NOT FOR PUBLICATION WITHOUT THE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-2619-15T4
GEORGE M. RING and
DOROTHY A. RING,
Plaintiffs-Appellants,
v.
MEEKER SHARKEY ASSOCIATES,
LLC,
Defendant-Respondent,
and
WILLIS OF NEW JERSEY, INC.,
Defendant.
________________________________________________________________
Argued September 7, 2017 – Decided September 26, 2017
Before Judges Rothstadt and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Docket
No. L-0760-13.
Ryan Milun argued the cause for appellants
(The Killian Firm, attorneys; Mr. Milun and
Eugene Killian, Jr., on the briefs).
Alyse Berger Heilpern argued the cause for
respondent (L'Abbate, Balkan, Colavita &
Contini, LLP, attorneys; Ms. Heilpern, of
counsel and on the brief).
PER CURIAM
Plaintiffs, George M. Ring1 and his wife Dorothy A. Ring
appeal from the Law Division's February 9, 2015 order dismissing
their complaint on summary judgment entered in favor of defendant
Meeker Sharkey Associates, LLC (MSA), plaintiffs' homeowners
insurance broker. The complaint asserted claims of professional
negligence against MSA and defendant Willis, N.A.,2 plaintiffs'
flood insurance broker, based upon their alleged failure to advise
plaintiffs to secure excess flood insurance.
Judge Robert A. Fall awarded MSA summary judgment in response
to its motion asking the judge to reconsider his prior decision
denying MSA's earlier motion for that relief. Judge Fall explained
his reasons for reconsidering and granting MSA summary judgment
in a thirty-six page written decision in which he concluded that
Willis and not MSA owed a duty to plaintiffs to determine their
excess flood insurance needs and properly advise them.
On appeal, plaintiffs argue that there was no reason for the
judge to reconsider his earlier decision denying summary judgment
and that neither the language of plaintiffs' homeowners policy nor
1
We are advised that Mr. Ring passed away during the pendency
of this matter.
2
Plaintiffs settled their claim against Willis while this
appeal was pending. We therefore only address plaintiffs'
claims as to MSA.
2 A-2619-15T4
Willis' role as broker for plaintiffs' flood insurance diminished
MSA's "fiduciary duty" to plaintiffs. We affirm.
The facts, when viewed in the light most favorable to
plaintiffs, Angland v. Mountain Creek Resort, Inc., 213 N.J. 573,
592 (2013) (citing Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 523 (1995)), can be summarized as follows. In or about
1983 and 1993, plaintiffs purchased two beachfront properties in
Mantoloking that were located in a designated flood zone. They
secured homeowners and flood insurance through MSA's predecessor,
which subsequently went through several mergers and
reorganizations.
In 2008, plaintiffs moved their account from MSA's
predecessor to Willis. Their account included the homeowners and
flood policies for the Mantoloking properties. Two years later,
plaintiffs transferred only their homeowners policy to a
reorganized version of MSA. They did not transfer their flood
insurance to MSA because MSA did not represent plaintiffs' flood
insurance carrier, Selective Insurance Company.
As part of plaintiffs' transfer of their homeowners policy,
MSA reviewed plaintiffs' insurance coverage. MSA did not make any
recommendation to plaintiffs about their need for excess flood
insurance even though the difference between the coverage provided
by their homeowners and flood insurance policies combined left
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plaintiffs exposed to a substantial gap in the event of a flood.
That gap could have been covered by an excess flood policy.3
Plaintiffs also never asked MSA about the availability of or need
for flood insurance or excess flood insurance.
Plaintiffs experienced a catastrophic loss in 2012 as a result
of damage caused by Superstorm Sandy. Afterward, plaintiffs
learned that their existing coverage would not cover their entire
loss.
Plaintiffs filed this action to recover their losses. During
the litigation, on September 19, 2014, Judge Fall denied summary
judgment motions filed by all the parties. He issued a fourteen-
page written decision on that date explaining his reasons for
doing so. In his decision, the judge concluded that because
discovery was ongoing it would be premature to decide whether MSA
owed a duty to plaintiffs to advise them about the excess flood
insurance.
MSA filed a motion for reconsideration, arguing the judge
erred by overlooking the Supreme Court's decision in Wang v.
3
In a May 29, 2012 letter sent prior to Superstorm Sandy, MSA
advised plaintiffs that their "homeowners policies specifically
exclude damage caused by flood" and that flood insurance was
available if they were interested in obtaining it through MSA.
The letter advised "[a] flood insurance quote is available upon
request," but no request was ever made. Notices sent with the
policy also advised of the need for adequate flood insurance that
was not included in the homeowners policy coverage.
4 A-2619-15T4
Allstate Ins. Co., 125 N.J. 2 (1991), which MSA argued established
it did not owe any duty to plaintiffs as to their flood insurance
as a matter of law based on the undisputed facts. In his written
decision, Judge Fall recognized that his earlier opinion did not
expressly address Wang and he presented an extensive analysis of
that case before concluding it was distinguishable from
plaintiffs' action.
Before turning to the facts in this case, Judge Fall also
reviewed the law applicable to a court's determination of whether
a duty existed. The judge stated that determination is a question
of law to be resolved by the court and that "the legal
determination of the existence of a duty may differ, depending on
the facts of the case." Addressing the undisputed facts, the
judge acknowledged that he "failed to recognize" in his earlier
decision "that there is a marked distinction between the posture
or circumstances of [MSA] and Willis, vis-à-vis their relationship
with plaintiffs, as reflected in the undisputed facts." After
reviewing both relationships, the judge concluded that MSA had no
duty to plaintiffs but that Willis did and there remained a
question of fact as to whether Willis breached its duty.
We begin by acknowledging the legal principles that guide our
review. We review a judge's decision to grant a motion for
reconsideration filed pursuant to Rule 4:49-2 for an abuse of
5 A-2619-15T4
discretion. See Palombi v. Palombi, 414 N.J. Super. 274, 288
(App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990)). Our review of a judge's grant of summary
judgment is de novo, applying the same standard as the motion
judge, without any deference to the judge's legal conclusions,
especially where, as here, there is no genuine issue of material
fact and "only a question of law remains." Cypress Point Condo.
Ass'n v. Adria Towers, LLC, 226 N.J. 403, 415 (2016).
Applying those standards, we conclude that Judge Fall did not
abuse his discretion by reconsidering his earlier decision to deny
MSA's motion, and he properly entered summary judgment in favor
of MSA. We affirm substantially for the reasons stated by Judge
Fall in his comprehensive and thoughtful written decision.
Affirmed.
6 A-2619-15T4