On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-797-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2012
Before Judges Fuentes, J. N. Harris and Koblitz.
Plaintiff Elliott Kominsky appeals from the February 9, 2011 order entered after a plenary hearing granting summary judgment to defendants C.B. Planning Services Corporation (C.B.), Monte Sperling, Robert Block, Insurance Innovations Agency, Inc. (IIA), Joseph Straczewski and Norman Feld. The judge found that Kominsky's complaint was time-barred by the six-year limitation of actions. N.J.S.A. 2A:14-1. Plaintiff maintains that the hearing judge erred in finding the cause of action accrued in March 2001 and in refusing to apply the discovery rule. Plaintiff further asserts the judge made inappropriate credibility findings. After considering the issues in light of the facts and prevailing law, we affirm.
Kominsky filed a complaint on June 14, 2007, alleging claims of professional malpractice, breach of fiduciary duty, and consumer fraud*fn1 against C.B., Sperling, Block, IIA, Straczewski, and Feld. Defendant brokers sold Kominsky life insurance policies in 1989, 1992 and 1995. Kominsky claims the brokers failed to discuss with him the availability of a waiver of disability premium option in those policies. On October 9, 2009, summary judgment was entered in defendants' favor. We reversed the trial court's dismissal of Kominsky's complaint and directed the court to hold an evidentiary hearing pursuant to Lopez v. Swyer, 62 N.J. 267 (1973), on the issue of whether Kominsky's complaint was time-barred under N.J.S.A. 2A:14-1, or whether the discovery rule should be applied to toll the statute. Elliott Kominsky v. C.B. Planning Services Corporation, Monte Sperling, Robert Block, Insurance Innovations Agency, Inc., Joseph Straczewski And Norman Feld, A-1344-09T3 (App. Div. September 9, 2011).
The Lopez hearing revealed the following facts. Kominsky obtained two Transamerica life insurance policies in 1989 from Sperling and Block, both of whom were employed at the time by C.B. Section 4(e) of the applications listed four additional coverage options with instructions to place a check next to the desired option. One of the options was a "Waiver of Premium." Sperling testified that he informed Kominsky of the additional coverage options. Sperling stated he did so because the inclusion of such an option in a policy would increase his commission. Kominsky, on the other hand, testified that neither Sperling nor Block informed him of the additional coverage options. He further testified that Sperling asked him certain questions and filled out the application. Kominsky stated that he then signed the applications without reading them. The signature page to the applications signed by Kominsky includes a declaration, which states in part:
It is represented that I have read the statements and answers given in this application and they are true, complete, and correctly recorded to the best of my knowledge and belief.
The two policies were issued on December 18, 1989.
Straczewski testified to replacing the 1989 policies in 1992 with a policy from the Hartford Insurance Company. He further testified to completing the insurance application by asking Kominsky the questions and filling in his answers. On the first page of the application was a section titled "Additional Benefits." Within that section was a "Waiver of Premium" option. Straczewski attested to discussing this option with Kominsky, including its significant cost, but Kominsky declined the option. Attached to that policy was a "Waiver of Premium Rider," which explains the terms and conditions associated with incorporating that option into the policy.
Feld testified that Kominsky approached him in 1995 to purchase a life insurance policy through CNA to replace the 1992 Hartford policy. He stated they had a detailed discussion about the waiver of premium option. Feld also submitted office notes, which he alleged memorialized this discussion. On August 12, 1995, after completing the application for the CNA life insurance policy, Kominsky suffered a massive heart attack. He testified to deciding at that point to retain both the Hartford and CNA policies.
After his heart attack, Kominsky ceased working for about three weeks. He collected disability benefits pursuant to disability policies he had at the time. During that period, he spoke with a friend, Bruce Mactas, also an insurance broker. Kominsky acknowledged that during their conversation, Mactas informed him that he did not have to pay the premiums on his disability policies while collecting benefits. After he ceased collecting benefits, he resumed paying the premiums. He testified that he did not inquire if his life insurance premiums would be waived in case of disability.
Kominsky suffered another health setback during 2000 and 2001. He testified that his doctor informed him that the stress of working was causing irreparable damage to his heart. Kominsky stated that he ceased working pursuant to his doctor's advice on June 29, 2001, the date on which he sold his business.
Kominsky never purchased a waiver of premium option on any of the life insurance policies. He also testified that he never read his policies. He maintained throughout his testimony that he had never heard anything about a waiver of premium option for life insurance until another meeting with Mactas in 2002. During the 2002 meeting, Kominsky claimed that Mactas reviewed his life insurance policies and pointed out the lack of a waiver of disability premium. Kominsky then asked Feld about the waiver option, who Kominsky claims responded by stating that he ...