIONER VIOLATES DUE PROCESS AND THE LAW OF COMMON SENSE AND IS COMMISSIONER IS INTITALED [SIC] TO NO FINE AT ALL
REPLY POINT II.
THE COMMISSIONER IMPROPERLY RELIED ON THE DOCTRINE OF COLLATERAL ESTOPPEL AS TO COUNTS 1 AND 2 AND THE FINAL DECISION SHOULD BE REVERSED
REPLY POINT III.
THE FINAL DECISION SHOULD BE AFFIRMED AS TO ALL COUNTS AS TO ALL COUNTS IN THE ORDER TO SHOW CAUSE FOR FAILURE TO APPEAR A NUMEROUS SCHEDULED PROCEDINGS TO DEFEND IS ABSURD!!. THE FACT THAT BUDGE ATTENDED NUMEROUS SCHEDULED PROCEDINGS AND VEHEMENTLY DENIED ANY WRONG DOING SEVERAL TIMES AND THE ALLEGATIONS FILED AGAINST BUDGE WERE SO AMBIGUOUS SHOULD BE DISMISSED ON THOSE BASES ALONE.
REPLY POINT IV.
THE DOI CLAIMS FAILURE TO NOTIFY THE DEPARTMENT THAT HE HAD BEEN INDICTED FOR ATTEMPTED THEFT BY DECEPTION, IS TOTALLY ERRONIOUS, BUDGE WAS NOTIFIED BY THE DOI BEFORE HE WAS EVER NOTIFIED ABOUT THE INDICTMENT AND IS CERT[A]INLY DISPUTED.
REPLY POINT V.
THE DEPARTMENT ALLEGES THEY AFFORDED BUDGE THE OPPORTUNITY FOR A HEARING IN THE OAL, BUT BUDGE DENIES THESE ALLEGATIONS BESCAUSE BUDGE HAS BEEN THROUGH TWO JURY TRIALS TWO APPELLATE HEARINGS AND THE SUPREME COURT ON THE BURDEN OF PROOF, AND NUMEROUS TIMES IN FRONT OF THE OAL, HE CERT[A]INLY WOULD NOT MISS A HEARING OF THE OAL DELIBER[ATE]LY.
REPLY POINT VI.
THE DEPARTMENT FAILURE TO DO THE JOB IS [SIC] WAS SET UP TO DO FROM CONCEPTION AND WHERE IS THERE INVESTIGATION FROM A CLAIM OF DECEMBER OF 2000 BUT IN FACT THES [SIC] YEARS OF FALSE ALLEGATIONS WAS VERY MUCH IN PART OF THE DEPARTMENT NOT RESPONDING TO A UNDISPUTED V[E]RIFIED COMPLAINT
REPLY POINT VII.
THE DEPARTMENT CLAIMS IT MET ITS BURDEN OF PROOF WHEN IT RELIES MOSTLY ON A CASE THAT IS UNDER APPEAL IN THE APPELLATE COURT AT THIS VERY MOMENT, BUDGE IS AWARE OF THE BURDEN OF PROOF, JUST DOESN'T AGREE WITH THE DOUBLE STANDARDS AND BELI[E]VES THIS AND OTHER ASPECTS OF THE IFPA AMBIGIOUS AND ARE UNCONSTITUTIONAL
REPLY POINT VIII.
THE PENALTIES THE DEPARTMENT ARE TRYING TO IMPOSE, ARE ELEMENTRAY [SIC] INCORRECT.
In assessing these contentions on appeal, we bear in mind the limited standard of review that governs appeals of final decisions by state administrative agencies. "An administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).
As the Supreme Court observed in Herrmann, "[t]hree channels of inquiry inform the appellate review function." Id. at 28. These are:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
"When an agency's decision meets [these] criteria, then a court owes substantial deference to the agency's expertise and superior knowledge of a particular field." Ibid.
Applying these well-settled review standards here, we affirm the Commissioner's final agency decision, essentially for the cogent reasons set forth within the decision of June 28, 2007. We have fully considered all of the points raised by appellant in his brief and reply brief, as amplified in oral argument, and conclude that they lack sufficient merit to be discussed, seriatim, in this opinion. R. 2:11-3(e)(1)(D). Nevertheless, we will comment briefly on two of appellant's main arguments: (1) the propriety of the Commissioner's reliance on principles of collateral estoppel; and (2) his criticism that the Department's administrative action grew out of the investigation into the Lands's roof damage claims initiated by Liberty Mutual.
