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President v. Jenkins2/6/2003
ompany within the policy year. Of course, during the renewal years, the policy afforded "retroactive" coverage for negligence that occurred subsequent to February 1, 1998.
Jenkins remained an "additional insured" under the GSPA group policy for the renewal year under policy No. GPC 2727906-02 for the policy period January 1, 1999 through January 1, 2000, with the same "retroactive" date of February 1, 1998. It was during this renewal period that Jenkins made his claim for coverage for the January 3 and 4, 1998 incident involving plaintiff. Zurich denied coverage after Jenkins reported the claim because the acts of professional negligence alleged against him occurred prior to the February 1, 1998 "retroactive" date applicable to him.
Because of the gap in Jenkins' coverage created by the cancellation of the Princeton policy effective October 26, 1997 and the commencement of the Zurich policy on February 1, 1998, plaintiff, through amendments to her original complaint, added Princeton, Zurich and C&R;as defendants, seeking direct recovery against them as a third-party beneficiary of the insurance coverage alleged to be available through those insurers to Jenkins. As to Princeton, plaintiff alleged negligence because, among other things, Princeton failed to notify St. Barnabas of the cancellation of Jenkins' policy. Plaintiff also moved for leave to amend her complaint to add an additional count against St. Barnabas for negligently permitting Jenkins admitting privileges without liability insurance coverage, but this effort was rejected by the trial judge who recognized no such cause of action.
In her fourth amended complaint, plaintiff also sought a declaratory judgment, pursuant to N.J.S.A. 2A:16-53, that the professional liability insurance policy issued by Zurich through C&R;covered plaintiff's medical malpractice claim against him. Similarly, Jenkins was granted leave to amend his answer to plaintiff's fourth amended complaint to add cross-claims against Zurich and C&R; seeking a declaration of rights and coverage that he is entitled to defense and indemnity for plaintiff's claims against him.
Motions and cross-motions for summary judgment were filed by all parties save plaintiff. Judge Lawrence Weiss granted Princeton's motion for summary judgment and dismissed all claims against the insurer. Judge Weiss denied Jenkins' cross-motion for summary judgment and granted those of Zurich and C&R;dismissing all claims against them by both plaintiff and Jenkins. On October 30, 2001, Jenkins, the only remaining defendant, and plaintiff entered into a settlement agreement memorialized in a consent order, resolving all issues between the two parties, thus rendering the prior orders of the trial court final.
Appeals were filed by plaintiff and Jenkins and consolidated. Plaintiff challenges both the dismissal of her complaint as to Princeton and the denial of her motion to amend the pleading to claim negligence by St. Barnabas in its failure to ensure that its admitting physicians have professional liability insurance coverage. Jenkins challenges the dismissal of its cross-claims against Zurich and C&R; We now address each of these claims individually.
I.
Jenkins' claims against Zurich are twofold. First, he argues that the coverage limitations in Zurich's "claims made" policy, restricting coverage to claims reported to Zurich during the policy year for incidents occurring after the effective date of coverage, should not be enforced as violative of public policy and inconsistent with his reasonable expectations. Alternatively, he argues that even if enforceable, the policy language is vague and ambiguous and therefore
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