COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE VS. FIRST JERSEY INSURANCE AGENCY (DEPARTMENT OF BANKING AND INSURANCE)

NOT FOR PUBLICATION WITHOUT THE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-5076-16T3

COMMISSIONER OF THE
NEW JERSEY DEPARTMENT
OF BANKING AND INSURANCE,

Petitioner-Respondent,

v.

FIRST JERSEY INSURANCE AGENCY,
GERALD E. CONNER and JAMES W.
BLUMETTI,

Respondents-Appellants.
____________________________________

Argued October 29, 2018 – Decided January 11, 2019

Before Judges Sabatino and Sumners.

On appeal from the New Jersey Department of
Banking and Insurance.

Eric H. Lubin argued the cause for appellant
(Lomurro, Munson, Comer, Brown & Schottland,
LLC, attorneys; Donald M. Lomurro and Eric H.
Lubin, on the briefs).

Ryan S. Schaffer, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
 General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Ryan S. Schaffer, on the
brief).

PER CURIAM

Appellants First Jersey Insurance Agency, Gerald E. Connor, and James

W. Blumetti appeal the final agency decision of the Commissioner of the

Department of Banking and Insurance (DOBI) finding that First Jersey mailed

an untrue, deceptive, or misleading postcard advertisement to 51,517 New

Jersey senior citizens, in violation of various state insurance laws, and imposing

a penalty against appellants, jointly and severally, in the amount of $100,000.

Given our standard of review that requires us to defer to the Commissioner when

his decision is based upon credible evidence in the record and is not contrary to

state law, we affirm.

I

After receiving a complaint about a postcard solicitation by First Jersey,

DOBI issued an Order to Show Cause (OTSC) alleging violations of the

Insurance Producer Licensing Act, N.J.S.A. 17:22A-26 to -57 (Producer Act),

and the Insurance Trade Practices Act, N.J.S.A. 17:29B-1 to -19 [and associated

regulations]. DOBI sought to revoke the insurance producer licenses of First

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Jersey, and Connor and Blumetti, the designated responsible license producers

for First Jersey, and to impose monetary fines against them.

The postcard, initially mailed in August 2013, advertised the services of

First Jersey, stating:

2013 MEDICARE UPDATE
As of January 1st, a leading senior organization and
other Medicare Supplement insurers may increase
their rates up to 30% on Medicare supplement
coverage. Many seniors have turned to HMOs seeking
lower premiums only to find out that patient care is
inadequate. Some HMOs have even closed their
doors.

Based on this there is now available a plan in your
state to supplement Medicare at lower rates for seniors
over 65 years of age.

To find out how to qualify, return this Medicare
Supplement inquiry card within 5 days.

The postcard had a blank space for recipients to fill in their contact information

(address and phone number) and indicated that First Jersey was "[n]ot affiliated

with or endorsed by any governmental agency." First Jersey mailed it to a

targeted list of 51,517 New Jersey residents between the ages of sixty-five and

seventy-five, out of which the company received 1,061 responses. Although the

postcard was prepared by an outside firm, appellants are responsible for mailing

it to the targeted audience.

A-5076-16T3
3
 The OTSC contained three counts alleging violations for mailing

insurance advertisements to New Jersey residents. Count one alleged the

mailing was an untrue, deceptive or misleading advertisement for insurance

products, in violation of N.J.S.A. 17:22A-40a(2), (7) and (8), 1 N.J.S.A. 17:29B-

1
N.J.S.A. 17:22A-40a(2), (7) and (8) provides:

a. The commissioner may place on probation, suspend,
revoke or refuse to issue or renew an insurance
producer’s license or may levy a civil penalty in
accordance with subsection c. of section 20
[C.17:22A-45] of this act or any combination of
actions, for any one or more of the following causes:

(2) Violating any insurance laws, or violating any
regulation, subpoena or order of the commissioner or
of another state’s insurance regulator;

(7) Having admitted or been found to have committed
any insurance unfair trade practice or fraud;

(8) Using fraudulent, coercive or dishonest practices,
or demonstrating incompetence, untrustworthiness or
financial irresponsibility in the conduct of insurance
business in this State or elsewhere;

