AAA MID ATLANTIC INSURANCE COMPANY OF NEW JERSEY SHENGSHIA PENG AND CHINGCHI LEE v. Plaintiff, (2013)

Third-party plaintiff Chukwueme Anarah appeals from a December 20, 2012 order granting judgment in favor of third-party defendant GEICO Indemnity Company (GEICO) after a special civil part trial.   The primary question during the trial was whether GEICO effectively canceled Anarah's automobile insurance policy before the accident.   We affirm.

In August 2010, Anarah obtained automobile insurance from GEICO for his Nissan Rogue.   To lower his premiums, Anarah designated his health insurance carrier as the primary insurer for personal injury protection (PIP) benefits.   Anarah was unable to confirm that he had sufficient health insurance coverage and GEICO calculated his premiums using the statutorily required $250,000 in PIP coverage.   Anarah made two partial premium payments, $350 in August 2010 and $266 in September 2010.

On September 27, 2010, GEICO issued a written notice of cancellation of the policy for non-payment of premiums.   GEICO sent the notice to Anarah by regular mail and obtained from the Post Office a date stamped proof of mailing.   Pursuant to the notice, GEICO canceled the policy effective October 13, 2010 for failure to make the requisite payment.

On October 30, 2010, at 11:00 a.m., Anarah's son had an accident with another vehicle while using the Nissan.   At 11:25 a.m., Anarah made a credit card premium payment to GEICO, and at 12:19 p.m., Anarah attempted to add collision coverage on the policy for the Nissan.

Plaintiff filed a subrogation lawsuit against Anarah, requesting reimbursement for the property damage that it paid to the owner of the other vehicle.   Anarah filed this third-party complaint seeking indemnification under the policy and a declaratory judgment that GEICO pay for damages resulting from the accident.   GEICO filed its answer to the third-party complaint and moved for summary judgment.   Judge Paul J. Vichness bifurcated the underlying action,¹ tried the DJ suit, and dismissed the third-party complaint, concluding that GEICO properly canceled the policy.

On appeal, Anarah argues that (1) GEICO unjustifiably used the statutorily-required $250,000 in PIP coverage to calculate his premiums;  (2) the judge erred by denying Anarah's request to give a closing argument;  and (3) the judge erred by concluding that GEICO properly canceled the policy.   We conclude that Anarah's first two arguments are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).   We focus on his third contention.

Factual “ ‘[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial[,] and credible evidence.’ ”  Walid v. Yolanda for Irene Couture, Inc., 425 N.J.Super. 171, 179 (App.Div.2012) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).  “ ‘[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence as to offend the interests of justice.’ ”   Ibid. (alteration in original) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J.Super. 154, 155 (App.Div.), certif. denied, 40 N.J. 221 (1963)).   Using this standard, we have no reason to disturb the judge's findings.

The judge concluded that GEICO's cancellation notice comported with the requirements of N.J.S.A. 17:29C–10, which provides:

No written notice of cancellation or of intention not to renew sent by an insurer to an insured in accordance with the provisions of an automobile insurance policy shall be effective unless a. (1) it is sent by certified mail or (2) at the time of the mailing of said notice, by regular mail, the insurer has obtained from the Post Office Department a date stamped proof of mailing showing the name and address of the insured and b. the insurer has retained a duplicate copy of the mailed notice which is certified to be a true copy.

[ (Emphasis added).]

The judge found that Anarah failed to respond to the notice and did not make the requisite premium payment.  Rova Farms, supra, 65 N.J. at 484.   As a result, the judge concluded correctly that GEICO properly canceled the policy.   He also determined that Anarah knew GEICO canceled his policy because Anarah attempted to reinstate the insurance by making a credit card payment to GEICO twenty-five minutes after the accident.

Affirmed.

FOOTNOTES

FN1. Because the trial court decided this declaratory judgment before the subrogation case was concluded, there is a distinct possibility this appeal may be interlocutory.   We nevertheless on our own motion grant appellants leave to appeal in the interests of justice pursuant to Rule 2:2–4.   See also House of Fire Christian Church v. Zoning Bd. of Adjustment, of Clifton, 426 N.J.Super. 157, 164 (App.Div.2012)..  FN1. Because the trial court decided this declaratory judgment before the subrogation case was concluded, there is a distinct possibility this appeal may be interlocutory.   We nevertheless on our own motion grant appellants leave to appeal in the interests of justice pursuant to Rule 2:2–4.   See also House of Fire Christian Church v. Zoning Bd. of Adjustment, of Clifton, 426 N.J.Super. 157, 164 (App.Div.2012).

PER CURIAM