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Heather N. Rosen v. Michael R. Earle

January 17, 2013

HEATHER N. ROSEN, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:

POINT I

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.

POINT II

WHERE A POLICY IS VOIDED FOR MATERIAL MISREPRESENTATION, INNOCENT THIRD PARTIES ARE ENTITLED TO MANDATORY MINIMUM ...


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