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President v. Jenkins2/6/2003
kill and diligence. On the contrary, the insurance coverage gap was created solely by the intentional actions of the insured of which C&R;was not notified.
From the time of Jenkins' first contact with C&R;in August of 1997, through January 9, 1998 when he signed the application for insurance, Jenkins consistently advised that his coverage with Princeton would not lapse until February 1, 1998 and that he therefore did not require insurance from Zurich prior to that date. Jenkins even confirmed in writing the existence of coverage with Princeton and requested coverage with Zurich "effective 2/98." Although aware of the notices of pending cancellation issued by Princeton and the insurer's eventual termination of coverage, Jenkins never advised C&R;of these events, affirmatively representing exactly the opposite in his application for insurance with Zurich. Singularly aware of Princeton's threatened cancellation, Jenkins failed to make the necessary arrangements to continue the Princeton policy in effect or to secure another policy with retroactive coverage to bridge the gap created by Jenkins' own willful non-payment of insurance premiums. Under these circumstances, in the absence of any expert proofs establishing an industry norm or customary practice, Avery, supra, 242 N.J. Super. at 301, we hold that a broker breaches no duty to an insured to affirmatively ascertain the existence of any gaps in the insured's coverage and to advise him accordingly. Without proof establishing C&R;s liability, the motion judge's grant of summary judgment in its favor was proper.
Our dissenting colleague faults both C&R;and Zurich for failing to explain to Jenkins that the Zurich policy would not cover claims made after the effective date of February 1, 1998 that arose from acts prior to the effective date. However, there is absolutely no evidence that Jenkins was unaware of this qualification on coverage. In fact, all the proof is to the contrary. The application signed by Jenkins on January 9, 1998 expressly advised him of the policy's limited retroactivity and in fact offered "prior acts coverage" that, in any event, typically excludes coverage for prior acts if the insured, as here, reasonably should have foreseen the claim. Holmes' Appleman on Insurance, § 111.2 at 116-17 (Holmes and Rhodes ed., 2d ed. 1996). And, as previously noted, the policy itself unambiguously repeats the qualification. For some reason, the dissent finds this unpersuasive, finding more significant the fact that the actual policy may not have been received until April 1998. However, the claim was not reported by Jenkins to Zurich until eighteen months later, in October 1999 when the renewal policy, issued on January 1, 1999, was in effect for over nine months.
Although properly recognizing that the extent of the duty owed a plaintiff is a matter of law to be determined by a court, the dissent goes on to expand that duty beyond any heretofore recognized in the law to effectively make insurers and their agents guarantors against any gaps in coverage.
Even under this expansive view, however, the dissent is forced to acknowledge that Jenkins may have come up far short by virtue of his own actions or negligence. Rosenblum v. Adler, 93 N.J. 324, 350-51 (1983); Martinez v. John Hancock Mut. Life Ins. Co., supra, 145 N.J. Super. at 310; Schustrin v. Globe Indem. Co., 44 N.J. Super. 462, 466-67 (App. Div. 1957); see also 16 Appleman, Insurance Law & Practices, § 8834 at 307 (John Alan Appleman and Jean Appleman 1941). Under these circumstances, for reasons stated, we reject the imposition of such a duty on either C&R;or Zurich.
III.
In light of Zurich's denial of cove
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