Opinion
DOCKET NO. A-2517-12T2
06-05-2014
WILKIE D. BOWEN, Plaintiff-Respondent/Cross-Appellant, v. NEW JERSEY PROPERTY LIABILITY INSURANCE GUARANTEE ASSOCIATION, Defendant-Respondent/Cross-Respondent, and KEVIN T. WHITFIELD and ELIZABETE N. BATISTA, Defendants, and GEICO INDEMNITY COMPANY, Defendant-Appellant.
Darren C. Kayal argued the cause for appellant (Rudolph & Kayal, attorneys; Mr. Kayal, on the brief). Kenneth J. Moeller argued the cause for respondent/cross-respondent New Jersey Property Liability Insurance Guarantee Association (Francis & Berry, attorneys; Mr. Moeller, on the brief). Frederic J. Regenye argued the cause for respondent/cross-appellant Wilkie D. Bowen (Kenneth N. Lipstein, attorneys; Mr. Regenye, on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0417-10.
Darren C. Kayal argued the cause for appellant (Rudolph & Kayal, attorneys; Mr. Kayal, on the brief).
Kenneth J. Moeller argued the cause for respondent/cross-respondent New Jersey Property Liability Insurance Guarantee Association (Francis & Berry, attorneys; Mr. Moeller, on the brief).
Frederic J. Regenye argued the cause for respondent/cross-appellant Wilkie D. Bowen (Kenneth N. Lipstein, attorneys; Mr. Regenye, on the briefs). PER CURIAM
Plaintiff Wilkie Bowen filed a complaint in which he alleged he was injured on December 12, 2008, when, as a pedestrian, he was struck by an automobile that was owned by defendant Elizabete Batista and driven by defendant Kevin Whitfield. Neither Batista nor Whitfield could be located after the complaint was filed.
Government Employees Insurance Company (GEICO) issued an automobile insurance policy to Batista on July 13, 2008. GEICO later sent Batista a notice of cancellation for non-payment of premium, in which it was stated that her policy would be canceled as of 12:01 a.m. on December 10, 2008, if she did not submit the past due amount of $187.13 prior to that date.
Bowen filed an amended complaint to add GEICO as a defendant and subsequently filed a motion for partial summary judgment, seeking a declaration that GEICO was required to provide automobile insurance coverage to Whitfield and Batista, and permitting substituted service upon Whitfield and Batista by serving GEICO.
In a well-reasoned written opinion, Judge Frederic S. Kessler found that plaintiff had standing and granted Bowen's motion in all respects. In its appeal from that order, GEICO argues that the trial court erred in finding that plaintiff had standing to challenge its cancellation notice and that it had failed to comply with the requirements of N.J.S.A. 17:29C-10. GEICO does not challenge that part of the order that permitted substituted service.
N.J.S.A. 17:29C-10 provides, in pertinent part:
No written notice of cancellation . . . sent by an insurer to an insured in accordance with the provisions of an automobile insurance policy shall be effective unless a. (1) it is sent by certified mail or (2) at the time of the mailing of said notice, by regular mail, the insurer has obtained from the Post Office Department a date stamped proof of mailing showing the name and address of the insured and b. the insurer has retained a duplicate copy of the mailed notice which is certified to be a true copy.
[Emphasis added.]
GEICO argues that it satisfied subsection b of N.J.S.A. 17:29C-10 through its electronic retention of the notice of cancellation pursuant to N.J.S.A. 12A:12-12.
In his opinion, Judge Kessler reviewed the applicable law and concluded that N.J.S.A. 17:29C-10 required a contemporaneous certification of the duplicate copy for a notice of cancellation to be effective. We agree with both his conclusions and analysis, and therefore, affirm, substantially for the reasons set forth in his written opinion.
Plaintiff filed a protective cross-appeal, arguing that, in the event that we reversed the order granting partial summary judgment, an order that dismissed his complaint against defendant New Jersey Property Liability Insurance Guarantee Association without prejudice should be reversed. In our light of our decision, this argument is moot.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION