January 17, 2013
HEATHER N. ROSEN, PLAINTIFF-RESPONDENT,
MICHAEL R. EARLE, WILLIAM J. RICHARDS, STACY L. CARLUCCI, GEICO INDEMNITY INSURANCE COMPANY AND PERSONAL SERVICE INSURANCE COMPANY, DEFENDANTS-RESPONDENTS, AND CURE AUTO INSURANCE, NEW JERSEY CITIZENS UNITED RECIPROCAL EXCHANGE A/K/A NJ CURE, RECIPROCAL MANAGEMENT CORPORATION, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-633-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 9, 2013
Before Judges Axelrad and Haas.
Plaintiff, a passenger, had sued defendants, owners and operators of motor vehicles involved in a collision, for damages for injuries allegedly sustained by her in the accident. She also named, among other defendants, appellant Citizens United Reciprocal Exchange (CURE), who had issued an insurance policy to defendant Stacy Carlucci, the owner of one of the vehicles, and sought a declaratory judgment that it was obligated to extend liability insurance coverage under the policy. Appellant filed responsive pleadings alleging Carlucci and defendant operator, William Richards, had made material misrepresentations or omissions that permitted it to void an endorsement to the policy.
On Carlucci and Richards' motion for summary judgment and appellant's cross-motion for summary judgment, Judge Richard S. Hoffman entered an order on October 31, 2011, denying appellant's cross-motion for summary judgment without prejudice, severing appellant's cross-claim and counterclaim from the liability action, requiring appellant to provide indemnification for Carlucci and Richards for plaintiff's claim in the amount of $15,000 pursuant to New Jersey Manufacturer's Insurance Co. v. Varjabedian, 391 N.J. Super. 253 (App. Div.), certif. denied, 192 N.J. 295 (2007), and directed appellant to re-file the cross-motion for summary judgment in the newly severed action.
A motion for summary judgment was apparently re-filed under the new docket on November 23, 2011. Prior to the return date, the liability case settled and a Stipulation of Dismissal with Prejudice was filed in that action on December 19, 2011. In January 2012, appellant filed this appeal, challenging the indemnification portion of the October 31, 2011 order.
Another judge set the severed matter down for a proof hearing as Carlucci was in default. Prior to the hearing, the case settled and Carlucci paid appellant $4000. A notice of dismissal of the severed action was filed on March 20, 2012.
Appellant raises the following arguments on appeal:
THE TRIAL COURT ERRED IN RULING THAT CURE WAS REQUIRED TO PROVIDE INDEMNIFICATION FOR PLAINTIFF'S CLAIM BASED ON THE FRAUDULENT CONDUCT OF THE INSURED.
WHERE A POLICY IS VOIDED FOR MATERIAL MISREPRESENTATION, INNOCENT THIRD PARTIES ARE ENTITLED TO MANDATORY MINIMUM BENEFITS UNDER THE VOIDED POLICY.
In its brief, appellant states:
CURE appeals from the trial decision entered on October 31, 2011 which required indemnification under the voided policy. CURE seeks not to upset the settlement in the trial court which resulted from the Order under appeal which required coverage to be provided under the voided policy in the amount of $15,000. CURE seeks review and reversal of the underlying law to be relied upon in future matters.
Appellant contends in its conclusion that in Varjabedian, we "misinterpreted the true compulsory insurance requirements and legislative intent when holding that a carrier must provide $15,000/$30,000 in insurance coverage under a voided policy. Since AICRA became the law, the compulsory insurance requirements in New Jersey are the basic policy, which provides for no bodily insurance coverage." Appellant urges:
As such, and with great respect, the Varjabedian decision must be overturned. Insurance carriers should not be compelled to provide any coverage greater than the basic policy when a policy is retroactively voided as the basic policy is the mandatory minimum.
Appellant acknowledges it is not seeking relief for the parties in the underlying case but, nonetheless, urges us to render a decision "in the public interest" to prevent the recurring issue of insurance fraud. We decline to do so.
If a case has been settled, the underlying legal issues are rendered moot because there is no controversy. Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996). The Supreme Court has cautioned us to "appropriate confine litigation to those situations where the litigant's concern with the subject matter evidenced a sufficient stake and real adverseness." Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971). See also City of Plainfield v. N.J. Dep't of Health & Senior Servs., 412 N.J. Super. 466, 483-84 (App. Div.) (holding that a court should dismiss a case as moot if the decision "can have no practical effect" on the controversy) (internal quotation marks and citations omitted), certif. denied, 203 N.J. 93 (2010).
Appellant here is requesting we answer an abstract question and provide an advisory opinion. "The notion that a court of appeals willy-nilly can decide issues unnecessary to the outcome of the case results in the wholesale issuance of advisory opinions, a practice our judicial decision-making system categorically rejects." State v. Rose, 206 N.J. 141, 189 (2011). See also DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (recognizing it is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed); Indep. Realty Co. v. Twp. of N. Bergen, 376 N.J. Super. 295, 301 (App. Div. 2005) (noting that while the New Jersey Constitution does not confine the exercise of judicial power to actual cases and controversies, "it is well settled that [courts] will not render advisory opinions or function in the abstract").
We are not persuaded this is a matter of significant public importance warranting our determination at this juncture. See Zirger, supra, 144 N.J. at 330 (holding that on occasion courts have decided an otherwise moot appeal "where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review"). Accord In re Conroy, 98 N.J. 321, 342 (1985) (addressing the withholding or withdrawing of life sustaining treatment); State v. Perricone, 37 N.J. 463, 469 (considering blood transfusion for infant son of Jehovah's Witnesses), cert. denied, 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d (1962); Advance Elec. Co., Inc. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166-67 (App. Div.) (considering a school board contract and subcontract), certif. denied, 174 N.J. 364 (2002).
Accordingly, the appeal is dismissed as moot.
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