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Connie Carr v. Nj Cure Insurance Co

January 31, 2011


The opinion of the court was delivered by: Hon. Garrett E. Brown, Jr.



BROWN, Chief Judge

This matter comes before the Court upon the motion for summary judgment (Doc. No. 14) of Defendant Citizens United Reciprocal Exchange (CURE). The Court has reviewed the parties' submissions and decided the motions without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, the Court will grant in part and deny in part Defendant's motion.


In opposing Defendant's motion, Plaintiff failed to submit a responsive statement of material facts as required by Local Civil Rule 56.1, and instead filed a brief "Counter-Statement of Material Facts" that only contested portions of three paragraphs appearing in Defendant's 56.1 Statement. Where a plaintiff does not contest statements appearing in a defendant's 56.1 Statement, the Court may deem the uncontested facts appearing in a defendant's 56.1 Statement to be admitted by the plaintiff if they are supported by the record. E.g., Hill v. Algor, 85 F. Supp. 2d 391, 408 (D.N.J. 2000) ("Facts submitted in the statement of material facts which remain uncontested by the opposing party are deemed admitted."). The Court finds that CURE's uncontroverted facts are supported by the record and will deem them as admitted. The Court will address the factual disputes raised in Plaintiff's "Counter-Statement" separately.

The instant dispute arises from a motor vehicle accident involving Plaintiff Connie Carr that occurred on February 7, 2002 in Fort Lauderdale, Florida. At the time of the accident, Plaintiff was driving a 1993 Oldsmobile Cutlass covered by CURE's automobile insurance policy number J00014559 (hereinafter "policy"). Plaintiff had added the '93 Oldsmobile to the policy in January 2002 after she exchanged her 1991 Geo Metro for the car. In February 2002, Plaintiff provided CURE with a copy of the '93 Oldsmobile's registration, which indicated that the vehicle was registered to Plaintiff at 237 N. 1st Street, Surf City, New Jersey (hereinafter "New Jersey residence"). Plaintiff first notified CURE of the accident on June 12, 2002, and Plaintiff thereafter completed a Driver's Report of Automobile Accident and application for personal injury protection (PIP) benefits on or about June 27, 2002. These documents, signed by Plaintiff, identified her residence as "3015 N. Ocean Blvd., Fort Laud., FL" (hereinafter "Florida address"). (See Def.'s 56.1 Statement ¶¶ 5--7, 9; Block Certif. Exs. G, J.) In conjunction with the filing of the accident claim, Plaintiff, in the presence of her attorney, also made a recorded statement with CURE representatives via telephone on June 27, 2002 (hereinafter "June 27 statement"). (Def.'s 56.1 Statement ¶ 10; Block Certif. Ex. E.) During the June 27 statement, Plaintiff provided the following information in response to CURE's questions: (1) that she had been in Florida since November 2001, when she bought a condo there; (2) that she "like[d] to go [back to New Jersey] every three months"; (3) the she stopped living in the New Jersey residence in March 2001; (4) that she (and/or her husband) sold the New Jersey residence in October 2001; (5) that she received the '93 Oldsmobile from a dealer in Florida; (6) that the dealer arranged for the '93 Oldsmobile to be registered in New Jersey, that Plaintiff received the registration papers in Florida, and that Plaintiff submitted registration papers listing the New Jersey residence; (7) and that she has kept the '93 Oldsmobile in a garage in Florida since she has owned it. (See Block Certif. Ex. E at 8--18, 27--28.) Subsequent to Plaintiff's recorded statement, CURE denied coverage for Plaintiff's PIP claim on July 29, 2003, citing Plaintiff's "material misrepresentation[s] and/or omission[s]" concerning the garage location of the '93 Oldsmobile as grounds for retroactively voiding her policy. (Def.'s 56.1 Statement ¶ 23; Block Certif. Ex. I.)

Plaintiff filed suit on July 28, 2009, alleging breach of contract. Plaintiff filed an Amended Complaint on April 16, 2010, adding a claim for declaratory judgment under 28 U.S.C. § 2201. Defendant filed its Answer and Counterclaims on May 6, 2010, seeking a declaration that Plaintiff's material misrepresentations rendered the policy void, and damages under the New Jersey Insurance Fraud Prevention Act (NJIFPA), N.J. Stat. Ann. § 17:33A-1, et seq. On September 24, 2010, CURE moved for summary judgment on all claims, or alternatively for dismissal due to lack of subject matter jurisdiction.

In support of her opposition, Plaintiff submitted an affidavit that disputes the veracity of certain statements she made during the July 27 recorded statement. Among other things, Plaintiff now claims: (1) that she was "heavily medicated" during the June 27 recorded statement, "having recently had an increase in the dosage of anti-seizure medications [to treat symptoms that] result[ed] [from] the accident in February, 2002"; (2) that she never garaged the '93 Oldsmobile in Florida and never resided at the Florida residence; and (3) that she kept the car at a Long Beach Island residence after the accident. (See Carr Aff. ¶¶ 2, 5--6.) Plaintiff further relies on deposition testimony that she gave on August 9, 2010, which also contradicts her June 27 statement. (See Carr Aff. ¶ 2 (adopting "the entirety" of her deposition testimony); Block Certif. Ex. N (Carr Dep.) at 47, 60, 72--97.)


Before the Court may address the merits of CURE's defenses and counterclaims, the Court must first determine the presence of subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) ("[S]ubject-matter delineations must be policed by the courts on their own initiative . . . .") (citation omitted). Plaintiff initiated this action in federal court under the auspices of diversity jurisdiction, asserting diversity of parties and an amount-in-controversy greater than $75,000. See 28 U.S.C. § 1332(a).*fn1 The parties' pleadings reflect that Plaintiff is currently a citizen of New York and that CURE is a New Jersey corporation with a principle place of business in New Jersey. (See Am. Compl. ¶¶ 2--5; Answer ¶ 3.) CURE does not now contest diversity of citizenship, but argues that Plaintiff cannot satisfy the diversity statute's amount-in-controversy requirement.

"A party who invokes the jurisdiction of the federal courts has the burden of demonstrating the court's jurisdiction." Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). In diversity cases, courts "generally accept a party's good faith allegation of the amount in controversy, but where a defendant or the court challenges the plaintiff's allegations regarding the amount in question, the plaintiff who seeks the assistance of the federal courts must produce sufficient evidence to justify its claims." Columbia Gas, 62 F.3d at 541 (citing Burns v. Mass. Mutual Life Ins. Co., 820 F.2d 246, 248 (8th Cir.1987)). In cases seeking declaratory or injunctive relief, "the amount in controversy is determined by 'the value of the object of the litigation.'" Columbia Gas, 62 F.3d at 541 (citing Hunt v. Wash. Apple Adver. Comm'n, 432 U.S. 333, 347 (1977); McNutt, 298 U.S. at 181).

The Supreme Court in St. Paul Mercury Indemnity Co. v. Red Cab Co. set forth the applicable rule for jurisdictional challenges involving the diversity statute's amount-in-controversy requirement. According to Red Cab, [t]he rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed. 303 U.S. 283, 289 (1938) (footnotes omitted). The Third Circuit in Columbia Gas clarified the Red Cab standard as follows:

[f]irst, dismissal is appropriate only if the federal court is certain that the jurisdictional amount cannot be met; the reasonable probability that the amount exceeds [$75,000]*fn2 suffices to vest the court with jurisdiction. Second, the ultimate failure to prove damages over [$75,000] does not belatedly divest the federal court of jurisdiction unless the proofs ...

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