The application of collateral estoppel to the present matter is manifestly appropriate. "[P]rinciples such as res judicata and collateral estoppel . . . apply not only to parties in courts of law, but also in administrative tribunals and agency hearings, particularly as to findings of fact." Hackensack v. Winner, 162 N.J. Super. 1, 24 (App. Div. 1978), modified on other grounds, 82 N.J. 1 (1980). (citations omitted). Such an application "prevent[s] wasteful and unnecessary fragmentation of causes of action and duplication of proceedings." Id. at 25.
For collateral estoppel to become applicable, the party asserting the bar must demonstrate that:
(1) the particular issue to be precluded is identical to the issue decided in the previous proceeding; (2) the issue was actually litigated in the prior action, i.e., there was a full and fair opportunity to litigate the issue in the prior action; (3) a final judgment on the merits was issued in the prior proceeding; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom preclusion is asserted was a party to or in privity with a party to the earlier proceeding.
[Monek v. Borough of S. River, 354 N.J. Super. 442, 454 (App. Div. 2002) (citing In re Dawson, 136 N.J. 1, 20-21 (1994)).]
In terms of whether a judgment is final, "collateral estoppel applies whenever an action is 'sufficiently firm to be accorded conclusive effect.'" Hills Dev. Co. v. Twp. of Bernards, 103 N.J. 1, 59 (1986) (quoting Restatement (Second) of Judgments § 13). See also State v. Gibson, 68 N.J. 499, 522 (1975) (describing the decision of a trial court as a "final judgment"); R. 2:2-3. "[T]he wisest course is to regard the prior decision of the issue as final for the purposes of issue preclusion without awaiting the end judgment." Restatement (Second) of Judgments, supra, § 13 comment g at 136. "That the parties were fully heard, that the court supported its decision with a reasoned opinion, that the decision was subject to appeal or was in fact reviewed on appeal, are factors supporting the conclusion that the decision is final for the purpose of preclusion." Ibid.
"[A] judgment is 'final' even if pending on appeal." Gregory Mktg. Corp. v. Wakefern Food Corp., 207 N.J. Super. 607, 621 (Law Div. 1985) (citations omitted). Here, the judgment resulting from the jury's verdict in the second Liberty Mutual trial has now been affirmed on appeal. It is entirely appropriate to treat that judgment as final, for purposes of collateral estoppel analysis.*fn4
In his final decision and order, the Commissioner correctly applied the various elements of collateral estoppel:
Budge was a party to the Superior Court fraud action. The facts put forth for preclusion by the Petitioner in this administrative matter were clearly essential to the determination of Budge's liability under the Fraud Act in the Superior Court case. The issue of whether Budge engaged in the conduct alleged in Counts 1 and 2 of the [Order to Show Cause] is identical to the issue of whether Budge engaged in conduct that violated the provisions of the Fraud Act as set forth above. Budge had ample opportunity to fully and fairly litigate that issue in the civil insurance fraud action and the issue was actually litigated in that matter, resulting in the issuance of a judgment on the merits against Budge.
Based upon the forgoing, I have concluded that the Respondent [Budge] is collaterally estopped from denying that he knowingly misrepresented, concealed or failed to disclose material facts to Liberty Mutual with respect to the Lands' claim and intentionally caused or contributed to the loss that formed the purported basis for that claim.
We agree with this analysis.
We also perceive no equitable or legal reason to withhold the application of collateral estoppel here. The baseline facts of fraudulent conduct have been determined by a jury in a manner adverse to Budge's contentions. The jurors had the first-hand opportunity to consider the credibility of the witnesses, including Budge himself. The jury and the trial court evidently did not accept Budge's contention, which he reiterates here on appeal, that his activities on the Lands' roof had nothing to do with the extent of the Lands' claimed roof damage, or the monetary amounts sought in the Lands' insurance claims. The factual determinations of fraud need not be relitigated. In sum, the Commissioner's application of collateral estoppel was legally sound and appropriate.
As a second point of discussion, we reject Budge's claim that the Department improperly relied upon the fraud investigation performed by Liberty Mutual in this case.*fn5 Nothing in the IFPA or the Public Adjusters Act statutorily prohibits the Department from taking administrative action against a licensee based upon a referral from an insurance company. Indeed, the IPFA plainly contemplates that insurers and the Department will be endeavoring jointly, along with law enforcement agencies, to combat insurance fraud.*fn6 Such joint anti-fraud efforts conserve investigatory resources, and promote the overall deterrence of fraudulent conduct.
We discern nothing irregular or improper about the Department's decision to pursue administrative sanctions against Budge after learning of the facts and circumstances uncovered by Liberty Mutual. The insurer's fraud investigation was eventually vindicated by the verdict of the jurors who heard the facts.
The Commissioner's final agency decision, including the justifiable and reasonable sanctions it imposes, is therefore affirmed in all respects.