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President v. Jenkins2/6/2003
son stated by the motion judge. However, given the strong public policy expressed by the legislature favoring medical malpractice insurance, see Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 87 n.1 (1997), and in light of the views expressed below respecting the award of summary judgment to Princeton against Dr. Jenkins, I question the majority's dispositive reliance upon the applicability of cases such as Cruz-Mendez v. ISU/Ins. Servs. of San Francisco and Fireworks by Girone, Inc., 156 N.J. 556, 566-67 (1999), in a case where the question of efficacy of a retroactive policy cancellation would be critical to the injured third party. I agree with the majority's affirmance as to the issue of Princeton's asserted duty to notify St. Barnabas, inasmuch as the legislature had not yet seen fit to enact a provision mandating malpractice insurance coverage for physicians. See Princeton Ins. Co. v. Chunmuang, supra, 151 N.J. at 87 and footnote #4 of the majority opinion.
My partial dissent is directed to the judgments afforded to both C&R;Insurance Agency and Zurich Insurance Company on the claims of Dr. Jenkins and the Presidents, and to the summary judgment afforded to Princeton on Dr. Jenkins' claim. Some additional factual issues disclosed by the record are pertinent.
As the majority notes, C&R;itself created the Garden State Physicians Alliance (GSPA) to establish a "Risk Group." There was one master policy with Zurich for the group. C&R;was the agent for Zurich, which the record indicates, is now C&R;s controlling shareholder, although apparently not controlling during 1997 and 1998. The person who signed the formal binder given to Dr. Jenkins on behalf of Zurich as its authorized representative was both a C&R;principal and the President of GSPA.
Dr. Jenkins was solicited by a C&R;representative named O'Brien while his insurance with Princeton was in full force and effect. Portions of the record, if believed, establish that on January 8, 1998, during a final pre-application meeting, Dr. Jenkins informed O'Brien that he owed money to Princeton on the occurrence policy. O'Brien merely told Jenkins to pay the money due to Princeton. There is nothing in the record to show that O'Brien ever explained that, despite its "claims made" designation, the Zurich policy would not cover claims made after the effective date that arose from events prior to a "retroactive date."
I believe that C&R; Zurich's agent, must be charged with knowledge on January 8, 1998, that Jenkins' occurrence policy with Princeton was then in jeopardy.
It is also not at all clear that Dr. Jenkins knew on January 8, 1998, that the Princeton policy would be canceled or the date which would ultimately be selected by Princeton as the date of cancellation. Had Jenkins then known that the effective date of cancellation by Princeton would be retroactive to October 26, 1997, that knowledge, and knowledge of the meaning of the phrase "retroactive date," would have been critical to decisions made respecting utilization of the February 1, 1998 date selected for inception of the Zurich coverage.
Although the malpractice alleged by the Presidents occurred on January 3 and 4, 1998, no claims were made until over a year later when Zurich's second policy period with Dr. Jenkins was in effect. On the date that O'Brien and Jenkins met, Jenkins probably would not yet have received notice of the Princeton cancellation effective October 26, 1997. That notice was dated January 9, 1998, presumably received several days later. However, the record discloses existence of a prior Princeton notice dated January 8, 1998, date of receipt unknown, that stated a policy cancellation effe
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