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Kominsky v. C.B. Planning Services Corp.

September 9, 2010


On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-975-07.

Per curiam.


Submitted August 31, 2010

Before Judges LeWinn and J. N. Harris.

This appeal involves claims of consumer fraud*fn1 and professional negligence in the sale of four separate life insurance policies in 1989, 1992, and 1995. Plaintiff alleges that at the time he acquired the policies in question, the selling insurance agencies and their employees neglected to inform him of the availability of waiver of premiums coverage. After suffering a severe cardiac event in 1995 that ultimately led to his retirement some six years later, plaintiff continued to pay the premiums for all four of the life insurance policies. It was not until 2007 that he commenced this action, which seeks remedies for the alleged failures of his insurance advisors to give him the choice of acquiring the appropriate coverage so that he could avoid paying the life insurance premiums upon the declaration of total disability.

In response to defendants' motions for summary judgment based upon plaintiff's alleged failure to comply with the six-year limitation of actions, N.J.S.A. 2A:14-1, the Law Division determined that the motion record alone was a sufficient basis to determine that plaintiff's complaint was indeed filed too late. Without the benefit of oral argument or an evidentiary hearing under the auspices of Lopez v. Swyer, 62 N.J. 267 (1973) and its progeny, the motion judge dismissed plaintiff's complaint with prejudice, and this appeal followed. Because we do not share the Law Division's confidence that the process it used to calculate the equities was compliant with Lopez, we reverse and remand for a necessary evidentiary hearing.


Because summary judgment was granted in favor of defendants, we recite the facts most favorable to plaintiff. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, ___ (2010) (citing Guido v. Duane Morris, LLP, 202 N.J. 79, ___ (2010) (citing Roa v. LAFE, 200 N.J. 555, 562 (2010))).

In 1989, plaintiff obtained a pair of one-million dollar life insurance policies pursuant to the advice of defendants Monte Sperling and Robert Block, both of whom were employed by defendant C.B. Planning Services Corporation. Plaintiff claims that he was not advised that he could configure these life insurance policies with a waiver of premiums option and consequently the policies did not so provide for a waiver of premiums in the event of plaintiff's disability.

In 1992, and again in 1995, plaintiff acquired two additional one-million dollar life insurance policies, this time with the advice of defendants Joseph Straczewski (in 1992) and Norman Feld (in 1995), as employees of defendant Insurance Innovations Agency, Inc. Again, plaintiff asserts that he was not offered the option to obtain a waiver of premiums provision as part of his acquisitions. Consistent with the first two life insurance policies, these latter two also failed to provide for a waiver of their premiums in the event of plaintiff's disability.

In 1995, plaintiff suffered a serious heart attack. As a result, he was unable to carry out the basic functions of his occupation for a short period of time, during which he received temporary disability insurance payments pursuant to a separate policy of disability insurance that he had procured.

Plaintiff was not medically determined to be totally disabled until 2001. At his deposition, plaintiff stated, "I had a massive heart attack in 1995, and my condition deteriorated, and the doctors basically gave me an ultimatum, either quit working or die." Choosing not to die at that time, plaintiff sold his accounting practice and "was out of business [on] June 29, 2001." Nevertheless, he continued to pay all of the required premiums for the four life insurance policies, which later constituted plaintiff's largest personal expense post-retirement.

In the Spring of 2002, plaintiff learned from a friend who was an insurance agent that certain life insurance policies provide for a waiver of premiums in the event of disability. When plaintiff asked his advisor Feld about this specific feature that was absent from the life insurance policy, Feld allegedly told plaintiff that it was not offered because plaintiff's separate disability insurance benefits were "adequate." Three years later, in another conversation with a different insurance agent, plaintiff was supposedly told that he had a cause of action against the insurance advisors who failed to tell plaintiff about the availability of waiver of premiums coverage in connection with all four of his life insurance policies. The instant action was filed two years after that, on June 14, 2007.

As part of the motions for summary judgment, defendants argued that plaintiff knew or should have known about the existence of a claim relating to waiver of premiums as early as 1995. They argued that when plaintiff first became temporarily disabled during that year, and began receiving disability insurance payments, plaintiff was made aware that the premiums for that type of insurance had been waived. Thus, according to defendants, plaintiff should have been alerted to the fact that if he ...

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