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4
4(2),2 N.J.A.C. 11:2-11.2.3 Count two, as later amended, alleged violations of

N.J.S.A. 17:22A-40a(2) and (8), and N.J.A.C. 11:17A-2.6(a),4 due to solicitation

2
N.J.S.A. 17:29B-4 (2) provides:

The following are hereby defined as unfair methods of
competition and unfair and deceptive acts or practices
in the business of insurance:

(2) False information and advertising generally.
Making, publishing, disseminating, circulating, or
placing before the public, or causing, directly or
indirectly, to be made, published, disseminated,
circulated, or placed before the public, in a newspaper,
magazine or other publication, or in the form of a
notice, circular, pamphlet, letter or poster, or over any
radio station, or in any other way, an advertisement,
announcement or statement containing any assertion,
representation or statement with respect to the
business of insurance or with respect to any person in
the conduct of his insurance business, which is untrue,
deceptive or misleading.
3
N.J.A.C. 11:2-11.2 provides: "Advertisements shall be truthful and not
misleading in fact or in implication. Words or phrases the meaning of which is
clear only by implication or by familiarity with insurance terminology shall
not be used."
4
N.J.A.C. 11:17A-2.6(a) provides:

An insurance producer who solicits insurance shall be
required to identify the following information to the
person he or she is soliciting prior to commencing his
or her solicitation:

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5
of insurance products that failed to identify the name of the insurer to the person

being solicited prior to commencing the solicitation. 5 Count three alleged the

mailing made misleading representations or incomplete or fraudulent

comparisons of insurance policies for the purposes of inducing or tending to

induce the recipient to lapse, forfeit, surrender, terminate, retain, or contract

with another insurer, in violation of N.J.S.A. 17:22A-40a(2) and (8), and

N.J.A.C. 11:17A-2:8.6

1. His or her name as it appears on his or her
insurance producer license;

2. The name of the insurer, if known, or insurance
producer, that he or she is representing; and

3. The nature of the relationship between the insurance
producer and the insurer or insurance producer being
represented.
5
Because count two was dismissed, it is not a subject of this
appeal.
6
N.J.A.C. 11:17A-2:8 provides:

No insurance producer shall make any misleading
representations or incomplete or fraudulent
comparison of any insurance policies or annuity
contracts or insurers for the purpose of inducing, or
tending to induce, any person to lapse, forfeit,
surrender, terminate, retain, or convert any insurance

A-5076-16T3
6
 Appellants contested the allegations and the matter was transmitted to the

Office of Administrative Law for a hearing. However, a hearing was not

conducted because a motion and cross-motion for summary judgment were filed.

Relying upon certifications of Conner and DOBI Insurance Analyst Frank

Biskup, which went factually unchallenged, the Administrative Law Judge

(ALJ) issued a summary decision that DOBI had proven the violations alleged

in counts one and three.

In the first of his two certifications, Biskup described the market shares

and insurance rates of Medicare Supplement insurance carriers in New Jersey

for the relevant time periods. In 2013, Horizon Healthcare Services, Inc., and

Horizon Insurance Company had market shares of 12.7 percent and 12.6 percent,

respectively. In 2013, Medicare supplement insurance rates increased on

average by 2.4 percent with the highest increase being 15 percent, for a carrier

with a market share of 1.9 percent. In 2014, Horizon Insurance Company had a

market share of 24.9 percent. In 2014, Medicare supplement rates increased on

average by 2.7 percent with the highest increase being 10.4 percent, to a carrier

with a market share of 0.3 percent.

policy or annuity contract, or to take out a policy of
insurance or annuity contract with another insurer.

A-5076-16T3
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 The ALJ compared this information with a rate sheet from Horizon

provided by appellants. The ALJ reviewed the rate sheet and noted that the

Medicare supplement rates were in age attained brackets and concluded that

rates would "jump considerably when the holder reaches [seventy], [seventy-

five], or [eighty]." Based on the market share provided in Biskup's certification,

the ALJ determined that Horizon was a leading senior organization, and

according to the rate sheet, Horizon planned to raise rates by 30 percent and 27

percent. Accordingly, the ALJ found that part of the advertisements to be true.

