Allstate New Jersey Ins. Co. v. Gregorio Lajara (073511)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

Allstate New Jersey Insurance Co. v. Gregorio Lajara (A-70-13) (073511)

Argued January 5, 2015 -- Decided July 16, 2015

ALBIN, J., writing for a unanimous Court.

The issue in this appeal is whether a civil defendant sued by an insurance company for violating the
Insurance Fraud Prevention Act (IFPA), N.J.S.A. 17:33A-1 to -30, has a right to trial by jury.

In December 2008, plaintiffs Allstate New Jersey Insurance Company and affiliated companies filed a 604-
paragraph complaint alleging that sixty-three defendants violated the IFPA. The complaint alleges that defendants
engaged in a “broad, multi-faceted scheme to defraud” plaintiffs of $8.14 million in personal injury protection
benefits under the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -35. Plaintiffs sought
various forms of relief: payment of compensatory damages, treble damages, and attorneys’ fees under the IFPA; a
declaration that allegedly fraudulent benefits do not have to be paid; disgorgement of benefits paid; and constructive
trusts and equitable liens on defendants’ assets. Although plaintiffs demanded a jury trial in the complaint, they
later moved to withdraw that demand.

The trial court granted plaintiffs’ motion to withdraw their jury-trial demand and denied defendants’
request for trial by jury. The court determined that State v. Sailor, 355 N.J. Super. 315 (App. Div. 2001), was “the
controlling precedent.” In that case, the State brought an action under the IFPA against an individual defendant for
giving false information to an insurance carrier regarding an automobile accident. The State sought restitution on
the claim paid to the defendant. The Appellate Division determined that the plaintiff was not entitled to a jury trial
because the Act did not expressly provide such a right and because the remedy at issue was equitable in nature.

Defendants filed a motion for leave to appeal. The Appellate Division granted leave to appeal and affirmed
the trial court’s denial of defendants’ demand of a jury trial. Allstate N.J. Ins. Co. v. Lajara, 433 N.J. Super. 20, 44
(App. Div. 2013). The panel held that, in an insurer’s action under N.J.S.A. 17:33A-7, the IFPA contains no express
right to a jury. Id. at 38. It also declined to find an implied right from the statute’s silence. Ibid. Additionally, the
panel found that defendants did not possess a constitutional jury-trial right. Id. at 42.

The Supreme Court granted defendants’ motion for leave to appeal.

HELD: The right to a civil jury trial provided by Article I, Paragraph 9 of the New Jersey Constitution applies to
private-action claims seeking compensatory and punitive damages under the Insurance Fraud Prevention Act,
N.J.S.A. 17:33A-1 to -30.

1. The right to a jury trial was foremost in the minds of the drafters of New Jersey’s first Constitution, which
declared “that the inestimable right of trial by jury shall remain confirmed, as a part of the law of this colony,
without repeal, forever.” N.J. Const. (1776) art. XII. That bedrock principle was reaffirmed in the State’s 1844 and
1947 Constitutions, both of which proclaimed that “[t]he right of trial by jury shall remain inviolate.” N.J. Const.
(1844) art. I, § 7; N.J. Const. (1947) art. I, ¶ 9. The right of a civil jury trial is preserved in the Seventh Amendment
to the United States Constitution, U.S. Const. amend. VII, but that guarantee extends only to federal trials. Thus,
“the right to a trial by jury in New Jersey must arise under either a statute or the state constitution.” In re Envtl. Ins.
Declaratory Judgment Actions, 149 N.J. 278, 292 (1997). (pp. 11-14)

2. Neither the Seventh Amendment to the United States Constitution nor New Jersey’s constitutional counterpart
was ever intended to guarantee a right to a jury trial in all civil cases. The jury-trial right did apply to all common-
law “suits in which legal rights were to be ascertained and determined.” Curtis v. Loether, 415 U.S. 189, 193
(1974). Under New Jersey’s constitutional jurisprudence, the right to a jury trial applies to causes of action -- even
statutory causes of action -- that sound in law rather than equity. Federal courts look almost exclusively to whether

1
the remedy is legal in nature, but New Jersey courts consider not only the nature of the relief -- the remedy -- but
also the historical basis for the cause of action. The nature of the remedy, however, “remains the most persuasive
factor.” Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 589 (2013). (pp. 14-16)

3. Under the IFPA, “[a]ny insurance company damaged as the result of a violation of [the Act] may sue . . . to
recover compensatory damages, which shall include reasonable investigation expenses, costs of suit and attorneys
fees.” N.J.S.A. 17:33A-7(a). The IFPA does not set forth equitable remedies for private-party insurance actions,
but that does not preclude insurance companies from seeking equitable remedies available at common law. Like the
Consumer Fraud Act, N.J.S.A. 56:8-1 to -109 (CFA), the IFPA does not expressly confer the right to a jury trial.
The Court must determine whether the remedies in a private action under the IFPA are legal in nature and whether
the cause of action is similar to one recognized under the common law. (pp. 16-18)

4. The IFPA authorizes an insurance company to pursue compensatory and treble damages against a violator.
N.J.S.A. 17:33A-7(a), (b). Treble damages are intended to punish, and only partly to compensate, and therefore
have the classic features of punitive damages. Compensatory damages, including attorneys’ fees and costs, are
trebled if the court finds that a defendant engaged in a pattern of violating the IFPA. Because only the first third of a
treble-damages award is intended to compensate the victim for actual damages, the remaining award is clearly in the
nature of punitive damages. Monetary damages, such as compensatory and punitive damages, are a typical form of
legal relief. In contrast, equitable processes “are available only to the party who cannot have a full measure of relief
at law.” Wood v. N.J. Mfrs. Ins. Co., 206 N.J. 562, 578 (2011). By any measure, the relief available to insurance
companies in IFPA actions -- compensatory damages, treble damages, and attorneys’ fees and costs -- is legal in
nature. (pp. 18-22)

5. To succeed on an IFPA claim, an insurance company must demonstrate that: (1) the defendant “presented” a
“written or oral statement”; (2) the defendant knew that the statement contained “false or misleading information”;
and (3) the information was “material” to “a claim for payment or other benefit pursuant to an insurance policy or
the Unsatisfied Claim and Judgment Fund Law.” N.J.S.A. 17:33A-4(a)(1). The insurance company must also prove
a fourth element -- that it was “damaged as the result of a violation of [the IFPA].” N.J.S.A. 17:33A-7(a). Those
elements permit an insurer to seek money damages, and even treble damages. Attorneys’ fees, investigatory costs,
and costs of suit are, by definition, compensatory damages under the IFPA, and therefore a successful lawsuit
initiated by an insurance company will necessarily involve an award of damages. N.J.S.A. 17:33A-7(a). (pp. 22-24)

