On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6217-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
In this appeal, plaintiff Peter Heller (Heller) appeals from two orders of the trial court, the first denying his cross-motion for summary judgment against defendant First UNUM Life Insurance Company (First UNUM), and the second, following a bench trial, dismissing the counts in his complaint alleging breach of contract and violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195. We affirm.
Heller worked as a police officer for the Port Authority of New York and New Jersey. On January 15, 1993, he purportedly suffered disabling injuries in an accident while on duty at the Port Authority building in New York City. There were no witnesses, but he claimed that he fell down an entire flight of stairs, injuring his knee, back, and shoulder. Ten days later, he applied for accidental disability retirement with the State of New York. That application was subsequently approved.
At the time of the accident, Heller was insured by First UNUM under three policies (the policies). The policies provided for monthly payments while Heller was totally disabled and under the care of a physician other than himself, following an initial elimination period when no benefits were available. "Total disability" was defined as being injured to the point that, "as a result of sickness or injury, you are unable to perform the material and substantial duties of your occupation." The policies also provided for "own occupation" coverage, meaning he would still be eligible for monthly benefits even if he returned to some form of work other than that of police officer, as long as his injury still prevented him from being a police officer.
Receipt of benefits under the policies required Heller to notify First UNUM of the claimed disability and to provide medical information relating to the injury as well as a summary of the events leading to the injury. When the January 15, 1993 accident occurred, Heller was under investigation by the federal government for illegally receiving disability payments in connection with another work-related injury he sustained in 1980. He was indicted and suspended without pay on February 2, 1993. He was tried that summer and convicted in August 1993 of conversion, fraud, and making false statements to the Social Security Administration. He was sentenced to eighteen months in prison and permanently banned from securing employment as a police officer. Before trial on the matter, Heller advised First UNUM in a letter dated "April 13, 199"*fn1 that he had been injured in an accident on January 15, 1993 and was providing the required ninety-day notice, but stated he "[was] not, however, making a claim for benefits" and he would let First UNUM know "of any change in [his] condition should a claim ever be necessary."
Also in August 1993, following an independent medical examination, a determination was reached that Heller's January 15 accident resulted in permanent left shoulder disability. On September 27, 1993, Heller was granted accidental disability retirement. On January 10, 1995, an arbitrator determined that Heller was already retired when indicted, and therefore the Port Authority had no authority to discipline him and eliminate his post-retirement benefits.
In early 1996, after being released from prison, Heller filed a claim with First UNUM seeking benefits for injuries sustained as a result of the January 15, 1993 accident. He later withdrew this claim. In 2000, however, he filed a new claim alleging that on July 11, 2000, he began experiencing pain in his back and knee, but made no mention of any shoulder injury. First UNUM denied this claim, and Heller took no further action.
In 2003, Heller filed another claim with First UNUM seeking disability benefits based upon his 1993 shoulder injury. First UNUM considered the claim untimely, but agreed to re-visit it. During its investigation, First UNUM learned about Heller's 1993 conviction. It denied Heller's claim on September 27, 2004, on the basis that: (1) it did not find the claim credible, (2) Heller provided false information on his applications for insurance coverage, and (3) it had been prejudiced by the lack of supporting evidence related to his claimed shoulder injury. Following this denial, Heller's attorney continued to engage in discussions with First UNUM's in-house counsel. In a letter dated March 13, 2006, in-house counsel advised Heller's attorney that the claim was time-barred because Heller failed to assert his claim within three years of the time when the proof of loss was required to be filed.
On July 16, 2007, Heller filed a complaint against First UNUM, a number of its affiliates and individual employees, and certain public officials of the State of New Jersey. The complaint contained counts for breach of contract (Count I), breach of the covenant of good faith and fair dealing (Count II), breach of fiduciary duty (Count III), declaratory relief (Count IV), intentional and negligent infliction of emotional distress (Count V), unlawful, unfair, and intentional violations of the Claims Settlement Practices Act (CSPA), N.J.S.A. 17B:30-13.1 (Count VI), violation of the CFA (Count VII), violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), N.J.S.A. 2C:41-1 to -6.2 (Count VIII), and an action in lieu of protective writs (Count IX). Counts I-VIII were brought against the First UNUM defendants only, while Count IX was brought against the State defendants only. Defendants collectively filed a motion to dismiss, and on May 9, 2008, Judge Paley granted the motion to dismiss with respect to Counts III, VIII, and IX.*fn2
Defendants then answered the complaint on June 13, 2008, denying all allegations. On August 12, 2009, defendants moved for summary judgment on all remaining counts. Heller filed a cross-motion for summary judgment on December 11, 2009. Judge Paley denied Heller's cross-motion and granted First UNUM's motion for summary judgment with respect to Counts II and V,*fn3 leaving only Counts I (breach of contract), IV (declaratory relief), VI (CSPA), and VII (CFA) to be tried.
Trial commenced in April 2010 after Heller waived his right to a jury trial. On August 20, 2010, Judge Paley dismissed all remaining claims, although he awarded Heller a return of premiums paid to keep the policies in effect from the last denial of his claim. Heller filed a Notice of Appeal on October 4, 2010.
On appeal, Heller raises the following points for our review:
WHETHER SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO HELLER ON HIS CROSS[-]MOTION. POINT II
HELLER SHOULD HAVE A JUDGMENT OF BAD FAITH BECAUSE THE DENIAL OF HIS CLAIM WAS ...