On the other hand, the ALJ, found as false the part of the advertisements

that stated, "and other Medicare Supplement insurers may increase their rates up

to 30 percent on Medicare supplement coverage." The ALJ found that no other

carrier proposed or was granted increases near 30 percent. Thus, the ALJ

maintained the advertisements contained an untrue assertion with respect to the

business of insurance that violated N.J.S.A. 17:22A-40a(2) and (7), and N.J.S.A.

17:29B-4(2). Concerning count three, the ALJ found that appellants violated

the "twisting" regulation, N.J.A.C. 11:17A-2.8, because the misleading

advertisements were aimed at persuading consumers to call them. The ALJ

reasoned, "the solicitation was not entirely true and was undoubtedly aimed at

persuading some recipients to trade in one policy for another."

A-5076-16T3
8
 In assessing civil penalties, the ALJ applied the seven-factor test set forth

in Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 137–39 (1987), and

recommended fines against appellants, jointly and severally, totaling

$51,517.00; a fifty-cent penalty for each of the 51,517 violations in count one,

and a fifty-cent penalty for each of the 51,517 violations in count three.

Both parties filed exceptions to the ALJ's initial decision with the

Commissioner. Upon reviewing the parties' submissions, the Commissioner

determined there was no genuine dispute of material facts and thus it was

appropriate to decide the matter through summary decision.

The Commissioner agreed with DOBI's allegation in count one that First

Jersey's mailings were, as a whole, misleading and deceptive and, therefore,

violated N.J.S.A. 17:29B-4(2), N.J.S.A. 17:22A-40(a)(2) and (7), and N.J.A.C.

11:2-11.2. In reaching this decision, the Commissioner adopted, modified, or

rejected several of the ALJ's findings.

First, the Commissioner modified the ALJ's finding that Horizon was the

"leading senior organization," mentioned in the mailings because there was no

specific language such as, health service corporation, insurer, or carrier, terms

which would clearly indicate that Horizon was the entity being referenced. He

also found that the term "senior organization," would not apply to a business

A-5076-16T3
9
providing insurance in New Jersey. Consequently, he found the terminology

used by appellants to be vague, which therefore contributed to the overall

deceptive nature of the advertisements.

Second, the Commissioner rejected the ALJ's finding that "Horizon

planned to raise rates by 30 percent and 27 percent for some of its

policyholders." The Commissioner explained that the premium increases for the

referenced policies were not the result of Horizon increasing its overall rate but

were for "Attained Age" rated policies, which charge a different premium to

policyholders depending on their age and will increase as the policyholder

moves into an older age group bracket. Such policyholders were made aware at

the time they purchased the policies that their premiums would rise when they

reached certain age brackets, whereas "Community Rated" policies charge the

same premium to all policyholders regardless of age and will not increase as the

policyholder ages. Hence, the Commissioner found that the advertisements'

assertion of a forthcoming 30 percent rate increase was false and misleading.

The Commissioner dismissed appellants' contention that the

advertisements were accurate because they relied on information provided by a

website known as medicare.gov. The Commissioner found the information

provided by medicare.gov to be incorrect and reasoned it should have been

A-5076-16T3
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obvious to appellants, who are licensed producers with significant industry

experience, that Horizon's rate sheet provided rates for Attained Age policies

and not Community Rated policies.

Third, the Commissioner adopted the ALJ's findings that no Medicare

Supplement carrier was granted a rate increase in 2013 or 2014 anywhere near

30 percent. The Commissioner found that the undisputed Biskup certification

established that insurance rates increased markedly less, on average by 2.4

percent. The Commissioner also adopted the ALJ's rejection of appellants'

contention that they had reasonably relied on one carrier's (United World's)

proposed 30 percent increase. The Commissioner found it misleading for

appellants to advertise a rate increase based on a carrier's proposed rate increase.

He explained that DOBI usually adjusted such proposed rate increase

downward. He also noted that appellants could not have relied on United

World's proposed 30 percent rate increase when deciding to send out the

advertisements because they did not obtain that proposal until after the

advertisements were distributed.