6. The Court has no reason to conclude that, in IFPA private-party actions, the Legislature intended a result
inconsistent with the demands of the State’s Constitution. When the Legislature provides for legal remedies, it can
be inferred that it “intended to authorize a jury trial.” Zorba Contractors, Inc. v. Housing Authority of Newark, 362
N.J. Super. 124, 138 (App. Div. 2003). The right to a jury trial is implied in the IFPA, just as it is in the CFA. The
right to a jury trial under Article I, Paragraph 9 of the New Jersey Constitution is triggered because the IFPA
provides legal relief in the form of compensatory and punitive damages and because an IFPA claim is comparable to
common-law fraud. (pp. 24-29)

7. The availability of common-law equitable remedies, in addition to legal remedies, cannot extinguish the right to a
jury trial. If the jury finds that the insurance companies are entitled to legal remedies because of violations of the
IFPA, the resolution of the equitable remedies-- a declaration that fraudulent benefits do not have to be paid,
disgorgement of benefits paid, constructive trusts and equitable liens on defendants’ assets -- will be guided
accordingly. Because the private-party legal claims predominate, the Court need not address Sailor, supra, 355 N.J.
Super. 315. In this private-party IFPA action, the right to a jury trial is compelled by Article I, Paragraph 9 of the
New Jersey Constitution. Also, the right to a jury trial is implied in the IFPA by the Legislature’s choice of legal
remedies and by the similarities between an IFPA action and common-law fraud. (pp. 29-31)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for proceedings consistent with the Court’s opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE FERNANDEZ-VINA
did not participate.

2
 SUPREME COURT OF NEW JERSEY
A-70 September Term 2013
073511

ALLSTATE NEW JERSEY INSURANCE
COMPANY, ALLSTATE INSURANCE
COMPANY, ALLSTATE INDEMNITY
COMPANY, ALLSTATE PROPERTY
AND CASUALTY INSURANCE
COMPANY, ALLSTATE NEW JERSEY
PROPERTY AND CASUALTY
INSURANCE COMPANY AND
ENCOMPASS INSURANCE, f/k/a
CONTINENTAL INSURANCE
COMPANY, and COMMERCIAL
INSURANCE COMPANY OF NEWARK,
NJ,

Plaintiffs-Respondents,

v.

GREGORIO LAJARA; PEDRO
GONZALEZ; MILEYDIS T. DIAZ
a/k/a MILLY DIAZ; AWILDA D.
RODRIGUEZ a/k/a AWILDA D.
GONZALEZ; KENNETH J. VIAFORA;
JOSE ORLANDO HERNANDEZ;
FRANCISCA HERNANDEZ;
FRANCISCO CABA; AQUALINA
RAMOS; ASHRAF Y. AZIR;
MUHAMMAD A. SHAMSHAIR;
MICHAEL C. GOLOWSKI; ELVIA
BEDOYA; NYDIA MARTINEZ;
NEREDA ZUNIGA; ALEXANDRA
GALLEGOS; BIBARS KAGHDOU,
D.C.; STEPHEN LOMANTO, D.C.;
DAVID STEPHENS, D.C.; THOMAS
J. BONACUSO, D.C., MICHAEL
CARLESIMO, D.C.; BRYAN
SIEGEL, D.C.; KEITH
LEWANDOWSKI, D.C.; WEI JU;
LUCY LIU; JIANMIN LI, a/k/a
JIAN MIN LI; SHAN S.
NAGENDRA, M.D.; ALEKSANDR
LEVIN, M.D.; MANOJ D.

1
PATHARKAR, M.D.; ALFRED REZK
TAWADROUS, M.D.; HOWARD
KESSLER, M.D.; NATALIO
DAMIEN, M.D.; DAVID WALKER,
ESQ.; MEDICO MANAGEMENT CO.,
INC.; UNION COLLECTIONS, LLC;
PLAINFIELD MEDICAL
MANAGEMENT, INC.; SPINAL
ADJUSTMENT CENTER, P.C. f/k/a
SPINAL ADJUSTMENT CENTER,
INC.; RAHWAY SPINAL INJURY
P.C. f/k/a RAHWAY SPINAL
CENTER CORP.; ADVANCED SPINAL
CARE, P.C.; MILLENNIUM TOTAL
HEALTH, P.C.; ALEVE
CHIROPRACTIC, P.C.; IN-LINE
CHIROPRACTIC, P.C.; BAYVIEW
HEALTH, P.C.; a/k/a BAYVIEW
HEALTH SERVICE, P.C.; BOUND
BROOK CHIROPRACTIC, P.C.; NEW
WAVE CHIROPRACTIC, P.C.;
ABSOLUTE CHIROPRACTIC, P.C.;
BACK PAIN P.C.; AM PAIN CARE,
P.C.; ACUPUNCTURE ACADEMY
P.C.; TCM ACUPUNCTURE P.C.;
AMERICAN ACUPUNCTURE ACADEMY,
P.C.; CONVERY MEDICAL GROUP,
P.C.; RARITAN PAIN MANAGEMENT
AND REHAB CENTER, P.C.;
ASBURY MEDICAL AND
REHABILITATION P.C.; PAIN
MANAGEMENT ASSOCIATES OF
CENTRAL JERSEY, P.A.; BEST
HEALTH MEDICAL, P.C.; PERTH
AMBOY HEALTH CARE, LLC d/b/a
“PERTH AMBOY DIAGNOSTIC
IMAGING”; LIBERTY SUPPLIES,
L.L.C.; K-MED SERVICES, INC.;
PRESTIGE MEDICAL SUPPLIES,
LLC; THERAPEUTIC DEVICES,
INC.,

Defendants,

and

2
A.P. DIAGNOSTIC IMAGING, INC.
and DR. HARSHAD PATEL,

Defendants-Appellants.

Argued January 5, 2015 – Decided July 16, 2015

On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 433
N.J. Super. 20 (App. Div. 2013).

Carl A. Salisbury argued the cause for
appellants (Kilpatrick Townsend & Stockton,
attorneys).

Thomas O. Mulvihill argued the cause for
respondents (Pringle Quinn Anzano,
attorneys).

