On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. DC-2450-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2011
Before Judges Sabatino and Fasciale.
Plaintiff Robert Carbo appeals from a judgment of no cause of action in favor of defendant Allstate Insurance Company (Allstate) and a subsequent order awarding Allstate attorney's fees and expenses. We affirm.
In August 2009, plaintiff filed an insurance claim with Allstate asserting that he had been "carjacked" in Philadelphia on August 8, 2009. Plaintiff alleged that after returning to his car from using the bathroom at a nearby restaurant, an unknown person ordered him from his vehicle and then drove off with it. Plaintiff contended that he called 9-1-1, flagged down passing police officers, and eventually found the car five miles away in damaged condition.
Allstate investigated the claim, deposed plaintiff, determined that the claim was fraudulent, and declined to pay. In a letter dated September 25, 2009, Allstate explained:
We are providing you with this disclaimer because during the course of the investigation, and through statements made to Allstate . . . and its attorney, it has been determined that material misrepresentations and/or concealments were made, and the evidence supports the fact your vehicle was not stolen as reported.
You have acknowledged completing the Affidavit of Vehicle Theft that you submitted to Allstate. You provided contradictory testimony during your Examination Under Oath regarding the circumstances surrounding the loss of your 2006 Cadillac.
On February 16, 2010, plaintiff filed a complaint against Allstate in the Special Civil Part demanding $15,000 in damages. Allstate answered and counterclaimed that plaintiff had violated the New Jersey Fraud Prevention Act (the Act), N.J.S.A. 17:33A-1 to -34, and committed common law fraud. Allstate sought treble and compensatory damages, investigation expenses, costs of suit, attorneys' fees, and a declaration that plaintiff's policy was void ab initio.
Judge Evan H. C. Crook conducted a three-day jury trial on June 21, 22, and 23, 2010. Plaintiff represented himself and testified on his own behalf. He called two fact witnesses, a work associate and the Allstate claims investigator who handled plaintiff's claim. Allstate called no witnesses.
Plaintiff produced no police records confirming that he was carjacked or that he filed a stolen vehicle report. In his testimony, plaintiff could not identify the restaurant where he stopped to use the bathroom. He testified that he used his cell phone to call 9-1-1 and produced his cell phone records; however, the records did not reflect any 9-1-1 calls at the time of the alleged theft.*fn1
During cross-examination, plaintiff admitted that he had provided false information to Allstate during the claim investigation. The following exchange occurred:
DEFENDANT'S ATTORNEY: All right. Would you agree with me, Mr. Carbo, that you have an obligation to cooperate with Allstate with regard ...