INSURANCE COVERAGE REQUIREMENTS UNDER TNCSRA DO NOT APPLY TO FOOD DELIVERY SERVICES
Malzberg v. Josey, et al., No. A-2883-20 (App. Div. Sep. 27, 2022)
As a matter of first impression, the Appellate Division addressed the scope of the Transportation Network Company Safety and Regulatory Act (TNCSRA), N.J.S.A. 39:5H-1 to -27, and whether the Act, which requires “transportation network companies” to provide at least $1.5 million in underinsured motorist insurance coverage, applies to food delivery services, such as Uber Eats. Plaintiff, Scott Malzberg, was injured in a motor vehicle accident while operating his motorcycle as an Uber Eats delivery driver.
The Law Division granted summary judgment in favor of defendant James River Insurance Company, dismissing plaintiff’s claim for underinsured motorist coverage on the ground that the Act applies only to the prearranged transport of persons and not to the delivery of food. Finding that nothing in the statutory text or legislative history of the TNCSRA suggested that the Legislature intended to regulate food delivery services, the Appellate Division affirmed.
Plaintiff had enrolled with Portier, LLC to deliver food through Uber Eats. Portier had a business auto insurance policy from James River which did not provide underinsured motorist benefits. Plaintiff filed a complaint against defendant Josey, driver of the vehicle that collided with plaintiff, and James River seeking coverage from James River for plaintiff’s injuries that exceeded the limits of Josey’s personal auto insurance policy. Plaintiff claimed he was entitled to underinsured motorist benefits from James River as plaintiff was employed and insured with Portier at the time of the accident.
Plaintiff argued that food delivery drivers should be afforded the same protection under the Act as those transporting passengers, since the risk of accident and injury are the same. In the Act’s definitions, there is no reference to the delivery of food or any services apart from transporting passengers. The Court held to fall within the Act’s jurisdiction and invoke the protections of its minimum insurance coverage provisions, the app-based connection must be used to arrange a ride between a driver and a human rider.
The Appellate Division noted there is pending legislation that would supplement the TNCSRA by establishing insurance coverage requirement for businesses that digitally connect customers to a “delivery network company driver for the prearranged delivery of goods.”
AFFIDAVIT OF MERIT REQUIRED IN CLAIMS AGAINST AN ASSISTED LIVING FACILITY
Priolo v. Shorrock Garden Care Center, No. A-3032-20 (App. Div. Sep. 20, 2022) (unpub.)
In an unpublished Appellate Division decision, the court addressed a claim arising from the death of a resident at an assisted living facility who contracted COVID-19. Plaintiff alleged the defendant facility deviated from the standard of care and was negligent “in failing to implement and execute appropriate protocols and standards for managing and minimizing the existing threats and risks posed by the COVID-19 virus.”
Defendant asserted statutory defenses and objected to plaintiff’s affidavit of merit, asserting the individual from whom plaintiff filed a report was unqualified to attest to the living facility’s protocols.
The trial court granted defendant’s motion to dismiss, finding plaintiff was required to serve an AOM as defendant was a licensed person under N.J.S.A. 2A:53A-26(j) as a health care facility defined under N.J.S.A. 26:2H-2. On appeal, the Appellate Division affirmed and reiterated that plaintiff was required to serve an appropriate AOM to support its complaint.
“The person executing the AOM must meet the requirements under N.J.S.A. 2A:53A-27 and, in addition to holding a professional license, also have particular expertise in the general area or specialty involved in the action.” Plaintiff’s chosen professional was not a licensed physician, nurse, nursing home administrator, or certified assisted living administrator and therefore not qualified to offer an opinion regarding the standard of care owed to decedent from an assisted living facility.
APPELLATE DIVISION AFFIRMS JURY VERDICT AWARDING ZERO DAMAGES DESPITE STIPULATION AS TO LIABILITY
Casucci v. Valan, et al., No. A-0323-21 (App. Div. Oct. 5, 2022) (unpub.)
In 2017, Plaintiff was stopped in his vehicle when a commercial struck him from behind. Plaintiff admitted the impact was minor, but suffered from neck pain, headaches, and tingling in his hand for which he received care from an orthopedist and chiropractor. Defendants admitted liability for causing the accident and stipulated that the only issue before the jury was whether the plaintiff was entitled to damages. Medical experts for both the plaintiff and defendant testified, inferencing it was possible plaintiff’s injuries were connected to a pre-existing condition of arthritis. Plaintiff moved for a directed verdict on proximate cause, which the trial court judge denied.