JUSTICE ALBIN delivered the opinion of the Court.

In this appeal, we must decide whether a civil defendant

sued by an insurance company for violating the Insurance Fraud

Prevention Act (IFPA), N.J.S.A. 17:33A-1 to -30, has a right to

trial by jury. The trial court determined that, in an action

arising under the IFPA, neither the statutory scheme nor the New

Jersey Constitution grants a civil defendant the right to a jury

trial. The Appellate Division affirmed. Allstate N.J. Ins. Co.

v. Lajara, 433 N.J. Super. 20, 44 (App. Div. 2013).

We now reverse. The right to a civil jury trial is one of

the oldest and most fundamental of rights. It predates the

founding of our Republic, is enshrined in the Federal Bill of

Rights, and is part of the fabric of all three of New Jersey’s

Constitutions. A jury trial is self-government at work in our

3
constitutional system, and a verdict rendered by one’s peers is

the ultimate validation in a democratic society.

In determining whether the jury-trial right applies to a

statutory cause of action, we assess whether the grant of a jury

trial is consistent with our common-law tradition. An IFPA

claim meets that standard because compensatory and punitive

damages are legal -- not equitable -- in nature and because the

elements necessary to prove an IFPA claim are similar to common-

law fraud.

By this measure, we conclude that the right to a civil jury

trial provided by Article I, Paragraph 9 of the New Jersey

Constitution applies to private-action claims seeking

compensatory and punitive damages under the IFPA. We also

presume that the Legislature, in passing the IFPA, intended the

statutory scheme to conform to the Constitution. We therefore

remand to the trial court to allow defendants in this case to

exercise their right to a jury trial.

I.

A.

In December 2008, plaintiffs Allstate New Jersey Insurance

Company and affiliated companies, Encompass Insurance, and

Commercial Insurance Company of Newark, New Jersey, filed a 604-

paragraph complaint alleging that sixty-three defendants

4
violated the IFPA.1 The sixty-three defendants include

physicians and chiropractors; medical, imaging, and pain-

management practices; medical equipment and billing companies;

employees, owners, and shareholders of those practices and

companies; and an attorney and unlicensed individuals.

The complaint alleges that defendants engaged in a “broad,

multi-faceted scheme to defraud” plaintiffs of $8.14 million in

personal injury protection benefits under the New Jersey

Automobile Reparation Reform Act, N.J.S.A. 39:6A-1 to -35.

According to the complaint, defendants played different roles

and engaged in singular and multiple fraudulent acts in this

far-reaching scheme. Unlicensed defendants provided “purported

healthcare services” through companies that concealed their true

status. Defendants provided unnecessary care and prescribed

unnecessary medical equipment, engaged in fraudulent testing of

patients, misrepresented test results and patients’ symptoms,

and unlawfully split fees and concealed prohibited self-

referrals -- all for the purpose of wrongly securing or

enhancing recoveries for claimants or price gouging. The

complaint also contends that some defendants paid fees to

1 Also included as plaintiffs are Allstate Insurance Company,
Allstate Indemnity Company, Allstate Property and Casualty
Insurance Company, and Allstate New Jersey Property and Casualty
Insurance Company.

5
individuals who staged accidents, created fraudulent medical

records and bills, and recruited persons involved in accidents

who suffered either minor or no injuries.

Plaintiffs sought various forms of relief: payment of

compensatory damages, treble damages, and attorneys’ fees under

the IFPA; a declaration that allegedly fraudulent benefits do

not have to be paid; disgorgement of benefits paid; and

constructive trusts and equitable liens on defendants’ assets.

Although plaintiffs demanded a jury trial in the complaint,

they later moved to withdraw that demand. That motion was

opposed by defendants A.P. Diagnostic Imaging, Inc. and Dr.

Harshad Patel, who are parties to this appeal, as well as by

other defendants.2

B.

The trial court granted plaintiffs’ motion to withdraw

their jury-trial demand and denied defendants’ request for trial

by jury. The court determined that State v. Sailor, 355 N.J.

Super. 315 (App. Div. 2001), was “the controlling precedent.”

2The Commissioner of Banking and Insurance, who had earlier
intervened in the suit, moved to strike the jury demand as it
related to the Commissioner’s claims. See N.J.S.A. 17:33A-7(d)
(authorizing Commissioner to join in insurance company’s private
action, in order to recover civil penalties authorized by
N.J.S.A. 17:33A-5). No party contends that there is a right to
a jury trial on the Commissioner’s claims. See State v. Sailor,
355 N.J. Super. 315, 322 (App. Div. 2001). The Commissioner is
not a party to this appeal.

6
In that case, the State brought an action under the IFPA against

an individual defendant for giving false information to an

insurance carrier regarding an automobile accident. Id. at 318-

19. The State sought restitution on the claim paid to the

defendant. Id. at 318. The Appellate Division determined that

the plaintiff was not entitled to a jury trial because the Act

did not expressly provide such a right and because the remedy at

issue was equitable in nature. Id. at 322-23. The trial court

ruled that “Sailor makes clear that the issue turns on the fact

that the remedies available under the [IFPA] are in the form of

restitution, an equitable form of relief,” and therefore at

common law plaintiffs would not have been entitled to a jury

trial.

Defendants filed a motion for leave to appeal.

C.

The Appellate Division granted leave to appeal and

affirmed the trial court’s denial of defendants’ demand of a

jury trial. Allstate, supra, 433 N.J. Super. at 27, 44. The

panel held that, in an insurer’s action under N.J.S.A. 17:33A-7,

the IFPA contains no express right to a jury. Id. at 38. It

also declined to find an implied right from the statute’s

silence. Ibid.

Additionally, the panel found that defendants did not

possess a constitutional jury-trial right. Id. at 42. The

7
panel acknowledged that, “‘[g]enerally, the New Jersey

Constitution protects the right of trial by jury in legal, but

not equitable, actions.’” Id. at 41 (quoting Ins. Co. of N. Am.

v. Anthony Amadei Sand & Gravel, Inc., 162 N.J. 168, 176

(1999)). However, it determined that the insurers’ claims under

the IFPA more closely resemble an equitable action for which

there is no jury-trial right. The panel noted that “[t]he

remedy sought ‘remains the most persuasive factor.’” Ibid.

(quoting Jersey Cent. Power & Light Co. v. Melcar Util. Co.

