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President v. Jenkins2/6/2003
rage, plaintiff brought a direct action against Jenkins' predecessor insurer, Princeton, alleging negligence for failing to notify St. Barnabas of its cancellation of coverage. The motion judge dismissed this count of plaintiff's complaint finding that she could not maintain a direct cause of action against her tortfeasor's insurer prior to recovery of judgment against the latter. Plaintiff appeals from this determination, and moreover argues, for the first time, that Princeton's termination of its insurance contract with Jenkins was ineffective and therefore coverage should obtain.
Since no declaration of coverage under the Princeton policy was sought in the trial court, the issue of the effectiveness of Princeton's cancellation may not now be reviewed on appeal. See Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973); Conrad v. Robbi, 341 N.J. Super. 424, 447 (App. Div.), certif. denied, 170 N.J. 210 (2001). Suffice it to say, however, nothing in the record before this court suggests that Princeton's cancellation of January 9, 1998, retroactive to October 26, 1997, was other than within the boundaries of its policy with Jenkins, the terms of which explicitly provide for cancellation for non-payment of premium.
As to plaintiff's negligence claim against Princeton, it is well recognized that an injured person possesses no direct cause of action against the insurer of the tortfeasor prior to recovery of judgment against the latter. Cruz-Mendez v. ISU/Ins. Servs., 156 N.J. 556, 566-67 (1999); Manukas v. American Ins. Co., 98 N.J. Super. 522, 524-25 (App. Div. 1968); see also Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221, 226 (App. Div. 1989). Thus, plaintiff's direct action against Princeton fails to state a claim on which relief could be granted and was therefore properly dismissed.
Even if such a cause of action were recognized, however, the existence of a duty is a question of law to be determined by the court and may appropriately be resolved on a motion for summary judgment, as was done here. See Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991); Strawn by Strawn v. Canuso, 271 N.J. Super. 88, 100 (App. Div. 1994), aff'd, 140 N.J. 43 (1995). See also, Huddell v. Levin, 537 F.2d 726 (3rd Cir. 1976) (holding that in a negligence case under laws of New Jersey, the preliminary determination of whether a duty exists is for the court); Meistich v. Casino Arena Attractions, Inc., 54 N.J. Super. 25 (App. Div.), modified on other grounds, 31 N.J. 44 (1959). We have previously held that in the absence of an explicit statutory, regulatory or contract provision that otherwise requires, "neither the insurer nor its agent has a legal duty to give notice of the expiration of a policy . . . ." Howard Savs. Bank v. Liberty Mut. Ins. Co., 285 N.J. Super. 491, 495 (App. Div. 1995) (citing Citta v. Camden Fire Ins. Assoc., Inc., 152 N.J. Super. 76, 78 (App. Div. 1977)). See e.g., N.J.S.A. 17:29C-1 (requiring insurer to notify mortgage holder of the cancellation of an insurance policy). We know of no authority in this State imposing on medical malpractice liability carriers the duty to notify hospitals of cancellation of insurance coverage for physicians with admitting privileges therein. In our view, neither notions of basic fairness, nor public policy considerations, nor the factual circumstances of this case dictate the judicial creation of such a legal duty, a decision best left to the legislative or executive branches of government. In the absence of any duty on the part of Princeton as a matter of law, the grant of summary judgment in its favor was proper.
IV.
Finally, plaintiff sought to impose liability on St. Barnabas for failing to ensure that physici
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