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Ensey v. Government Employers Ins. Co.

United States District Court, D. New Jersey

March 17, 2015

SHANNON L. ENSEY, Individually on behalf of herself and all others similarly situated, Plaintiffs,
v.
GOVERNMENT EMPLOYERS INSURANCE COMPANY, GEICO CASUALTY COMPANY, GEICO INDEMNITY COMPANY, GEICO GENERALY INSURANCE COMPANY, and JOHN DOES (1-300), Defendants

Page 254

For Plaintiffs: Michael A Galpern, Esq., Andrew P. Bell, Esq., James A. Barry, Esq., LOCKS LAW FIRM, LLC, Cherry Hill, NJ.

For Plaintiffs: Ken Andres, Esq., Tommie Ann Gibney, Esq., ANDRES & BERGER, PC, Haddonfield, NJ.

For Defendants: Michael N. Onufrak, Esq., Edward M. Koch, Esq., WHITE AND WILLIAMS LLP, Cherry Hill, NJ.

OPINION

Page 255

HONORABLE JOSEPH E. IRENAS, Senior United States District Judge.

Plaintiff Shannon L. Ensey brings this putative class action law suit against Defendant Government Employers Insurance Company and related entities (hereinafter " GEICO" or " Defendant" ) for the alleged violation of its statutory obligations to inform Plaintiff of her UM/UIM coverage options when Plaintiff purchased her automobile insurance policy.

Currently pending before the Court are Defendant's Motion for Summary Judgment and Plaintiff's Motion for a Continuance pursuant to Federal Rules of Civil Procedure Rule 56(d). For the reasons explained herein, the Plaintiff's motion will be DENIED and Defendant's motion will be GRANTED.

I. Background

The Court recites those facts relevant to deciding the pending motions.

On April 29, 2005, Plaintiff Sharon Ensey was issued a GEICO automobile insurance policy, which she had purchased via the internet. (Plaintiff's Responsive Statement of Material Facts Not in Dispute (" P.R.S.M.F." ) at 5-7) Under this policy, Plaintiff obtained Bodily Injury Liability (" BI" ) coverage limits and Uninsured/Under Insured Motorists limits of $25,000/$50,000. (Id. at 7)[1]

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Plaintiff claims that specific policy documents - the Buyer's Guide, Coverage Selection Form (CSF), and Customer Bill of Rights - were not " readily available" to her on GEICO's website before she purchased the policy, though Plaintiff does not dispute that she could obtain access to these policy documents through the website after she purchased the policy. (Id. at 7-8) Defendant, pointing to the design requirements specification for its New Jersey website, states that the site's New Jersey introduction page included links to these documents. (NJ Live Software Requirements Specification, Ex. P to Def.'s Motion for Summary Judgment (" D.M.S.J." )) Defendant also claims that it mailed hard copies of these documents to Plaintiff following her application over the internet. (Defendant's Statement of Material Facts Not in Dispute (" D.S.M.F." ) ¶ 19) Plaintiff does not recall receiving these forms, though she does not dispute that it was Defendant's ordinary custom and practice to mail these policy documents to an insured. (P.R.S.M.F. at 8) Nothing in Defendant's records indicates that the mailing was returned by the post office. Both parties agree that Defendant never received a signed CSF from Plaintiff for the policy she purchased in April 2005.

Defendant states that, over the next two years, it mailed plaintiff her policy documents, including policy cards, coverage descriptions, CSFs, a Customer Bill of Rights, and Buyer's Guides, upon each automatic six-month anniversary renewal of Plaintiff's policy. (D.S.M.F. ¶ 21) Plaintiff does not recall receiving these documents, but concedes that it was Defendant's ordinary custom and practice to automatically send them to an insured and that nothing in Defendant's logs suggests that the mailings were returned to sender. (P.R.S.M.F. at 9-10)

On or about January 21, 2008, Plaintiff called GEICO to make a mid-term change to her existing policy. (Id. at 10) Up to this point, Plaintiff's BI and UM/UIM coverage limits remained at $25,000/$50,000. (Id.) During the call, Plaintiff replaced the vehicle on her policy and raised her BI limits to $100,000/$300,000.[2] (Id.) Plaintiff did not raise her UM/UIM limits to meet her new BI limits, though Plaintiff claims that Defendant did not inform her of her option to do so. (Id.) After the call, Defendant emailed Plaintiff an identification card reflecting the changes to her policy. (Id. at 11) Plaintiff also states that she may have received a declaration page reflecting these changes, which Defendant claims its document system automatically mailed to Plaintiff after she made the change to her policy. (Id. at 12)

Defendant states that its document system also automatically mailed Plaintiff policy anniversary renewal documents, which included a CSF, Buyer's Guide, and Bill of Rights, on March 15, 2008. (Truslow Aff. ¶ ¶ 9-10) These documents reflected Plaintiff's new BI limit of $100,000/$300,000 and that her UM/UIM coverage remained at $25,000/$50,000. Plaintiff again concedes that it was Defendant's ordinary custom and practice to send such documents but she does not remember receiving them. (Id. at 12) During her deposition, Plaintiff admitted that she did not recall whether

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she had ever read any of the policy documents Defendant had sent her over this period of time. (Ensey Dep. at 39:14-19)

On August 1, 2008, Plaintiff sustained serious injuries in a motor vehicle accident caused by Carlos Torres, an underinsured motorist. (D.S.M.F. ¶ 1) Plaintiff sued Mr. Torres and Defendant in Burlington County Superior Court on or about May 13, 2010. (Complaint in Ensey v. Torres, Ex. C to D.M.S.J.) Mr. Torres's insurance company eventually tendered his policy limits of $15,000. (P.R.S.M.F. at 15-16) Defendant tendered an additional $10,000 to bring Plaintiff's UIM coverage up to her $25,000 policy limit. (Id.)

Plaintiff deposed four of Defendant's employees in the Torres litigation between February 2011 and November 2012. (Id. at 3-4) Plaintiff then filed the present putative class action against Defendant in the United States District Court for the District of New Jersey on December 14, 2012. (See Complaint) On April 2, 2014, this Court granted Plaintiff's request to issue a release and make application to the Superior Court to withdraw the amount tendered by Mr. Torres's insurance provider. (Docket No. 3) Plaintiff did not seek release of the funds Defendant had tendered. (Id.) Plaintiff terminated its litigation against Mr. Torres on June 18, 2013.

In the present litigation, Plaintiff asserts five causes of action against Defendant for failing to provide her with a CSF at the inception of her coverage and failing to inform her of the opportunity to raise her UM/UIM limits throughout the course of her coverage: (1) breach of statutory duty under N.J.S.A. 17-28-1.1, 17:28-1.9, 39:6A-23, 17:22A-29 and N.J.A.C. 11:3-15.7; (2) breach of the implied covenant of good faith and fair dealing; (3) breach of contract; (4) violation of New Jersey's Consumer Fraud Act; and (5) violation of New Jersey's Truth in Consumer Contract, Warranty, and Notice Act.

On November 7, 2013, the Court granted Defendant's motion to dismiss as to the last four claims. Ensey v. Government Employers Ins. Co., No. 12-07669 (JEI/KMW), 2013 WL 5963113 (D.N.J. Nov. 7, 2013) (hereinafter " Ensey I " ). The Court left standing Plaintiff's claim that Defendant breached its statutory duties, which the Court considers to be a claim for reformation of her insurance contract, by failing to inform Plaintiff of the available UM/UIM coverage. Id. at *6. On March 11, 2014, the Court denied Plaintiff's motion for reconsideration. Ensey v. Gov't Emp'rs Ins. Co., No. 12-07769, 2014 WL 941359 (D.N.J. March 11, 2014) (hereinafter " Ensey II " ).

In permitting Plaintiff's breach of statutory duty claim to stand, the Court commented that Plaintiff had asserted in her Complaint and during oral argument that she originally purchased her insurance policy over the phone. Id. at *7-8. Although Defendant presented evidence after oral argument that Plaintiff had actually purchased her policy over the internet,[3] which would trigger alternative statutory notice requirements, the posture of the case limited the Court's consideration of evidence outside Plaintiff's pleadings. In Plaintiff's submissions related to ...


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