(JCP&L), 212 N.J. 576, 589 (2013)). With that in mind, the

panel maintained that the monetary relief “denominated as

compensatory damages” under N.J.S.A. 17:33A-7(a) “is in the

nature of restitution,” which is typically an equitable remedy.

Id. at 43. Moreover, based on a historical view of the common

law, the panel concluded that a private-party action under the

IFPA “is significantly different from legal fraud” and “is more

akin to equitable fraud, to which no jury trial right attaches.”

Ibid. Accordingly, the panel “discern[ed] no constitutional

right to a trial by jury for private claims under the [IFPA].”

Id. at 44.

This Court granted defendants’ motion for leave to appeal.

II.

A.

Defendants, Dr. Harshad Patel and A.P. Diagnostic Imaging,

8
Inc., contend that the Appellate Division erred in holding that

a defendant in a private action under the IFPA has no right to a

jury trial. Defendants point to Zorba Contractors, Inc. v.

Housing Authority of Newark, 362 N.J. Super. 124 (App. Div.

2003), in which the Appellate Division found an implied

statutory right to a jury trial under the Consumer Fraud Act

(CFA), N.J.S.A. 56:8-1 to -109. Defendants maintain that the

elements and remedies (compensatory damages, treble damages, and

attorneys’ fees) in a CFA claim are nearly identical to those in

an IFPA claim. They argue that an IFPA claim is more akin to

common-law fraud than equitable fraud. They emphasize that in

Zorba, supra, 362 N.J. Super. at 138, the Appellate Division

classified the CFA remedies as the “hallmark of a legal action.”

Defendants further stress that in JCP&L, supra, 212 N.J. 576, we

adopted Zorba’s reasoning for determining when a jury trial is

mandated.

B.

In contrast, plaintiffs argue that the remedies available

under the IFPA are equitable in nature and, accordingly, there

is no right to a jury trial under the IFPA. They assert that

the differences between the IFPA and the CFA make Zorba’s

analysis inapplicable. Plaintiffs submit that “damages are not

an element of a cause of action under the IFPA” and that “the

Legislature specifically described the [IFPA’s] damages” as a

9
form of restitution, thus signaling that their claim sounds in

equity. They highlight that the wording of the IFPA states that

“the court” -- not a jury -- makes the fact-finding on the award

of treble damages. Additionally, plaintiffs reject the idea

that the prior use of jury trials in IFPA cases suggests an

implied right to a jury trial. According to plaintiffs, the

“entire history of the IFPA” suggests that the statute’s

drafters wanted to avoid the “delays and inefficiencies” that

come with jury trials in combatting insurance fraud. In

addition, plaintiffs posit that the complaint made by the State,

as an intervenor in the IFPA action, must be decided by the

court and therefore combining all claims in a bench trial “will

result in numerous procedural efficiencies.” Finally,

plaintiffs assert that “a right to a jury trial is not

constitutionally required because the cause of action available

under the IFPA is distinctive from common law fraud.”

III.

Our task is to determine whether the right to a jury trial

in a private action brought under the IFPA is implicit in the

statutory scheme or, alternatively, is mandated by Article I,

Paragraph 9 of the New Jersey Constitution. N.J. Const. art. I,

¶ 9 (“The right of trial by jury shall remain inviolate[.]”).

In interpreting a statute or the Constitution, our review is de

novo. Farmers Mut. Fire Ins. Co. of Salem v. N.J. Prop.-Liab.

10
Ins. Guar. Ass’n, 215 N.J. 522, 535 (2013). As such, we owe no

deference to the interpretive conclusions of the trial court or

Appellate Division. Murray v. Plainfield Rescue Squad, 210 N.J.

581, 584 (2012).

IV.

The issue before us is whether defendants in a private

action brought under the IFPA have a right to trial by jury.

Resolving that issue requires an understanding of the historical

development and importance of the jury-trial right in our

constitutional scheme.

A.

The right to a jury trial is deeply rooted in the English

common law and traces its origins as far back as the Magna

Carta. See Duncan v. Louisiana, 391 U.S. 145, 151, 88 S. Ct.

1444, 1448, 20 L. Ed. 2d 491, 497 (1968). The common-law

tradition of trial by jury was carried over to the American

colonies and, in time, took the form of a fundamental right.

Lyn-Anna Props. v. Harborview Dev. Corp., 145 N.J. 313, 318-19

(1996). In the Seventeenth Century, the provinces of West and

East Jersey codified the jury-trial right in two separate

enactments, one stating that “the tryals of all causes, civil

and criminal, shall be heard and decided by the virdict or

judgment of twelve honest men of the neighbourhood,” The

Concessions and Agreements of the Proprietors, Freeholders and

11
Inhabitants of the Province of West New-Jersey, in America,

Chap. XXII (1676), and the other stating that “all trials shall

be by the verdict of twelve men,” East Jersey House of

Representatives’ 1699 Declaration of Rights and Privileges

(1699). In New Jersey, as in the other colonies, the right to

trial by jury retained its hold in the years preceding the

American Revolution. In its 1774 Declaration of Rights, the

first Continental Congress proclaimed, “‘the respective colonies

[were] entitled to the common law of England, and more

especially to the great and inestimable privilege of being tried

by their peers.’” Parklane Hosiery Co. v. Shore, 439 U.S. 322,

340 n.3, 99 S. Ct. 645, 656 n.3, 58 L. Ed. 2d 552, 568 n.3

(1979) (Rehnquist, J., dissenting) (quoting 1 Journals of the

Continental Congress 69 (1904 ed.)).

One of the precipitating causes of the American Revolution

was the British Parliament’s passage of Acts that extended the

jurisdiction of the admiralty courts “beyond their antient

limits thereby depriving [the colonists] of the inestimable

right of trial by jury” and thus subjecting the colonists “to

the arbitrary decision of a single and dependent judge.” Reid

v. Covert, 354 U.S. 1, 29 n.51, 77 S. Ct. 1222, 1237 n.51, 1 L.

Ed. 2d 1148, 1170 n.51 (1957) (quoting Thomas Jefferson, 2

Journals of the Continental Congress 132 (Ford ed.)). Indeed,

one of the specific grievances listed in the Declaration of

12
Independence was that the Crown had deprived the colonists “in

many cases, of the benefits of Trial by Jury.” The Declaration

of Independence para. 3 (U.S. 1776).

