Aden v. Fortsh

VERNIERO, J.,

dissenting.

In this broker malpractice action, the Court holds that the jury is forbidden as a matter of law from considering the possible comparative negligence of plaintiffs in failing to read the declarations page of their insurance policy. That holding relieves an insured from having to take the minimal step of reviewing a policy’s one or two-page declarations sheet to avoid the kinds of injuries that occurred here. The majority’s approach also dilutes *88the significance of a legion of cases in which courts have stressed the importance of having insurance policies written in clear, straightforward terms to aid policyholders in reading and understanding them. See Harr v. Allstate Ins. Co., 54 N.J. 287, 304, 255 A.2d 208 (1969) (emphasizing insurer’s “obligation to make policy provisions, especially those relating to coverage, ... plain, clear and prominent to the layman”). Because I do not subscribe to the Court’s approach or the policy rationale on which it is based, I respectfully dissent.

I.

Prior to 1973, “New Jersey’s common law doctrine of contributory negligence barred an injured plaintiff from tort recovery when the plaintiffs own conduct contributed ‘in any degree’ to the plaintiffs harm.” Brian E. Mahoney, New Jersey Comparative Fault and Liability Apportionment § 1:1-2 at 6 (2001). The Legislature ameliorated the unfairness inherent in that rule when it enacted New Jersey’s first comparative negligence statute. L. 1973, c. 146. See Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 161, 406 A.2d 140 (1979) (tracing history of statute). That statute declared that “[ejontributory negligence shall not bar recovery in an action by any person ... if such negligence was not greater than the negligence of the person against whom recovery is sought[J” L. 1973, c. 146. Over the years, the Legislature has made numerous refinements to the statute, which has had the effect of superseding the common law. Steele v. Kerrigan, 148 N.J. 1, 15, 689 A.2d 685 (1997) (observing that comparative negligence statute “largely abrogated the common-law doctrine of contributory negligence”).

The harshness of the common-law doctrine of contributory negligence led this Court in Rider v. Lynch, 42 N.J. 465, 482, 201 A.2d 561 (1964), to express the view that an insured’s failure to read an insurance policy should not bar recovery against a broker for negligent procurement. In Rider, the plaintiff engaged an insurance broker to obtain automobile insurance. He bought the *89policy procured by the broker, but did not read it until after he was involved in an automobile accident and learned that he was not covered under the policy. The Court observed: “In passing, it should be said that failure of ... the plaintiff to read the policy will not estop [the insured] from prosecuting a cause of action in negligence against [the broker].” Ibid. Without elaboration, the Court also stated that “such failure [will not] support a defense of contributory negligence.” Ibid.

Plaintiffs’ view, with which the Court is in substantial agreement, is that Rider continues to bar a trier of fact from considering an insured’s degree of fault in the broker-malpractice context. I disagree. I have found no reported New Jersey case after 1973 that has cited Rider in support of plaintiffs’ proposition. The lack of such case law convinces me that the Legislature’s 1973 enactment of the comparative negligence statute rendered that aspect of Rider effectively void. Rider remains good law in respect of other propositions for which it is sometimes cited, namely, that insurance brokers are “required to have the degree of skill and knowledge requisite to the calling” and that brokers ordinarily invite their clients to rely on the brokers’ expertise in procuring insurance that best suits their clients’ needs. Id. at 476, 477, 201 A.2d 561. I intend no diminution of that standard. To the contrary, I share the sentiments expressed in Weinisch v. Sawyer, 123 N.J. 333, 340, 587 A.2d 615 (1991), in which the Court stated that “[a]gents, like brokers, are obligated to exercise good faith and reasonable skill in advising insureds.”

