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Janicky v. Point Bay Fuel

October 20, 2009

THOMAS AND KAREN JANICKY, PLAINTIFFS-RESPONDENTS,
v.
POINT BAY FUEL, INC. AND USF INSURANCE COMPANY, DEFENDANTS, AND THE POWDERHORN AGENCY, INC., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3278-04.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 24, 2009

Before Judges Skillman, Fuentes and Simonelli.

This case is before us for the second time.

Defendant Powderhorn Agency is the promoter and administrator of a fuel oil service protection program called a "ProGuard Accidental Release Protection Certificate," which entitles purchasers to reimbursement for the costs of cleaning up oil accidentally released from their fuel oil systems and repairing or replacing those systems. ProGuard Certificates are sold by fuel oil dealers to owners of fuel oil systems.

Defendant Point Bay Fuel, a fuel oil dealer, sold a ProGuard Certificate to plaintiffs, whose home is heated by fuel oil. Point Bay forwarded plaintiffs' payment for the Certificate to Powderhorn Agency, which obtained insurance from defendant USF Insurance Company for the obligations Point Bay assumed under the Certificate.

On August 22, 2003, plaintiffs discovered an accidental fuel oil discharge on their property and subsequently submitted a claim to defendants for the costs of cleanup. However, defendants refused to pay part of plaintiffs' claim.

As a result, plaintiffs filed a six-count complaint against Point Bay, Powderhorn Agency and USF for breach of the contractual obligations undertaken by defendants under the ProGuard Certificate. This complaint also asserted claims for violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, based on defendants' alleged failure to disclose that Point Bay was not authorized to issue insurance, and of statutes governing the sale of insurance.

In response to cross-motions for summary judgment, the trial court issued a letter opinion on July 24, 2006, which concluded that the ProGuard Certificate is a contract of insurance. Based on this ruling, the court entered an order which declared that plaintiffs "are entitled to all of the rights, protections, and privileges afforded to parties to insurance contracts."

Although the trial court's ruling was purely declaratory and did not grant plaintiffs affirmative relief on any of their claims, the court certified the order as a final judgment under Rule 4:42-2, and Powderhorn Agency filed an appeal. We concluded in a published opinion that the order had been improperly certified as final and dismissed the appeal as interlocutory. Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545 (App. Div. 2007).

Thereafter, the parties settled the case. Under the terms of the settlement, five counts of plaintiffs' complaint were dismissed, and a judgment for $8,750 was entered in plaintiffs' favor on the remaining count. The settlement was memorialized by a "Final Order for Judgment," which was entered on September 2, 2008. The order recites, "The undersigned hereby consents to the form and entry of the within Order[,]" followed by the signatures of counsel for both parties.

Despite the settlement of the case, Powderhorn Agency filed a notice of appeal. Although the appeal is nominally taken from the September 2, 2008 consent "Final Order for Judgment[,]" it is directed solely at the 2006 order declaring that the ProGuard Certificate is a contract of insurance, which was the subject ...


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