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President v. Jenkins2/6/2003
ntly made that arose out of events preceding the effective date.
The scope of duties owed by an insurance agent or broker to an insured in fulfillment of its responsibility to act with reasonable skill and diligence has been extensively outlined in Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 188-90 (1994). It is unnecessary to here repeat the authorities cited in Carter. Although the issue of due care in given circumstances is certainly fact sensitive, I believe that if the facts are as above stated, C&R;and indeed Zurich, should be found to have breached an actionable duty to Dr. Jenkins as well as to the Presidents, who are persons within the foreseeable ambit of injury resulting from that breach.
Authority for extending the duty to the Presidents, as persons allegedly injured by Dr. Jenkins' malpractice, is amply provided in Carter, supra, 135 N.J. at 194-98, as well as in cases like Werrmann v. Aratusa, Ltd., 266 N.J. Super. 471, 474- 75 (App. Div. 1993); Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 261-62 (App. Div. 1987); and Eschle v. Eastern Freight Ways, Inc., 128 N.J. Super. 299, 304-06 (Law Div. 1974).
I am concerned, too, with the motion judge's heavy reliance upon the lack of ambiguity in the insurance documents respecting the effect of use of the term "retroactive date." Concededly, the policy language is not ambiguous to me. That issue is academic, however, as the policy was not sent to Jenkins until April of 1998, well after anything could have been done to correct its impact upon events of January 3 and 4, 1998. Moreover, the documents provided to Jenkins do not pass muster under our opinion in Lehrhoff v. Aetna Cas. and Sur. Co., 271 N.J. Super. 340, 346-50 (App. Div. 1994). The only confirmation of Jenkins' coverage with Zurich until April 1998, were two documents that I would deem effectively comparable to the declarations page considered in Lehrhoff, and that failed to warn the insured of the limitation imposed by the words "retroactive date." The two documents received by Dr. Jenkins were a binder and a "Certificate of Insurance," each a one-page document containing a number of somewhat confusing dates. The binder recites 1/01/98 as the beginning of the "policy period," but 02/01/98 as the date of the binder that runs to 4/01/98. The "retroactive date" is indeed set forth as February 1, 1998, but the meaning of that term as compared to "effective date" is not explained in the documents, and, as indicated by O'Brien's deposition testimony, does not appear to have been properly explained to Dr. Jenkins.
Based upon the foregoing considerations, I would reverse the grants of summary judgment to both C&R;and Zurich.
I would also reverse the award of summary judgment in favor of Princeton against Dr. Jenkins inasmuch as it is at least disputable when he knew or should have known that his policy was canceled effective October 26, 1997. Ordinarily, a cancellation voids a policy prospectively. See, e.g., First Amer. Title Ins. Co. v. Lawson, 351 N.J. Super. 407, 422 (App. Div.), certif. granted, 174 N.J. 357 (2002).
I would not, however, grant summary judgment to the Presidents or Dr. Jenkins on their claims. A review of the deposition testimony of Dr. Jenkins shows that he appeared uncertain as to relevant dates, and this might be deemed by a trier of fact to suggest his awareness of a lack of coverage under either policy for events occurring in January 1998.
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