In arguing that the trial court properly denied the comparative-negligence charge, plaintiffs also rely on Conklin v. Hannoch Weisman, 145 N.J. 395, 678 A.2d 1060 (1996). That reliance is misplaced. The facts in Conklin were complicated. The plaintiffs hired a law firm to help them with a land sale involving a purchase money mortgage, but when the other party to the contract went bankrupt, the plaintiffs lost- their land and their money. Id. at 400-02, 678 A.2d 1060. The plaintiffs sued the law firm for failing to inform them accurately in respect of the subordination clause *90contained in the mortgage. Id. at 402, 678 A.2d 1060. The law firm contended that the plaintiffs had understood fully what it meant to be subordinated on the mortgage and had contributed to their own vulnerable position. Id. at 403, 678 A.2d 1060. The Court held that the plaintiffs’ possible negligence was not relevant in their malpractice action. Id. at 412, 678 A.2d 1060.

I interpret Conklin’s holding to be limited by its unique facts. Unlike the majority, I would not extend that holding to the present circumstance. In contrast to Conklin, the facts in this case are straightforward. There is no dispute that plaintiffs did not read their policy or the declarations page until after the fire occurred. That the declarations page plainly sets forth the $1,000 coverage limit in an easy-to-read fashion is also uncontested. Had plaintiffs reviewed that page of the policy, they would have readily seen the limits of coverage. Lehrhoff v. Aetna Cas. & Sur. Co., 271 N.J.Super. 340, 346, 638 A.2d 889 (App.Div.1994) (deeming declarations page “as having signal importance” in defining insured’s expectations of coverage). Hence, this case implicates whether plaintiffs bore any responsibility prior to the fire to examine at least the policy’s declarations page to determine if its terms were as the parties intended. Cf. Martinez v. John Hancock Mut. Life Ins. Co., 145 N.J.Super. 301, 310, 367 A.2d 904 (App.Div.1976) (describing extent of duty of insureds to read policies), certif. denied, 74 N.J. 253, 377 A.2d 660 (1977).

II.

I would hold that in malpractice actions involving agents, brokers, or similar parties, the trier of fact is generally required to determine the degree of an insured’s negligence or fault in failing to read a policy’s declarations page. I would confine that holding to the declarations page because, as noted, that page has “signal importance” in defining an insured’s expectation of coverage. Lehrhoff, supra, 271 N.J.Super. at 346, 638 A.2d 889. My intended disposition would in no way alter existing requirements in respect of personal injury protection coverage contained in Title *9139 or lessen the responsibilities appropriately placed on insurance professionals.

I also would reaffirm a trial court’s ability to determine as a threshold matter whether the jury’s involvement is warranted by the facts of a particular case. In that regard, when justified under the totality of the facts, a trial court is free to conclude in any action that no reasonable jury could find a policyholder to be at fault. If the court so concludes, it need not charge comparative negligence to the jury. Vega by Muniz v. Piedilato, 154 N.J. 496, 529, 713 A.2d 442 (1998) (Handler, J., concurring) (observing that trial courts retain discretion to determine fault issue because New Jersey’s comparative negligence statute does not mandate that jury must evaluate plaintiffs alleged negligence in all instances). In short, I would leave undisturbed a court’s inherent authority to determine the applicability of comparative negligence in a given case.

In carrying out its required tasks, the jury does not perform in a vacuum. Instead, it considers all relevant circumstances related to the broker-client relationship. In so doing, the jury may decide that the extent of the insured’s fault in failing to read the policy’s declarations page is relatively small as compared to the negligence of the broker, or that the insured is not at fault at all. Particular to this case, for example, the jury would consider whether the broker failed to advise his clients adequately by not reviewing then-master deed or association policy before obtaining plaintiffs’ policy.

Consequently, I would not relieve the broker of any affirmative obligation to act in accordance with industry standards. In determining a party’s degree of fault, jurors would be able to consider the disparity in sophistication between the insured and the broker, the failure of the broker to gather the facts necessary to assess the client’s coverage needs, or any other relevant factor. The Supreme Court of Oregon has articulated a similar view:

Insureds and insurance policies are not all alike. Insureds range from unsophisticated individuals who know nothing about insurance, to experienced business *92persons knowledgeable about insurance, to large corporations with batteries of lawyers. The relevant provisions of the policy may be simple (the address of the insured premises, for example) or complex. A jury should be allowed to consider two questions: Under the relevant circumstances, was it um-easonable in the light of foreseeable risks for the insured not to read the policy? If so, did the insured’s unreasonable failure to read the policy contribute to the insured’s damages?
[Martini v. Beaverton Ins. Agency, Inc., 314 Or. 200, 838 P.2d 1061, 1067 (1992).]

