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Jehan Zeb Mir, M.D v. Admiral Insurance Company

May 16, 2012

JEHAN ZEB MIR, M.D., PLAINTIFF-APPELLANT,
v.
ADMIRAL INSURANCE COMPANY, LEMAC & ASSOCIATES, INC., AND NARVER ASSOCIATES, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3712-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 27, 2012 --

Before Judges Reisner and Simonelli.

Plaintiff Jehan Zeb Mir, a physician, appeals from two orders dated October 15, 2010, granting summary judgment dismissing his complaint against his professional liability insurer, Admiral Insurance Company (Admiral), and granting a motion to dismiss the complaint against insurance broker Narver Associates, Inc. He also appeals from an October 29, 2010 order, granting a motion to dismiss filed by insurance broker Lemac & Associates. For the reasons that follow, we affirm.

I

The appeal turns on the interpretation of a professional liability policy written by Admiral, covering the period May 1, 2002 to May 1, 2003.*fn1 Plaintiff, who practiced medicine in California, obtained this professional liability insurance from Admiral, an insurer based in New Jersey. In his complaint, he contended that Admiral wrongfully refused to reimburse him for his legal costs to defend a disciplinary action filed against him by the California Medical Board. Viewed indulgently, his complaint also alleged that, if his claim was not timely transmitted to Admiral, it was the fault of the two brokers, whom he alleged were Admiral's agents for purposes of submitting a claim.

Documents in plaintiff's appendix reveal the following background information. On January 20, 2003, Pomona Valley Hospital Medical Center (Pomona Hospital) reported to the California Medical Board that the Hospital had finally terminated plaintiff's staff privileges based on a series of proceedings that started in November 10, 2000, when the Hospital summarily suspended plaintiff's "vascular surgery privileges." Plaintiff submitted a March 21, 2003 letter to one of the brokers, disclosing a "pending matter at Pomona Valley Hospital." Through the broker, he later provided Admiral a copy of an August 31, 2003 administrative complaint filed by the California Medical Board.

The 2003 Board complaint alleged that plaintiff rendered inappropriate care to patient G.F. at San Antonio Community Hospital in June of 2000. The complaint further alleged that plaintiff improperly delayed G.F.'s treatment by ordering that she be transferred from San Antonio Hospital to Pomona Hospital instead of immediately operating on her and accused him of rendering improper treatment after she was transferred to Pomona Hospital.

In 2006, plaintiff sent a letter making a claim against the May 2002-May 2003 Admiral policy, alleging that Pomona Hospital had filed a complaint against him with the California Medical Board, based on his treatment of G.F., and contending that in 2003, the Board, in turn, filed a professional disciplinary action against him. Plaintiff sought reimbursement for over $250,000 in legal fees spent to defend against the Medical Board prosecution. Admiral responded that plaintiff's claim was untimely, because it was not submitted during the policy period or the relatively short extended reporting period after the policy expired. Admiral also contended that the policy did not cover prosecutions brought by a professional licensing board, as opposed to malpractice suits for damages filed by patients.

After Admiral denied coverage, plaintiff sued Admiral and the two brokers in the Law Division in New Jersey, alleging breach of contract and other claims. All of the defendants filed motions to dismiss the complaint or for summary judgment. In its summary judgment brief to the trial court, Admiral admitted, solely for purposes of its motion, that plaintiff made a timely claim under the policy. Therefore, the only issue before the trial court was whether the policy covered the claim.

In an oral opinion issued October 15, 2010, the motion judge granted summary judgment dismissing the complaint against Admiral on the grounds that the policy did not cover professional disciplinary actions, as opposed to malpractice actions filed by patients. He then granted the motions to dismiss filed by the two insurance brokers.*fn2

II

We review the trial court's grant of summary judgment de novo, determining whether there are material disputes of fact and, if not, whether the undisputed facts, viewed most favorably to the non-moving party, entitle the moving party to judgment as a matter of law. See Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We likewise review de novo the grant of a motion to dismiss under Rule 4:6-2(e), using the same standard employed by the trial court. See Seidenberg v. Summit Bank, 348 N.J. Super. 243, 249-50 (App. Div. 2002). A motion to dismiss should only be granted if we cannot "glean" a cause of action, even after reviewing the complaint "in depth and with liberality," assuming all its factual allegations to be true. Id. at 250.

The only issue properly before us on this appeal is the interpretation of the insurance policy. For purposes of the summary judgment motion, Admiral declined to raise the timeliness of the claim, and therefore that issue is not before us now. Moreover, if the policy does not cover plaintiff's claim, the brokers cannot be liable for allegedly failing to properly transmit the claim to Admiral. Plaintiff's complaint suggested no other claim against the brokers, and his appellate brief does not articulate any other claim. Therefore we turn to the law relating to the construction of the insurance policy.

The first question we address is which state's substantive law applies in interpreting the policy. When New Jersey is the forum state, we look to New Jersey procedural law to resolve a choice-of-law issue. N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., a Div. of Keller Sys. Inc., 158 N.J. 561, 569 (1999). In applying New Jersey's law on choice-of-law, we consider the following well established principles, set forth in a case involving the construction of an insurance contract:

[O]ur courts have adopted a more flexible approach that focuses on the state that has the most significant connections with the parties and the transaction. . . . [B]ecause the law of the place of contract "generally comport[s] with the reasonable expectations of the parties concerning the principal situs of the insured risk," that forum's law should be applied "unless the dominant and significant relationship of another state to the parties and the underlying issue dictates that this basic rule should yield." In making that determination, courts should rely on the factors and contacts set forth in Restatement sections 6 and 188. [Gilbert Spruance Co. v. Pennsylvania Mfrs. Ass'n Ins. Co., 134 N.J. 96, 102 (1993) (citations omitted) (citing Restatement (Second) of Conflicts, § 6, 188) (other citations omitted).]

See also Polar Int'l Brokerage Corp. v. Investors Ins. Co. of Am., 967 F. Supp. 135, 141 (D.N.J. 1997) ("'If a company from another state uses an insurance broker to negotiate and purchase its insurance policies, then the place of contracting is the place where ...


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