RAYMOND C. ELLINGTON VS. CURE AUTO INSURANCE, ETC. (L-3293-16, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2470-16T4

RAYMOND C. ELLINGTON, SUNIDA
RODRIGUEZ, GREGORIO RODRIGUEZ,
SUNIRLIZA RODRIGUEZ and
FRANKLIN CRUZ,

Plaintiffs-Respondents,

v.

CURE AUTO INSURANCE a/k/a
CITIZENS UNITED RECIPROCAL
EXCHANGE,

Defendant-Appellant.

__________________________________

Argued May 15, 2017 – Decided July 20, 2017

Before Judges Nugent, Currier and Geiger.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
3293-16.

Scott J. Tredwell argued the cause for
appellant (McCormick & Priore, P.C.,
attorneys; Mr. Tredwell and Robert J. Cahall,
of counsel and on the brief).

Alex Lyubarsky argued the cause for
respondents (Wilentz, Goldman & Spitzer,
attorneys; Randall J. Richards, of counsel;
Mr. Lyubarsky, on the brief).
 Richard J. Williams, Jr., argued the cause for
amicus curiae Insurance Council of New Jersey
and Property Casualty Insurers Association of
America (McElroy, Deutsch, Mulvaney &
Carpenter, LLP, attorneys; Mr. Williams, of
counsel; Eric Siegel, on the brief).

PER CURIAM

This is a bad faith action. Plaintiffs are the insured,

Raymond C. Ellington, and the four people he injured (the personal

injury plaintiffs) when the car he owned and operated crashed into

the rear of the sport utility vehicle they occupied. Defendant

CURE Auto Insurance a/k/a Citizens United Reciprocal Exchange

(CURE) issued the personal automobile insurance policy that

insured Ellington's automobile. The personal injury plaintiffs

sued Ellington in the underlying action. Those parties settled

the case by entering into a consent judgment for an amount in

excess of CURE's policy limits. They settled after CURE initially

failed to respond to a demand to settle the case within its policy

limits.

On leave granted, CURE appeals from a Law Division order

denying its motion to dismiss plaintiffs' complaint for failure

to state a claim upon which relief can be granted. The Law

Division judge also denied CURE's motion for reconsideration.

Applying the standards that narrowly circumscribe the scope of

appellate review, and viewing the complaint with the liberality

2 A-2470-16T4
required by those standards, we can glean from the complaint and

documents on which it is based a cause of action for bad faith.

For that reason, we affirm the Law Division orders.

I.

A.

Because we are reviewing an order denying CURE's motion to

dismiss plaintiffs' complaint, we recount the material facts

alleged in the complaint as well as the material facts contained

in the documents on which the complaint is based. Banco Popular

N. Am. v. Gandi, 184 N.J. 161, 183 (2005).

Plaintiffs' complaint alleges that on September 4, 2011,

Ellington owned a motor vehicle that he operated "in such a manner

so as to cause it to strike the rear of the [personal injury

plaintiffs'] automobile." The complaint further alleges Ellington

and his vehicle were insured under a CURE automobile liability

policy with "bodily injury liability limits of only

$25,000/$50,000."1 The policy's liability coverage provides: "We

will pay damages for 'bodily injury' . . . for which any 'insured'

becomes legally responsible because of an auto accident. . . . We

1
The policy's declaration page confirms the policy limits were
$25,000 per person, $50,000 per accident. The personal injury
plaintiffs commenced a personal injury action against Ellington
on April 26, 2013.

3 A-2470-16T4
will settle or defend, as we consider appropriate, any claim or

suit asking for these damages."

According to the bad faith complaint, on February 7, 2014,

ten months after filing the personal injury action, counsel for

the personal injury plaintiffs wrote a demand letter to Ellington's

attorney. The letter is the cornerstone of plaintiffs' bad faith

claim. It states in relevant part:

This letter will serve as confirmation of our
recent telephone conversation, wherein you
advised that at the time of the subject
accident your client, Raymond Ellington, was
insured by an automobile policy . . . which
contained policy limits of only
$25,000/$50,000. Unfortunately, in view of
the severity of the injuries suffered by the
numerous plaintiffs involved in this action,
I believe that any good-faith evaluation of
this matter will result in recognition of the
fact that those policy limits are clearly
insufficient to compensate the victims for the
injuries suffered as a result of the subject
accident. The claims of the various
plaintiffs are outlined below:

A. Sunirliza Rodriguez. Suny Rodriguez is
a 26-year-old female who suffered splenic
lacerations, left-sided rib fractures of ribs
6, 7, and 8 with resultant left pneumothorax,
and cervical and thoracic sprains and strains
which have failed to respond to trigger point
injections. In order to assist in your
evaluation of her claim, I am enclosing
herewith the following records:

. . . .