Implicit in that approach is an abiding faith in jurors. Along those lines, this Court observed recently “that jurors are persons of good faith, that they strive to fulfill their role without passion or prejudice toward either side, and that they work hard to abide by all instructions to the best of their ability.” Wanetick v. Gateway Mitsubishi, 163 N.J. 484, 494, 750 A.2d 79 (2000). I see no compelling reason to justify shielding jurors from the possible comparative negligence of an insured under the circumstances presented here.

III.

Our jurisprudence properly insists that fiduciaries, on whom members of the public rely for services and advice, conduct themselves with diligence and care. “One who holds himself out to the public as an insurance broker must exercise reasonable skill, care, and diligence in the execution of his responsibilities.” Aden v. Fortsh, 327 N.J.Super. 360, 366, 743 A.2d 371 (App.Div. 2000) (citing Rider, supra, 42 N.J. at 476, 201 A.2d 561). We need not choose, however, between the twin aims of enforcing those professional standards and encouraging insureds to read the declarations page of their policies to avoid harm. By applying concepts of comparative fault, our jurisprudence can fairly accommodate both objectives.

My sense from the record is that if plaintiffs had read only the two-page declarations sheet attached to their policy, they likely would have avoided not only their damages but also the burdens of this litigation. Those burdens have been felt by the parties and the system as a whole in the form of counsel fees, court costs, and clogged dockets. The Court should recognize the applicability of *93comparative negligence in this instance as it has in other cases involving professional malpractice. See, e.g., Rosenblum v. Adler, 93 N.J. 324, 350-51, 461 A.2d 138 (1983) (observing in negligence suit against accounting firm that “[n]egligence of the injured party could bar or limit the amount of recovery”). Such an approach would have the salutary effect of encouraging policyholders to read the declarations page of their insurance policies. That, in turn, would avoid legal wrangling and help prevent the kind of damages that resulted here.

That New Jersey has grappled with the high costs of insurance is no secret. See, e.g., In re Am. Reliance Ins. Co., 251 N.J.Super. 541, 545, 598 A.2d 1219 (App.Div.1991) (outlining history of New Jersey’s “intractable” automobile insurance problems), certif. denied, 127 N.J. 556, 606 A.2d 369 (1992). In a state in which such costs are a perennial problem, sound public policy requires that insureds be encouraged to take the minimal step of reviewing the declarations page of their policies to avoid the injuries and disputes associated with having inadequate coverage. Expecting policyholders to exercise that minor degree of personal responsibility in this setting is both reasonable and fair.

Some insurance policies are so complicated, ambiguous, or confusing that insureds cannot be faulted for their failure to read even the declarations page. I reiterate that in such instances trial courts may withhold from the jury questions about which no reasonable juror could disagree, including those concerning comparative fault. Mahoney, supra, § 5:2-2 at 69 (“The issue of comparative fault will be submitted to the trier of fact only when the defendant presents sufficient evidence of the plaintiffs fault or other misconduct.”). Under those circumstances, I am satisfied that our affirming the judgment below would place no undue burden on policyholders and would not dramatically alter existing litigation practices.

Lastly, in the absence of a comparative negligence charge, the jury in this case was left with the impression that “it had to find that plaintiffs were the sole proximate cause of their loss before it *94could find in favor of defendant.” Aden, supra, 327 N.J.Super. at 368, 743 A.2d 371. I agree with the Appellate Division that “the jury could have been confused and misled by this one-sided instruction!,]” and that the instruction did not accurately represent the current state of the law. Ibid,.

IV.

For the reasons stated, in addition to those set forth in Judge Eichen’s persuasive opinion below, I would affirm the judgment of the Appellate Division.

Justices COLEMAN and LaVECCHIA join in this opinion.

For reversal — Chief Justice PORITZ and Justices STEIN, LONG and ZAZZALI — 4.

For affirmance — Justices COLEMAN, VERNIERO and LaVECCHIA — 3.