The right to trial by jury was foremost in the minds of the

drafters of New Jersey’s first Constitution. Ratified on July

2, 1776, just two days before the Declaration of Independence,

the New Jersey Constitution declared “that the inestimable right

of trial by jury shall remain confirmed, as a part of the law of

this colony, without repeal, forever.” N.J. Const. (1776) art.

XII; see Wood v. N.J. Mfrs. Ins. Co., 206 N.J. 562, 574 (2011).

That bedrock principle was reaffirmed in our 1844 and 1947

Constitutions, both of which proclaimed that “[t]he right of

trial by jury shall remain inviolate.” N.J. Const. (1844) art.

I, § 7; N.J. Const. (1947) art. I, ¶ 9.

The right of a civil jury trial is preserved in our

national charter as the Seventh Amendment to the United States

Constitution.3 U.S. Const. amend. VII. The Seventh Amendment’s

“guarantee of a jury trial in civil cases” extends only to

3 The Seventh Amendment provides:

In Suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and
no fact tried by a jury, shall be otherwise
re-examined in any Court of the United States,
than according to the rules of the common law.

[U.S. Const. amend. VII.]
13
federal trials because the Seventh Amendment has not been made

applicable to the States through the Fourteenth Amendment’s Due

Process Clause. See In re Application of LiVolsi, 85 N.J. 576,

587 n.7 (1981). Thus, “the right to a trial by jury in New

Jersey must arise under either a statute or the state

constitution.” In re Envtl. Ins. Declaratory Judgment Actions,

149 N.J. 278, 292 (1997).

B.

Neither the Seventh Amendment nor New Jersey’s

constitutional counterpart was ever intended to guarantee a

right to a jury trial in all civil cases. Thus, “the thrust of

the [Seventh] Amendment was to preserve the right to jury trial

as it existed in 1791” -- the time of the Amendment’s

ratification. Curtis v. Loether, 415 U.S. 189, 193-94, 94 S.

Ct. 1005, 1007, 39 L. Ed. 2d 260, 265 (1974). At that time, the

right to a jury trial did not extend to matters falling within

the jurisdiction of the admiralty courts or equity courts,

“where equitable rights alone were recognized, and equitable

remedies were administered.” Id. at 193, 94 S. Ct. at 1008, 39

L. Ed. 2d at 265-66 (internal quotation marks omitted). The

jury-trial right did apply to all common-law “suits in which

legal rights were to be ascertained and determined.” Ibid.

(internal quotation marks omitted). Not surprisingly, federal

and New Jersey jurisprudence are in agreement on this point.

14
Lyn-Anna Props., supra, 145 N.J. at 318-19. The historical

annals do not suggest that the drafters of the 1776 New Jersey

Constitution and the 1791 Federal Bill of Rights had different

conceptions of the scope of the right to a civil jury trial.

The United States Supreme Court has given an expansive

interpretation of the Seventh Amendment, finding that the right

to a jury trial extends “beyond the common-law forms of action

recognized” at the time of the Constitution’s ratification to

new statutory causes of action, provided those statutes

“create[] legal rights and remedies, enforceable in an action

for damages in the ordinary courts of law.” Curtis, supra, 415

U.S. at 193-94, 94 S. Ct. at 1007-08, 39 L. Ed. 2d at 265-66.

C.

Under New Jersey’s constitutional jurisprudence, the right

to a jury trial applies to causes of action -- even statutory

causes of action -- that sound in law rather than equity.

JCP&L, supra, 212 N.J. at 589. The federal courts look almost

exclusively to whether the remedy is legal in nature in

determining whether a party has a right to a jury. Curtis,

supra, 415 U.S. at 197, 94 S. Ct. at 1010, 39 L. Ed. 2d at 268

(stating that in Title VII cases compensatory and punitive

damages constitute legal, not equitable, relief).

New Jersey courts have taken a slightly different approach,

considering not only the nature of the relief -- the remedy --

15
but also the historical basis for the cause of action. JCP&L,

supra, 212 N.J. at 589; Wood, supra, 206 N.J. at 575. This

second factor examines whether the cause of action resembles one

that existed in common law. See JCP&L, supra, 212 N.J. at 593-

94; Zorba, supra, 362 N.J. Super. at 139-40. Nevertheless, the

nature of the remedy “‘remains the most persuasive factor.’”

JCP&L, supra, 212 N.J. at 589 (quoting Weinisch v. Sawyer, 123

N.J. 333, 344 (1991)). The weight given to the remedy makes it

unlikely that our courts and federal courts will diverge in the

types of cases in which a jury trial would be available.

V.

A.

The IFPA was enacted to “confront aggressively the problem

of insurance fraud.” N.J.S.A. 17:33A-2. In pursuit of that

goal, the “IFPA interdicts a broad range of fraudulent conduct.”

Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 172 (2006).

The IFPA provides, in relevant part, that a “person or

practitioner” violates the Act when he

(1) [p]resents or causes to be presented any
written or oral statement as part of, or in
support of or opposition to, a claim for
payment or other benefit pursuant to an
insurance policy . . . knowing that the
statement contains any false or misleading
information concerning any fact or thing
material to the claim; or

(2) [p]repares or makes any written or oral
statement that is intended to be presented to

16
 any insurance company, . . . in connection
with, or in support of or opposition to any
claim for payment or other benefit pursuant to
an insurance policy . . . knowing that the
statement contains any false or misleading
information concerning any fact or thing
material to the claim; or

(3) [c]onceals or knowingly fails to disclose
the occurrence of an event which affects any
person’s initial or continued right or
entitlement to (a) any insurance benefit or
payment or (b) the amount of any benefit or
payment to which the person is entitled[.]

[N.J.S.A. 17:33A-4(a)(1), (2), (3).]

The IFPA authorizes two separate causes of action to

enforce the statutory scheme -- one a State action brought by

the Commissioner of Banking and Insurance, N.J.S.A. 17:33A-5,4

and the other a private civil action brought by insurers

“damaged as the result of a violation of any provision of [the

IFPA],” N.J.S.A. 17:33A-7. The right to a jury trial in a

private civil action is the only issue in this case.

Under the IFPA, “[a]ny insurance company damaged as the

result of a violation of [the Act] may sue . . . to recover

compensatory damages, which shall include reasonable

4 The IFPA permits the Commissioner to bring a civil action
seeking monetary penalties, ranging from “not more than $5,000
for the first violation, $10,000 for the second violation and
$15,000 for each subsequent violation”; “restitution to any
insurance company or other person who has suffered a loss as a
result of a[n] [IFPA] violation”; and attorneys’ fees and costs.
N.J.S.A. 17:33A-5.