B. Sunida Rodriguez. Sunida is a 51-year-
old female who suffered significant

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orthopaedic injuries including a central disc
herniation at L4-5 with L5 nerve root
impingement and generalized disc bulging at
L3-4 and L5-S1. She was initially seen in the
emergency room at UMDNJ Medical Center with
complaints of low back pain and thereafter
. . . underwent a course of physical therapy
and thereafter injections . . ., which failed
to provide relief of her pain. Lumbar
discography was performed on December 14,
2012, which produced concordant pain at L4-5
and L5-S1. Surgical consult was obtained with
[a doctor], who recommended lumbar fusion at
L4-5. That surgery was performed on December
12, 2013, and the operative report is enclosed
herewith. We have enclosed herewith the
following records regarding the claim of
Sunida Rodriguez for your review and
evaluation:

. . . .

C. Franklin Cruz. Franklin is a 31-year-
old machine operator who suffered disc
herniations at L4-5 and L5-S1. He was
initially seen in the emergency room of UMDNJ
. . . . An MRI performed on January 6, 2012,
confirmed the presence of disc herniations at
L4-5 and L5-S1. When a conservative course
of physical therapy failed to provide relief
of his symptoms, he was referred to [a doctor]
who performed epidural injections which
provided only temporary relief of his
symptoms. With respect to Franklin, I have
enclosed herewith the following medical
records:

. . . .

D. Gregorio Rodriguez. Gregorio is a 51-
year-old machine operator who suffered a large
laceration of his scalp requiring multiple
stitches to repair, as well as significant
orthopaedic injuries including a dorsal annual
fissure at C4-5 with resultant spondylosis,

5 A-2470-16T4
 as well as a disc herniation at C5-6. He has
undergone extensive orthopaedic treatment,
including conservative therapy and
interventional pain management without relief
of his symptoms. Cervical fusion has been
recommended and is presently under
consideration. With respect to Gregorio I
have enclosed herewith the following records:

. . . .

I trust that after review of the enclosed
records, you will recognize that the combined
values of the subject claim far exceed your
client's available policy limits. Be advised
that, notwithstanding the foregoing, we are
prepared to recommend settlement for those
policy limits provided same are tendered
within 30 days of the date hereof. Following
expiration of the aforesaid time frame, we
will actively prepare this matter for trial
and will not thereafter consider settlement
within the available policy limits.

The foregoing offer is conditioned upon
your submission of satisfactory proof of the
limits of your client's insurance policy
limits, the absence of any excess policy, and
the subrogation rights of any UIM carrier
(pursuant to Longworth).

I trust that your carrier is aware of the
fiduciary obligation to its insured imposed
by Rova Farms and its progeny and that they
will move expeditiously to resolve these
claims at this time.

I await your advice with respect to the
foregoing.

The bad faith complaint continues:

7. Notwithstanding [CURE'S] awareness that
the value of the claims presented far exceeded

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 the available policy limits, [CURE] failed to
respond to the settlement offer of February
7, 2014; failed to seek an extension of time
within which to respond to said offer; and
negligently or intentionally failed to advise
Ellington that an offer of settlement within
the available policy limits had been advanced.

8. The actions of [CURE] in failing to
appropriately respond to or take advantage of
the settlement opportunities within the
available policy limits were designed to
promote the interests of [CURE] to the
detriment of its insured, [Ellington].

Plaintiffs further allege in the bad faith complaint that

CURE's actions "departed from accepted standards of claims

handling practices, constituted a breach of its contractual

obligations to Ellington and further constituted a breach of

defendant's obligation of good faith and fair dealing to its

insured, . . . Ellington."

The bad faith complaint next alleges that eleven months after

CURE failed to respond to the February 7, 2014 settlement demand,

CURE belatedly tendered its policy limits in a letter dated January

8, 2015. Counsel for the personal injury plaintiffs rejected

CURE's "belated tender of its policy limits" and counteroffered

"to settle for said policy limits together with an assignment of

Ellington's claims against" CURE for breach of its fiduciary

obligations to Ellington. CURE rejected the counteroffer in a

7 A-2470-16T4
letter dated February 2, 2015, asserting "that no settlement would

be authorized if it allowed the pursuit of claims against" CURE.