Fourth, the Commissioner modified the ALJ's analysis of the

advertisements' phrase "there is now available a plan in your state to supplement

Medicare at lower rates . . . ." The ALJ found the statement to be false, but the

A-5076-16T3
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Commissioner rejected that portion of the analysis, finding it to be piecemeal,

unnecessary and confusing. The Commissioner instead maintained the

advertisements "should be evaluated on its plain language when read by a

recipient consumer in our State." Therefore, the Commissioner reasoned:

I must consider that this was a mass mailing by the
[r]espondents, who had no knowledge of the Medicare
Supplement product owned by the recipient consumer
or the premium rate being paid by those consumers.
Because of this, the [r]espondents had no way of
knowing whether the statement in the advertisement[s]
. . . [were] true or not for any particular . . . recipient.

Accordingly, the Commissioner found this phrase contributed to the overall

deceptive and misleading nature of the advertisements.

Lastly, the Commissioner found the advertisements clearly sent a message

to its recipients, who are less knowledgeable about how the health insuranc e

system operates, that insurance rates were due to rise sharply. Additionally, he

found that the appellants "utilized the advertisements as a scare tactic in an

attempt to generate business, and such tactics are not appropriate of professional

producers in our State."

With regard to count three, the Commissioner found that appellants'

misleading and deceptive advertisements were meant to persuade the recipients

to contact them to potentially switch carriers, in violation of N.J.S.A. 17:22A -

A-5076-16T3
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40a(2) and N.J.A.C. 11:17A-2.8. The regulation prohibits the use of false or

misleading advertisements in order to induce the recipient to change an existing

policy, otherwise known as "twisting." The Commissioner found that appellants

"indisputably[] engaged in twisting by attempting to induce recipient consumers

to buy insurance from another carrier through misleading and incomplete

comparison of their current policy of which the [r]espondents had no knowledge

. . . ." He found that a hearing was not necessary to determine appellants' state

of mind because the Producer Act does not require a subjective analysis of

whether they knew, or should have known, that any information in the

advertisements was untrue. The objective conduct of the producer itself is the

determinative factor. As the contested issues were legal in nature and did not

require a subjective analysis, the case was ripe for summary decision.

As for the appellants' penalty, the Commissioner reviewed the ALJ's

application of Kimmelman's seven-factor test, which assesses a civil penalty on

the basis of: (1) the good or bad faith of respondent; (2) respondent's ability to

pay; (3) the amount of profits obtained from the illegal activity; (4) the injury to

the public; (5) the duration of the conspiracy; (6) the existence of criminal or

A-5076-16T3
13
treble damages actions; and (7) respondent's past violations. 7 108 N.J. at 137.

The Commissioner adopted the ALJ's findings with modification of the findings

related to factors two and three.

With respect to factor two, the ability to pay, the Commissioner

determined that contrary to the ALJ's initial decision, appellants were

responsible for demonstrating an inability to pay civil penalties and had failed

to do so.8 Concerning factor three, profits from illegal conduct, the

Commissioner reasoned that when considering profits from illegal activity, he

is able to consider potential profits. He found that each of the 51,517 misleading

advertisements had the potential to result in a sale commission for appellants.

Because of this great opportunity to profit from each advertisement, the

Commissioner gave greater weight to this factor than the ALJ.

7
In addition, other factors may be considered to arrive at an appropriate
penalty. Kimmelman, 108 N.J. at 139-40.
8
The Commissioner relied on the decision of the Department of Labor and
Workforce Development, Division of Worker's Compensation, in Steven M.
Goldman, Comm'r v. Kirti Shah, 2008 WL 4877082 (Sept. 2, 2008), which he
reasoned implies that appellants have the burden to demonstrate an inability to
pay.

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 Under the Producer Act, the Commissioner has the discretion to impose

penalties not exceeding $5000 for the first offense, and not exceeding $10,000

for each subsequent violation of the act. N.J.S.A. 17:22A-45c. The

Commissioner increased the ALJ's total penalty assessment of $51,517.00 to

$100,000 against appellants, jointly and severally. 9 He explained that the

increased penalty amount "is necessary to deter [appellants] and the producer

industry as a whole for similar misconduct in the future, and to demonstrate the

appropriate level of opprobrium for [appellants'] misleading advertising

practices."