17
investigation expenses, costs of suit and attorneys fees.”

N.J.S.A. 17:33A-7(a). Moreover, an insurance company “shall

recover treble damages if the court determines that the

defendant has engaged in a pattern of violating [the IFPA].”

N.J.S.A. 17:33A-7(b). The IFPA does not set forth equitable

remedies for private-party insurance actions. That, however,

does not preclude insurance companies from seeking equitable

remedies available at common law. See Brenner v. Berkowitz, 134

N.J. 488, 516 (1993) (stating that “courts are not limited to

the statutory remedies, but have a wide array of equitable

remedies available to them”).

Like the Consumer Fraud Act, N.J.S.A. 56:8-1 to -109, the

IFPA does not expressly confer the right to a jury trial. The

absence of express language is just the start of the analysis.

Because we presume that the Legislature intended to act in

conformity with the Constitution, the statutory and

constitutional analysis is closely aligned. We must determine

whether the remedies in a private action under the IFPA are

legal in nature and whether the cause of action is similar to

one recognized under the common law.

B.

We begin by examining the “‘the most persuasive factor’” --

the remedy available to insurance companies. See JCP&L, supra,

212 N.J. at 589 (quoting Weinisch, supra, 123 N.J. at 344). The

18
IFPA authorizes an insurance company to pursue compensatory and

treble damages against a violator. N.J.S.A. 17:33A-7(a), (b).

Under the IFPA, “compensatory damages” include not only actual

damages, but also “reasonable investigation expenses, costs of

suit and attorneys fees.” N.J.S.A. 17:33A-7(a). Treble damages

are intended to punish, and only partly to compensate, and

therefore have the classic features of punitive damages.

Liberty Mut., supra, 186 N.J. at 185 (noting that purpose of

treble damages under Consumer Fraud Act is “to punish the

wrongdoer” (internal quotation marks omitted)). Under the IFPA,

compensatory damages, including attorneys’ fees and costs, are

trebled “if the court determines that the defendant has engaged

in a pattern of violating th[e] [A]ct.” N.J.S.A. 17:33A-7(a),

(b). Because only the first third of a treble-damages award is

intended to compensate the victim for actual damages, the

remaining award is clearly in the nature of punitive damages.

Wanetick v. Gateway Mitsubishi, 163 N.J. 484, 494-96 (2000)

(indicating that award of treble damages under Consumer Fraud

Act is form of punitive damages); Zorba, supra, 362 N.J. Super.

at 138 (same).

Monetary damages, such as compensatory and punitive

damages, are a typical form of legal relief -- “the traditional

form of relief offered in the courts of law.” Curtis, supra,

415 U.S. at 196-97, 94 S. Ct. at 1009-10, 39 L. Ed. 2d at 267-

19
68; see also Wood, supra, 206 N.J. at 578 (characterizing claim

for “money damages” as “invok[ing] solely legal and not

equitable relief”); Zorba, supra, 362 N.J. Super. at 138 (“[T]he

forms of relief specifically authorized by N.J.S.A. 56:8-19 [of

the Consumer Fraud Act] are monetary -- compensatory damages,

trebling of those damages and attorneys fees -- which is a

hallmark of a legal action.”).

In contrast, equitable processes “‘are available only to

the party who cannot have a full measure of relief at law.’”

Wood, supra, 206 N.J. at 578 (quoting Bolte v. Rainville, 138

N.J. Eq. 508, 512 (E. & A. 1946)). “Equitable remedies ‘are

distinguished for their flexibility, their unlimited variety,

their adaptability to circumstances . . . . [T]he court of

equity has the power of devising its remedy and shaping it so as

to fit the changing circumstances of every case and the complex

relations of all the parties.’” US Bank Nat’l Ass’n v.

Guillaume, 209 N.J. 449, 476 (2012) (quoting Sears, Roebuck &

Co. v. Camp, 124 N.J. Eq. 403, 411-12 (E. & A. 1938)). A few

examples of equitable actions are specific performance of a

contractual obligation, partition, rescission of a contract,

labor-strike injunctions, quiet-title matters, declarations of

incapacity, and injunctive restraints of a nuisance. See

generally William A. Dreier & Paul A. Rowe, Guidebook to

Chancery Practice in New Jersey (8th ed. 2012).

20
 By any measure, the relief available to insurance companies

in IFPA actions -- compensatory damages, treble damages, and

attorneys’ fees and costs -- is legal in nature.

C.

In determining the right to a jury trial, the other prong

of our analysis is whether the statutory cause of action

authorized by the IFPA is comparable to an action known at

common law. See JCP&L, supra, 212 N.J. at 593-96 (comparing

claim filed pursuant to Underground Facility Protection Act

(UFPA), N.J.S.A. 48:2-73 to -91, to common-law negligence cause

of action); Zorba, supra, 362 N.J. Super. at 139-40 (comparing

CFA claim to common-law fraud action).

In JCP&L, supra, we found that a cause of action for

property damages arising under a provision of the Underground

Facility Protection Act, N.J.S.A. 48:2-80(d), was similar to

common-law negligence because it “impose[d] liability on the

excavator for any negligent damage to an operator’s underground

facility.” 212 N.J. at 583, 593-96 (emphasis added). We

concluded that the Act’s requirement that property-damage claims

of less than $25,000 be submitted for mandatory, binding

arbitration to the Office of Dispute Settlement within the

Office of the Public Defender violated New Jersey’s

constitutional right to a jury trial. Id. at 583-84, 600. We

reached that conclusion because the statutory cause of action

21
was based on “principles of common-law negligence” and provided

for monetary damages. Id. at 593-94, 596. We thus held that

“[t]he Legislature was not at liberty to ignore the right to a

civil jury trial for property damages when enacting the

[Underground Facility Protection Act].” Id. at 596.

In JCP&L, supra, 212 N.J. at 592-93, we cited favorably to

Zorba, supra, 362 N.J. Super. at 128-30, in which the Appellate

Division held that private-party claimants have a right to a

jury trial when seeking damages under the CFA, N.J.S.A. 56:8-19.

In Zorba, supra, the Appellate Division concluded that, “even

though the Legislature did not specifically refer to the right

to a jury trial,” that right was implied in private actions

under the CFA because the relief authorized was “legal in

nature.” 362 N.J. Super. at 138-39. That conclusion was

buttressed “by the close relationship between the private cause

of action [under the CFA] and common-law fraud.” Id. at 139.