The complaint alleges that four days later, on February 6,

2015, CURE deposited its $50,000 policy limits into court "but

continued to oppose any settlement which would not also extinguish

claims against CURE for its handling of the underlying tort action

against . . . Ellington." According to the complaint, "[i]n so

acting, defendant, CURE . . . expressly elevated its interests

over those of its insured . . ., squandering the opportunity of

settlement which would have protected Ellington from the entry of

judgment against him."

The bad faith complaint next summarizes the events

culminating in the personal injury action's settlement. On April

23, 2015, the personal injury plaintiffs' claims against Ellington

were arbitrated as required by Rule 4:21A-1(a)(1). The arbitration

award for the four personal injury plaintiffs, taken together, was

$1,300,000. On June 19, 2015, during a settlement conference,

Ellington's attorney advised counsel for the personal injury

plaintiffs that "CURE had withdrawn its previous conditions placed

upon settlement and would allow Ellington's private counsel to

negotiate settlement, utilizing CURE's funds which had been paid

into [c]ourt in whatever manner best served Ellington's

interests." By then, however, the personal injury plaintiffs

8 A-2470-16T4
"were no longer willing to engage in settlement which would protect

Ellington from the entry of judgment against him."

On September 15, 2015, counsel for Ellington and the personal

injury plaintiffs "entered into a settlement agreement which

provided for prompt payment of all funds paid into [c]ourt and

required pursuit of claims against CURE for its breach of fiduciary

obligation of good faith and fair dealing in its handling of the

[personal injury action]." The bad faith complaint alleges the

settlement "resulted in the entry of judgment against Ellington

in the gross cumulative amount of $1,155,000 ($145,000 less than

the cumulative arbitration award . . .)." The judgment "was a

direct and proximate result of [CURE's] wrongful conduct and/or

bad faith in the handling of [the personal injury action]."

Plaintiffs allege in their complaint that CURE's mishandling of

the personal injury action constituted a breach of its contractual

and fiduciary obligations to its insured in failing to properly

evaluate and settle the personal injury action; constituted bad

faith; and caused its insured, Ellington, to suffer damages,

including entry of the judgment.

B.

On June 3, 2016, plaintiffs commenced this bad faith action

by filing their complaint. CURE filed a motion to dismiss the

complaint for failure to state a claim upon which relief can be

9 A-2470-16T4
granted. On October 13, 2016, the trial court issued a preliminary

opinion denying the motion. Following oral argument, the trial

court entered an order dated October 14, 2016, denying the motion.

CURE filed a motion for reconsideration, which the court denied.

This appeal followed.

II.

CURE argues that New Jersey law does not recognize a bad

faith claim in the absence of an excess verdict or an improper

disclaimer of coverage, neither of which exists here. CURE asserts

that plaintiffs are advancing a novel cause of action and that a

recognition of such action would abrogate "all insurers'

contractual right to control the defense and settlement of claims."

Lastly, CURE argues that allowing the claim to proceed would reward

an uncooperative, unresponsive insured who preemptively breached

the insurance policy.

Amicus Insurance Council of New Jersey and Property Casualty

Insurers Association of America (Insurance Council) argues that

unreasonable, unilateral, time-restricted settlement demands made

in bad faith do not support a bad faith claim against an insurance

carrier. Insurance Council also argues that if an insurer has

defended its insured and tendered its policy limits, it is entitled

to rely upon the terms of the insurance contract and cannot be

10 A-2470-16T4
held responsible to pay an excess judgment entered into voluntarily

by the insured without the consent of the insurer.

Plaintiffs respond that the trial court did not create a

novel cause of action when it denied CURE's motion. Rather, the

trial court correctly analyzed and applied controlling New Jersey

precedent. Plaintiffs assert the trial court properly recognized

that CURE has misconstrued existing precedent to avoid the merits

of their claims. Plaintiffs also argue that CURE's assertion that

the consent judgment was collusive "raises an issue that is

separate and distinct from CURE's bad faith failure to promptly

settle all claims against Ellington within the policy limits" when

the opportunity to do so presented itself. Plaintiffs urge us to

reject CURE's argument concerning Ellington's breach of the

insurance policy because CURE did not raise the arguments before

the trial court.