Following a unanimous jury verdict of zero damages, plaintiff appealed alleging, among other things, that the trial court erred by failing to enter a directed verdict on proximate cause where the defendants stipulated liability. Noting that proximate cause is ordinarily a fact issue to be resolved by a jury, the Appellate Division found the trial court correctly determined the jury was free to reject all or some of the expert witnesses’ testimony. Based on the evidence presented, including testimony from both experts, the Appellate Division ruled that jury had ample reasonable basis to determine plaintiff did not suffer a compensable injury due to the accident. Thus, the trial judge properly denied plaintiff’s motion for a directed verdict and did not err in denying motions for a new trial or additur.
OBJECTIVE STANDARD APPLICABLE TO THE LIMITATION-ON-LAWSUIT THRESHOLD
Oguntuase v. The Estate of Antoinette J. Dangerfield, et al., No. A-3641-20 (App. Div. Oct. 20, 2022) (unpub.)
In an unpublished opinion, the Appellate Division recently affirmed an order granting defendants’ summary-judgment motion, finding plaintiff failed to meet the limitation-on-lawsuit threshold standard of N.J.S.A. 39:6A-8(a).
Plaintiff and defendant were involved in a motor-vehicle accident in May 2017. In plaintiff’s parents’ automobile insurance policy, the limitation-on-lawsuit option was selected, meaning recovery is barred for pain and suffering unless the plaintiff suffers an injury resulting in one of the six categories enumerated in the statute. Those categories are: "a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.” N.J.S.A. 39:6A-8(a).
The defendants moved for summary judgment, contending plaintiff’s injuries did not meet the lawsuit threshold standard. Plaintiff contended that her scars constitute “significant disfigurement or significant scarring” under the statute. The Appellate Division agreed with the motion judge’s determination that the scars are not significant as a matter of law and do not enable plaintiff to vault the limitation-on-lawsuit threshold.
Because plaintiff failed to meet the objective standard whether scars are sufficiently significant to satisfy the threshold, summary judgment was appropriate.
QUESTION OF FACT IN HOMEOWNER’S INSURANCE POLICY APPLICATION PRECLUDED SUMMARY JUDGMENT
Pokhan v. State Farm Fire and Casualty Company, No. A-1411-19 (App. Div. Sept. 19, 2022) (unpub.)
Plaintiff appealed from a trial court decision granting summary judgment for State Farm, alleging the motion judge improperly found facts and weighed evidence in determining plaintiff provided misinformation in her homeowner’s insurance policy.
Plaintiff applied for a homeowner’s insurance policy with State Farm and was issued a policy in 2013. In 2015, there was a fire at the plaintiff’s residence. While making her claim, plaintiff failed to mention in a recorded statement that there had been two previous claims on a homeowner’s policy with a different insurer. Plaintiff corrected those misstatements a week later.
The Appellate Division found there was a material, factual dispute regarding whether plaintiff provided the claimed false information on the insurance application, rendering summary judgment inappropriate.
State Farm was previously denied summary judgment based on this dispute of fact in 2017, before trial. The unpublished opinion notes that the same factual dispute remains. The motion judge “made findings on Pokhan’s credibility without hearing her testify.” The Appellate reversed the summary judgment order, and remanded for a retrial, noting further proceedings should occur before another judge.
INSURANCE COVERAGE UNAVAILABLE 5 DAYS AFTER POLICY EXPIRATION
Fitzpatrick v. Oradell Animal Hospital, et al., No. A-3442-20 (App. Div. Nov. 1, 2022) (unpub.)
Plaintiffs appeal from a summary judgment order in favor of Continental Casualty Company that ruled defendant insurer did not owe coverage for injuries caused by an MRI machine explosion after the lease agreement for the machine had expired.
Oradell Animal Hospital had leased the MRI machine with requirements to maintain insurance, complying with this provision by purchasing insurance from Continental. Under the policy, Continental agreed to pay sums that Oradell becomes legally obligated to pay as damages because of “bodily injury”. The lease agreement and insurance coverage ended 5 days before the machine exploded, injuring plaintiff.
Defendants sought insurance coverage from Continental for plaintiff’s claims. Continental’s motion for summary judgment was granted, as the judge found the actions leading to the injury did not arise out of Oradell’s maintenance, operation, or use of the MRI, as the machine was being commissioned when it exploded. The judge also found that the clear and unambiguous terms of the insurance policy provided a person’s or organization’s status as an insured ended when the contract for such equipment ends. Any unofficial agreement to extend the lease agreement was never memorialized in writing, thus there was no coverage available under the policy.
The Appellate Division provided further interpretation that any email exchanges or informal discussions to extend the lease did not fall within the “written contract or agreement” language in the insurance policy. Because the first lease agreement ended, and the second lease agreement was never memorialized in writing, defendants failed to demonstrate they were entitled to insurance coverage. The motion judge properly granted summary judgment to Continental, and the Appellate Division affirmed.