Significantly, we have observed that “[t]he closest statutory

analogue to [the] IFPA in New Jersey is the Consumer Fraud Act.”

Liberty Mut., supra, 186 N.J. at 176.

VI.

A.

A private-party action brought under the IFPA resembles a

cause of action for common-law fraud. The elements of common-

law fraud are “(1) a material misrepresentation of a presently

22
existing or past fact; (2) knowledge or belief by the defendant

of its falsity; (3) an intention that the other person rely on

it; (4) reasonable reliance thereon by the other person; and (5)

resulting damages.” Banco Popular N. Am. v. Gandi, 184 N.J.

161, 172-73 (2005) (internal quotation marks omitted).

To succeed on an IFPA claim, an insurance company must

demonstrate that: (1) the defendant “presented” a “written or

oral statement”; (2) the defendant knew that the statement

contained “false or misleading information”; and (3) the

information was “material” to “a claim for payment or other

benefit pursuant to an insurance policy or the Unsatisfied Claim

and Judgment Fund Law.” N.J.S.A. 17:33A-4(a)(1). The insurance

company must also prove a fourth element -- that it was “damaged

as the result of a violation of [the IFPA].” N.J.S.A. 17:33A-

7(a). The presence of those elements permits an insurer to seek

money damages, and even treble damages if “the defendant has

engaged in a pattern of violating [the IFPA].” N.J.S.A. 17:33A-

7(a), (b). Notably, attorneys’ fees, investigatory costs, and

costs of suit are, by definition, compensatory damages under the

IFPA, and therefore a successful lawsuit initiated by an

insurance company will necessarily involve an award of damages.

N.J.S.A. 17:33A-7(a).

The only element of a claim for common-law fraud absent

from an IFPA claim is reliance by the plaintiff on the false

23
statement. Although an IFPA claim does not precisely match all

of the elements of common-law fraud, neither does it match all

of the elements of equitable fraud. Equitable fraud does not

require proof that a defendant knew of the falsity of a

statement, Jewish Ctr. of Sussex Cnty. v. Whale, 86 N.J. 619,

624-25 (1981) -- an element that must be established in a

private-action claim under the IFPA.5

Perfect alignment between the elements of an IFPA claim and

common-law fraud is not necessary to trigger the right to a jury

trial. As the Appellate Division pointed out in Zorba, supra:

a “noteworthy difference between the [Consumer Fraud Act and

common-law fraud] causes of action is that ‘common law fraud

requires proof of reliance while consumer fraud requires only

proof of a causal nexus between the concealment of the material

fact and the loss.’” 362 N.J. Super. at 139 (quoting Varacallo

v. Mass. Mut. Life Ins. Co., 332 N.J. Super. 31, 43 (App. Div.

2000)). Nevertheless, a jury trial is required in a consumer-

fraud case despite the lack of complete symmetry between a CFA

claim and a common-law fraud claim.

B.

5 In a claim of equitable fraud, a plaintiff must only prove:
“(1) a material misrepresentation of a presently existing or
past fact; (2) the maker’s intent that the other party rely on
it; and (3) detrimental reliance by the other party.” First Am.
Title Ins. Co. v. Lawson, 177 N.J. 125, 136-37 (2003) (internal
quotation marks omitted).
24
 The historical record of the early Republic suggests that

those who secured the right to a jury trial in New Jersey’s 1776

Constitution -- as well as this State’s two subsequent

Constitutions -- did not intend for that right to be given a

crabbed interpretation. New Jersey’s 1776 Constitution was

drafted at a time when Acts passed by the British Parliament

depriving colonists of their time-honored jury-trial rights were

of recent memory. The declaration in that first Constitution

that “the inestimable right to trial by jury shall remain

confirmed . . . without repeal, forever” was a promise to the

people and a message to lawmakers. The State’s subsequent

Constitutions have reinforced that original declaration.

The plaintiff insurance companies claim that the drafters

of the IFPA wanted to avoid the “delays and inefficiencies” of

jury trials. To be sure, other means of trying cases are more

expeditious and efficient than a jury trial. But those who gave

us the guarantee of trial by jury had their eye on a higher

value -- the validation that comes from a judgment of one’s

peers. We reject the insurance companies’ argument that a jury-

trial right is not implied in a private-party IFPA action.

We presume that the Legislature is aware that New Jersey’s

jury-trial right attaches to statutory actions that confer legal

remedies and resemble actions in common law. See Zorba, supra,

362 N.J. Super. at 138-39. In other words, we will presume, as

25
we must, that the Legislature intended to conform to the

Constitution. See Gallenthin Realty Dev., Inc. v. Borough of

Paulsboro, 191 N.J. 344, 359 (2007) (noting presumption that

“Legislature acted with existing constitutional law in mind and

intended the statute to function in a constitutional manner”

(internal quotation marks omitted)).

We have no reason to conclude that, in IFPA private-party

actions, the Legislature intended a result inconsistent with the

demands of our State Constitution. When the Legislature

provides for legal remedies, it can be inferred that it

“intended to authorize a jury trial.” Zorba, supra, 362 N.J.

Super. at 138; see also Lorillard v. Pons, 434 U.S. 575, 583, 98

S. Ct. 866, 871, 55 L. Ed. 2d 40, 47 (1978) (“We can infer . . .

that by providing specifically for ‘legal’ relief, Congress knew

the significance of the term ‘legal,’ and intended that there

would be a jury trial . . . .”).

The Legislature clearly understands the high, preferred

place of the right of trial by jury, as is clear from its

response to our decision in Shaner v. Horizon Bancorp., 116 N.J.

433 (1989). In Shaner, supra, the Court had to determine

whether, in the absence of express language granting the right

to a jury trial in a private-action case, such a right was

implied in the language of the Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -49. 116 N.J. at 446. The LAD provided for

26
compensatory and punitive damages as well as equitable relief

for a victim of discrimination. N.J.S.A. 10:5-17. The Court

found no historical corollary in the common law to a LAD claim

and ultimately concluded, based on its analysis, that neither

the statute nor the New Jersey Constitution compelled a jury

trial in private-action LAD cases. Shaner, supra, 116 N.J. at

446, 455.