As to Insurance Council, plaintiffs assert Insurance Council

has raised new arguments on appeal never raised by CURE and thus

never considered by the trial court. Plaintiffs also argue that

out-of-state cases cited by Insurance Council are contrary to

existing New Jersey law.

Replying to plaintiffs' arguments, CURE claims plaintiffs'

opposition is based on the erroneous premise that non-negotiable

terms of the contingent settlement demand can be retroactively

11 A-2470-16T4
modified. CURE reiterates that the cause of action pleaded by

plaintiffs is novel. CURE insists that this appeal can be decided

in its favor under existing New Jersey law, but such a result is

also supported by the case law of other jurisdictions. CURE points

out that it has raised no coverage defenses in its merits brief,

and did not participate in the settlement between Ellington and

the personal injury plaintiffs.

III.

A.

Given the broad scope of the parties' arguments, we emphasize

the narrow scope of our review. Rule 4:6-2 states in relevant

part: "[T]he following defenses . . . may at the option of the

pleader be made by motion, with briefs: . . . (e) failure to state

a claim upon which relief can be granted." Rule 4:6-2 also states:

"If, on a motion to dismiss based on the defense numbered (e),

matters outside the pleading are presented to and not excluded by

the court, the motion shall be treated as one for summary judgment

and disposed of as provided by R[ule] 4:46, and all parties shall

be given reasonable opportunity to present all material pertinent

to such motions."

A motion to dismiss a complaint under Rule 4:6-2(e) "must be

based on the pleadings themselves." Roa v. Roa, 200 N.J. 555, 562

(2010). For purposes of the motion, the "complaint" includes the

12 A-2470-16T4
"exhibits attached to the complaint, matters of public record, and

documents that form the basis of a claim." Banco Popular, supra,

184 N.J. at 183 (quoting Lum v. Bank of Am., 361 F.3d 217, 221 n.3

(3d Cir.), cert. denied, 543 U.S. 918, 125 S. Ct. 271, 160 L. Ed.

2d 203 (2004)).

Such motions "should be granted only in rare instances and

ordinarily without prejudice." Smith v. SBC Commc'ns, Inc., 178

N.J. 265, 282 (2004). This standard "is a generous one." Green

v. Morgan Props., 215 N.J. 431, 451 (2013).

[A] reviewing court searches the complaint in
depth and with liberality to ascertain whether
the fundament of a cause of action may be
gleaned even from an obscure statement of
claim, opportunity being given to amend if
necessary. At this preliminary stage of the
litigation the Court is not concerned with the
ability of plaintiffs to prove the allegation
contained in the complaint. For purposes of
analysis plaintiffs are entitled to every
reasonable inference of fact. The examination
of a complaint's allegations of fact required
by the aforestated principles should be one
that is at once painstaking and undertaken
with a generous and hospitable approach.

[Printing Mart-Morristown v. Sharp Elecs.
Corp., 116 N.J. 739, 746 (1989) (citations
omitted).]

Nonetheless, a court must dismiss a complaint if it fails "to

articulate a legal basis entitling plaintiff to relief." Sickles

v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif.

denied, 185 N.J. 297 (2005). "[A] pleading should be dismissed

13 A-2470-16T4
if it states no basis for relief and discovery would not provide

one." Rezem Family Assoc., LP v. Borough of Millstone, 423 N.J.

Super. 103, 113 (App. Div.), certif. denied, 208 N.J. 366 (2011).

Our review of a trial court's order dismissing a complaint

under Rule 4:6-2(e) is plenary. Gonzalez v. State Apportionment

Comm'n, 428 N.J. Super. 333, 349 (App. Div. 2012), certif. denied,

213 N.J. 45 (2013). We apply the same standard as the trial judge.

Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008).

B.

In the case before us, we must determine whether we can glean

from the pleadings a cause of action against CURE for bad faith.