II

Appellants raise several challenges to the Commissioner's summary

decision. "Generally, we will not upset a State agency's determination in the

absence of a showing that it was arbitrary, capricious or unreasonable, or that it

lacked fair support in the evidence, or that it violated a legislative policy

expressed or implicit in the governing statute." In re Camden Cnty. Prosecutor,

394 N.J. Super. 15, 22-23 (App. Div. 2007) (emphasis and internal quotations

omitted) (quoting Cty. of Gloucester v. Pub. Emp't Relations Comm'n, 107 N.J.

9
The Commissioner rejected the higher $200,000 penalty sought by DOBI
staff.

A-5076-16T3
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Super. 150, 156 (App. Div. 1969)). "The burden of demonstrating that the

agency's action was arbitrary, capricious or unreasonable rests upon the [party]

challenging the administrative action." In re Adoption of Amendments to Ne.,

Upper Raritan, Sussex Cty., 435 N.J. Super. 571, 582 (App. Div. 2014)

(alteration in original) (quoting In re Arenas, 385 N.J. Super. 440, 443-44 (App.

Div. 2006)).

In accordance with N.J.A.C. 1:1-12.5(b), a state agency's decision to grant

a motion for summary decision is "substantially the same" as that governing a

motion for summary judgment adjudicated by a trial court under Rule 4:46-2.

Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 121 (App. Div. 1995).

When reviewing on appeal an order granting summary judgment, we apply "the

same standard governing the trial court." Oyola v. Liu, 431 N.J. Super. 493, 497

(App. Div. 2013). Summary judgment should be granted only when the record

reveals "no genuine issue as to any material fact" and "the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-2(c). Although we

"must give deference to [an] agency's . . . 'interpretation of statutes and

regulations within its implementing and enforcing responsibility,' we are 'in no

way bound by the agency's interpretation of a statute or its determination of a

A-5076-16T3
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strictly legal issue[.]'" Utley v. Bd. of Review, Dep't of Labor, 194 N.J. 534, 551

(2008) (citations omitted).

Summary judgment should be denied when the determination of material

disputed facts depends primarily on credibility evaluations. Petersen v. Twp. of

Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011). Although both parties

moved for summary decision, because judgment was granted in favor of DOBI,

we consider the facts in a light most favorable to appellants. See Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

A.

Appellants initially argue the Commissioner's decision was arbitrary and

capricious because the advertisements were based on facts and were not untrue ,

deceptive and misleading. They maintain the Commissioner "had to strain logic

and plain language to hold otherwise." They argue that in stating that rates

"may" increase, the term "may" was used in a common way to mean, "something

is not guaranteed, but 'may' happen." According to appellants, the

advertisements credibly relied on the Horizon rate sheet, which stated, "it would,

and then actually did raise its rates by 30 percent" to support the validity of the

advertisements. They argue the use of Biskup's certification is unreliable

A-5076-16T3
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hearsay and their evidence from the Medicare website proves that the referenced

to Horizon rates pertain to Community rated policies. We are unpersuaded.

We discern no reason to upset the Commissioner's determination that the

overall tenor of the postcard advertisements are untrue, deceptive and

misleading. His reasoning is sound and logical. There appears little doubt that

the advertisements sought to persuade senior citizens to contact First Jersey, so

they could avoid alleged significant premium increases from their existing

Medigap insurance provider. If the recipients purchased new coverage through

First Jersey, the agency would in turn collect commissions from the premiums

paid. The fact that over one thousand senior citizens responded by mail to the

advertisements is evidence that the ad campaign was influential

B.

Appellants next argue that, at a minimum, the matter should be remanded

for an evidentiary hearing before an ALJ to assess appellants' state of mind in

mailing the advertisements in order to determine whether they violated the law.

To comply, the court must articulate factual findings and correlate them with the

principles of law. They contend that the Producer Act requires the

Commissioner to consider a licensee's intent or state of mind in mailing the

advertisements. We disagree.

