On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7250-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Espinosa.
Defendant, New Jersey State PBA-LPP (the LPP), is a member-funded benefit sponsored by the New Jersey State Patrolmen's Benevolent Association (State PBA). The LPP provides for the cost of legal defense and related expenses in certain criminal, civil and administrative proceedings. This benefit is provided solely for members of the State PBA who choose to participate in the LPP and is only available to them through their local PBAs.
The LPP Plan Document defines "Member" as a person who is a licensed or certified peace officer and a member of the PBA who has paid the annual fee required for this member benefit. "Member" includes members covered under an expired policy who reapply within thirty (30) days after the inception of this policy. [(Emphasis added).]
Prior to March 2002, a legal protection plan was offered that was administered by two insurance companies. In 2002, the State PBA Board of Delegates approved the LPP, which was administered in-house as of September 2008. Thereafter, as insurance contracts between local PBAs and the insurance company expired, a local PBA had to join the LPP in order to continue to offer the benefit to its members. Each local PBA that chose to join the LPP submitted payment to the LPP for its participating members each year along with a roster of eligible members. It is undisputed that payment was made by each local PBA and not by individual members.
In April 2010, plaintiff Charles K. Zisa, then the Chief of Police in Hackensack, was served with a complaint, alleging he had committed insurance fraud, N.J.S.A. 2C:21-4.6(a), and with notice of disciplinary action, alleging statutory misconduct, N.J.S.A. 40A:14-147, insurance fraud, N.J.S.A. 2C:21-4.6(a), and conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a), and imposing immediate suspension. It is undisputed that he was a member in good standing of defendant New Jersey State Patrolmen's Benevolent Association (Local #9) at that time, and as a result, was a member of the State PBA. He had served as a police officer in Hackensack since 1977 and, after twenty-five years, he was "exempt from yearly dues." He was enrolled in Local #9's legal protection plan and received membership cards that were issued through 2001. Membership cards for the legal protection plan were not issued thereafter.
Local #9 became a participant in the LPP effective January 1, 2003. From that year forward, Local #9 provided rosters of eligible members and payment to the LPP. Plaintiff's name was never included on any of these lists of eligible members. No one notified plaintiff that he was not included on the roster of eligible members submitted to the LPP or that his membership had been terminated.*fn1
Plaintiff's attorney forwarded copies of the complaint and notices of disciplinary action and suspension along with a claims form to Kevin Lyons, the LPP plan administrator, requesting that the LPP provide him with legal coverage for his defense in both the disciplinary and criminal matters.
Lyons responded by a letter which stated, "Br. Zisa is not enrolled in the New Jersey State P.B.A. Legal Protection Plan." Plaintiff's counsel sent a second letter to Lyons, asking him to clarify his position by providing the following information: the process by which officers enroll in the LPP, whether plaintiff was ever enrolled in the LPP, and, if so, when and why enrollment was terminated. Lyons testified that he telephoned counsel and advised that he would not provide such information to counsel but would give it directly to plaintiff if he asked for it.
In July 2010, plaintiff filed a verified complaint and order to show cause against the State PBA and Local #9, seeking declaratory judgment that he is entitled to coverage under the LPP for the criminal, civil and administrative claims against him. He subsequently filed an amended complaint, adding a claim for counsel's fees pursuant to Rule 4:42-9.
Defendant State PBA filed an answer with affirmative defenses that included assertions that the court lacked jurisdiction and that plaintiff had failed to exhaust administrative remedies. In August 2010, the court ordered that limited discovery be taken and denied a motion filed by Local #9 to be dismissed from the case.
In October 2010, a Bergen County grand jury returned a nine-count indictment against plaintiff, alleging acts of official misconduct. Plaintiff sent a copy of the indictment to Lyons and, by letter dated ...