We thus consider the duty an insurer owes its insured. In Rova

Farms Resort v. Investors Ins. Co., 65 N.J. 474, 496 (1974), our

Supreme Court recognized a cause of action against an insurer

whose bad faith in refusing to settle a personal injury action

within its policy limits exposed its insured to a jury verdict

substantially in excess of the policy limits. The Court clearly

and unequivocally explained the insurer's duty of good faith:

We . . . hold that an insurer, having
contractually restricted the independent
negotiation power of its insured, has a
positive fiduciary duty to take the initiative
and attempt to negotiate a settlement within
the policy coverage. Any doubt as to the
existence of an opportunity to settle within
the face amount of the coverage or as to the
ability and willingness of the insured to pay

14 A-2470-16T4
 any excess required for settlement must be
resolved in favor of the insured unless the
insurer, by some affirmative evidence,
demonstrates there was not only no realistic
possibility of settlement within policy
limits, but also that the insured would not
have contributed to whatever settlement figure
above that sum might have been available.
[Young v. American Cas. Co., 416 F.2d 906, 911
(2d. Cir. 1969).]

[Ibid. (emphasis added).]

An insurer's fiduciary duty requires it "to make an honest,

intelligent and good faith evaluation of the case for settlement

purposes and to weigh the probabilities in a fair manner."

Fireman's Fund Ins. Co. v. Security Ins. Co. of Hartford, 72 N.J.

63, 69 (1976). And though liability policies generally reserve

to the insurer the right to investigate claims against the insured,

it is recognized the considerations of good
faith and fair dealing require that the
insurer make such an investigation within a
reasonable time. If the insurer delays
unreasonably in investigating and dealing with
a claim asserted against its insured, the
insured may make a good faith reasonable
settlement and then recover the settlement
amount from the insurer, despite the policy
provision conditioning recovery against the
insurer on its policy on the prior entry of a
judgment against the insured or acquiescence
by the insurer in the settlement.

[Id. at 73 (citations omitted).]

In Fireman's Fund, the Court rejected the insurer's

contention that there could be no recovery against it based on the

15 A-2470-16T4
settlement made by its insured because no judgement had been

entered and because it had not authorized the settlement. Id. at

69-70. The Court noted that "[w]hile the right to control

settlements reserved to insurers is an important and significant

provision of the policy contract, . . . it is a right which an

insurer forfeits when it violates its contractual obligation to

the insured." Id. at 71 (citations omitted). The Court also

rejected the insurer's attempt to distinguish cases holding an

insurer loses its right to control settlements in cases involving

a breach of the contractual duty to defend. The Court explained

that such distinction "ignores that there is also embodied in the

policy contract an implied covenant of good faith and fair dealing

with which the insurer must comply before seeking to rely on the

powers reserved to it by the language of the policy contract

. . . ." Id. at 72. The Court noted: "That [the insurer's]

breach was not of its expressed covenant to afford its insureds a

defense but rather of its implied covenant to exercise good faith

in considering an offer to settle for an amount in excess of its

policy limits is of no moment." Id. at 72-73.

Depending on whether an insurer's breach is that of its duty

to defend, or "its implied obligation to make a timely

investigation of the claim[,] or of its implied obligation to

exercise, in good faith and with concern for the interests of the

16 A-2470-16T4
insured, its reserved power with respect to settlements[,]"

damages are essentially the same. Id. at 78. "[T]he measure of

the insured's damages is either the amount of the judgment entered

against the insured in the negligence action or the amount paid

by the insured in making a reasonable good faith settlement of the

negligence action before trial." Ibid. As our Supreme Court

noted, "[w]here the measure of recovery is the amount paid in

settlement, the defaulting insurer receives all the protection to

which it is entitled from the requirement that the insured, in

establishing his damages, prove – as was done here – that the

settlement was made in good faith and for a reasonable amount."

Id. at 79.

C.

Considering the allegations of the complaint and the

fiduciary duties of CURE under the principles governing our narrow

scope of review, we can readily glean from the complaint a bad

faith cause of action. Construing the complaint with liberality,

it clearly alleges facts and circumstances demonstrating CURE did

not take the initiative and attempt to negotiate a settlement

within its policy coverage. To the contrary, the complaint alleges

CURE disregarded an opportunity to explore settlement within its

policy limits and then waited nearly eleven months — long after

it knew the personal injury plaintiffs would no longer accept the

17 A-2470-16T4
policy limits to settle — before following up with them or

tendering the policy limits. These allegations state a claim that

CURE "delay[ed] unreasonably in investigating and dealing with

[the] claim asserted against its insured." Id. at 73. As the

Supreme Court explained in Rova Farms, "[a]ny doubt as to the

existence of an opportunity to settle within the face amount of

the coverage . . . must be resolved in favor of the insured."

Supra, 65 N.J. at 496.