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 We favor DOBI's contention that it need not show appellants' state of mind

in mailing the advertisements, based upon an analogous situation in State v.

Nasir, 355 N.J. Super. 96, 106 (App. Div. 2002). In Nasir, we held that under

the Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30 ("Fraud Act"),

which the Commissioner is also charged with enforcing, it was "irrelevant

whether [the] defendant had the intent to deceive." Id. at 106. Thus, summary

decision by the Commissioner was appropriate because the State only needed to

establish that the defendant provided false information that was "within his

knowledge," and defendant was held to a higher standard because of his

background in the insurance industry. Ibid.

Like the company in Nasir, appellants' state of mind is irrelevant, and the

misleading and false information in the advertisements was within their

knowledge due to their insurance industry experience. The Producer Act

prohibits "insurance unfair trade practice or fraud" and "[u]sing fraudulent, . . .

or dishonest practices[.]" N.J.S.A. 17:22A-40a(7) and (8). N.J.A.C. 11:2-11.2

requires that "advertisements . . . shall be truthful and not misleading in fact or

in implication." N.J.A.C. 11:17A-2.8, prohibits insurance providers from using

"fraudulent comparison of any insurance policies . . . for the purpose of

inducing, or tending to induce, any person to . . . take out another insurance

A-5076-16T3
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policy . . . with another insurer." Appellants fail to show that the Commissioner

has misinterpreted the Producer Act and its governing regulations by

determining that intent to deceive is not a necessary element of insurance fraud

under the act. See Open MRI of Morris & Essex v. Frieri, 405 N.J. Super. 576,

583 (App. Div. 2009) (citing Nasir, 355 N.J. Super. at 106).

C.

Lastly, appellants contend the $100,000 penalty was excessive because, at

most, there were only two violations and, at $10,000 maximum for each, the

most they could be assessed is $20,000. Appellants assert the number of

violations, not the number of postcard mailings, determines the civil penalties.

N.J.S.A. 17:22A-45c. They argue the Commissioner did not rely on any

evidence or special knowledge within his purview, and that he never sought to

examine any actual profits they earned from the advertisements. They further

argue, DOBI "has always imposed substantially smaller fines for insurance

producers who disseminate[] untrue or deceptive advertisements[.]" Again, we

are unpersuaded.

We "generally afford substantial deference to the actions of administrative

agencies[,]" and thus, our "review of [their] choice of sanction is limited." In re

License Issued to Zahl, 186 N.J. 341, 353 (2006). "Deference is appropriate

A-5076-16T3
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because of the 'expertise and superior knowledge' of agencies in their specialized

fields and because agencies are executive actors[.]" Ibid. (citations omitted)

(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

In exercising . . . authority to alter a sanction imposed
by an administrative agency, the [c]ourt can do so
only when necessary to bring the agency's action into
conformity with its delegated authority. The [c]ourt
has no power to act independently as an administrative
tribunal or to substitute its judgment for that of the
agency. It can interpose its views only where it is
satisfied that the agency has mistakenly exercised its
discretion or misperceived its own statutory authority.

[In re License of Polk, 90 N.J. 550, 578 (1982).]

"[T]he test in reviewing administrative sanctions is 'whether such punishment is

"so disproportionate to the offense, in the light of all the circumstances, as to be

shocking to one's sense of fairness."'" Ibid. (quoting Pell v. Bd. of Educ., 313

N.E.2d 321, 327 (N.Y. 1974)). See also In re Herrmann, 192 N.J. 19 (2006).

Here, the penalty – sanctioned by statute, N.J.S.A. 17:22A-45c – allows

for $5000 for the first offense, and not exceeding $10,000 for each subseq uent

violation of the act. In applying the Kimmelman test, the Commissioner

reasonably decided that First Jersey should pay a fine for each of the 51,517

postcard advertisements it mailed. Considering the Commissioner's sanction

was meant to deter conduct such as appellants' and was based upon credible

A-5076-16T3
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evidence, we defer to his decision-making, concluding it is consistent with the

law and does not shock our sense of fairness.

Affirmed.

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