Seven months after the Shaner decision, the Legislature

amended the LAD to provide the right to a jury trial in private-

party LAD actions. L. 1990, c. 12, § 2 (codified as amended at

N.J.S.A. 10:5-13). The swiftness of the Legislature’s reaction

to this Court’s decision leads to the inference that the

amendment was curative, intended to express that the Legislature

actually meant to confer a jury-trial right despite its failure

to expressly say so. See 1A Norman J. Singer & J.D. Shambie

Singer, Sutherland Statutory Construction, § 22:31, at 375 (7th

ed. 2009) (noting that when amendment is expeditiously adopted

to overturn judicial interpretation of statute, courts may

“logically conclude that a[n] amendment was adopted to make

plain what the legislation had been all along from the time of

the statute’s original enactment”).

We find that the right to a jury trial is implied in the

IFPA, just as it is in the CFA. See Zorba, supra, 362 N.J.

Super. at 138-39. In summary, the right to a jury trial under

27
Article I, Paragraph 9 of the New Jersey Constitution is

triggered because the IFPA provides legal relief in the form of

compensatory and punitive damages and because an IFPA claim is

comparable to common-law fraud.

C.

We reject Allstate’s argument that the Legislature did not

intend the jury to act as the fact-finder in an IFPA case

because N.J.S.A. 17:33A-7(b) states that the claimant “shall

recover treble damages if the court determines that the

defendant has engaged in a pattern of violati[ons].” (Emphasis

added). First, the statute does not consign to the “court” the

determination of facts for actual damages. Second, the term

“court” is not inconsistent with the jury serving as fact-

finder. See Curtis, supra, 415 U.S. at 189, 198, 94 S. Ct. at

1006, 1010, 39 L. Ed. 2d at 263, 268-69 (stating that Seventh

Amendment jury right applies to Section 812 of Civil Rights Act

of 1968, 42 U.S.C. § 3612, even though statute grants “court”

ability to “grant relief, as it deems appropriate”); Sibley v.

Fulton Dekalb Collection Serv., 677 F.2d 830, 832-33 (11th Cir.

1982) (“In this case, we likewise choose to interpret the word

‘court’ to encompass trial by both judge and jury. This

interpretation serves to avoid the serious constitutional

questions that would be raised under the seventh amendment if we

adopted a construction of the [Fair Debt Collection Practices]

28
Act that prohibited trial by jury.”); Rucker v. Wabash R.R. Co.,

418 F.2d 146, 152 (7th Cir. 1969) (“The term ‘court’ need not

always be construed as referring to the judge in the performance

of his duties. It also has an institutional meaning and may

sometimes refer to the deliberative body of jurors.”).

Thus, we cannot conclude that the Legislature intended non-

jury trials because of the singular reference to “court” in

reference to trebling damages.

D.

We do not agree with plaintiffs that the statutory legal

claims they advanced are ancillary to their equitable claims --

equitable claims that do not rise under the IFPA. The

availability of common-law equitable remedies, in addition to

legal remedies, cannot extinguish the right to a jury trial. If

the jury finds that the insurance companies are entitled to

legal remedies because of violations of the IFPA, the resolution

of the equitable remedies -- a declaration that fraudulent

benefits do not have to be paid, disgorgement of benefits paid,

constructive trusts and equitable liens on defendants’ assets --

will be guided accordingly. “When equitable claims or defenses

are lodged in what is predominantly a dispute at law, and when

the claims may be viewed separately without fear of inconsistent

determinations, the court must parse the equitable issues from

the legal issues presented to the jury.” Sun Coast Merch. Corp.

29
v. Myron Corp., 393 N.J. Super. 55, 86 (App. Div. 2007), certif.

denied, 194 N.J. 270 (2008). Here, the “ancillary equitable

issues may well be blazed by the jury’s resolution of the legal

issues.” See ibid. That is true also of the ancillary claims

filed by the Commissioner of Banking and Insurance for

violations of the IFPA regarding administrative penalties to be

imposed. See N.J.S.A. 17:33A-7(d) (“[T]he commissioner may join

in [an insurer’s] action for the purpose of seeking judgment for

the payment of a civil penalty authorized under [N.J.S.A.

17:33A-5].”). Because the private-party legal claims

predominate, we need not address Sailor, supra, 355 N.J. Super.

315, which denied the right to a jury trial for an IFPA action

brought by the State seeking administrative penalties.

Accordingly, the jury will decide those issues that fall

within its domain, and the court those issues falling within its

compass.

E.

Last, a jury trial in an IFPA action is not a recent advent

or a break from a long-accepted practice of bench trials. IFPA

claims have been tried before juries since at least 1994. See,

e.g., Liberty Mut., supra, 186 N.J. at 165-66 (determining

proper standard of proof in private action brought under IFPA on

appeal following jury trial and remanding case to Law Division,

which conducted second jury trial); Bldg. Materials Corp. of Am.

30
v. Allstate Ins. Co., 424 N.J. Super. 448, 487 (App. Div.)

(upholding jury charge given by trial court in private IFPA

claim), certif. denied, 212 N.J. 198 (2012); Harleysville Ins.

Co. v. Diamond, 359 N.J. Super. 34, 36 (Law Div. 2002)

(discussing standard of proof in jury trial proceeding under

IFPA); Thomas v. N.J. Ins. Underwriting Ass’n, 277 N.J. Super.

630, 633 (Law Div. 1994) (reviewing IFPA jury charge). The

Legislature’s acquiescence to this practice gives some

indication of its intent to allow jury trials in private-party

actions.

VII.

For the reasons expressed, in this private-party IFPA

action, the right to a jury trial is compelled by Article I,

Paragraph 9 of the New Jersey Constitution. We also find that

the right to a jury trial is implied in the IFPA by the

Legislature’s choice of legal remedies and by the similarities

between an IFPA action and common-law fraud. Accordingly, we

reverse the Appellate Division and remand to the Law Division

for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
ALBIN’s opinion. JUSTICE FERNANDEZ-VINA did not participate.

31
 SUPREME COURT OF NEW JERSEY

NO. A-70 SEPTEMBER TERM 2013

ON APPEAL FROM Appellate Division, Superior Court

ALLSTATE NEW JERSEY INSURANCE
COMPANY, ET AL.,

Plaintiffs-Respondents,

v.

GREGORIO LAJARA, ET AL.,

Defendants,

and

A.P. DIAGNOSTIC IMAGING, INC.
and DR. HARSHAD PATEL,

Defendants-Appellants.

DECIDED July 16, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA -------------------- --------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6