Lastly, the complaint contains sufficient allegations that

the value of the personal injury plaintiffs' collective claims

clearly exceeded the limits of CURE's automobile liability policy,

a fact known to CURE long before CURE tendered its policy limits.

We emphasize the limited nature of our holding. We have

concluded we can glean a bad faith cause of action from the

complaint; nothing more. We perceive that CURE and Insurance

Council, in advancing their arguments, have blurred the

distinction between the standards for determining, on the one

hand, whether pleadings state a cause of action upon which relief

can be granted, and, on the other hand, whether summary judgment

is appropriate.

For example, both CURE and Insurance Council attempt to

narrowly frame the issue before us as whether a bad faith claim

can be based on "a unilaterally set, [thirty-day] time frame to

18 A-2470-16T4
tender . . . $50,000 liability proceeds based on a vague request

without any meaningful discovery or opportunity to evaluate the

case." We do not so hold, and we do not view the trial court's

opinion as so holding. The scant record, confined as required to

plaintiffs' complaint and documents referenced therein, do not

support such a proposition. The record does not disclose — nor

could it be expected to disclose on a motion under Rule 4:6-2(e)

— the extent of CURE's opportunity to evaluate plaintiffs' claims,

and the extent of the information CURE had before receiving

plaintiffs' demand letter. Nor does the record disclose why CURE

waited so long to tender its policy limits. The reasons may be

perfectly legitimate, but they are unknown on this limited record.

Similarly, CURE's claims – not raised before the trial court

– that Ellington failed to comply with policy conditions are based

on information outside of the pleadings. The same is true of

Insurance Council's argument that the settlement agreement was the

product of collusion and bad faith.

Significantly, in Rova Farms, the Supreme Court noted the

rule requiring the carrier to form its judgment as though it alone

were liable for the entire risk "may be polluted by institutional

considerations which ignore the interests of the specific insured

involved." Id. at 499 (citation omitted). The Court pointed out:

19 A-2470-16T4
 These considerations may extend to a purpose
to keep future settlement costs down, to numb
the public's claim-consciousness, to create a
conservative image for the discouragement of
future claimants or to establish favorable
precedents, none of which purposes has
anything to do with the protection of the
particular insured at hand. Such efforts, it
might be hoped, would result in overall
savings to the company by discouraging the
pressing of marginal claims or by creating a
body of low-verdict cases which could be used
as a bargaining tool in settling subsequent
claims. . . . Institutional interests of this
nature might be pursued by carriers whether
or not they were liable for the entire amount
of a specific adverse verdict; yet it is
generally the insured in the particular case
who has had to bear the burden of any excess
loss stemming from such an "institutional"
decision not to settle.

[Ibid. (citation omitted).]

Whether, as CURE and Insurance Council argue, CURE was

reasonably diligent in investigating the personal injury

plaintiffs' claims and tendered their policy limits in a sufficient

manner; or whether, as plaintiffs contend, CURE violated its

fiduciary obligation by failing to timely investigate the claims

and settle within the policy limits even when it was clear the

personal injury claims exceeded those limits; are issues that

cannot be resolved on a motion made pursuant to Rule 4:6-2(e).

We add that Insurance Council's assertion the settlement was

a product of collusion and bad faith raises some interesting

issues. One interpretation of the settlement agreement is that

20 A-2470-16T4
the personal injury plaintiffs will file warrants of satisfaction

immediately upon conclusion of this bad faith action, regardless

of the outcome. That construction suggests that if plaintiffs

recover nothing under the bad faith action, the personal injury

plaintiffs will collect nothing further from Ellington.2 If that

is so, then there is a significant question as to whether Ellington

will ever have to pay a sum in excess of the policy limits.

Resolution of that issue may have a bearing on the viability of

plaintiffs' bad faith cause of action. We express no opinion as

to that issue. The trial court may decide to conduct discovery

and entertain dispositive motions on that issue before permitting

the parties to engage in other extensive discovery. We leave that

matter to the trial court's sound discretion.

We have considered CURE's and Insurance Council's remaining

arguments and determined they are without sufficient merit to

warrant further discussion. R. 2:11-3(e)(1)(E).

The trial court's order denying the motion to dismiss the

complaint for failure to state a cause of action is affirmed.

2
During oral argument, plaintiffs' counsel was unable to confirm
whether such was the case, as he did not participate in drafting
the settlement agreement.

21 A-2470-16T4