New Jersey Statute Allows Suit Against Insurer Who Advised its Insured No Coverage Years After Denial
Read the full article at https://lnkd.in/gyWjUVKg and https://zalma.com/blog plus more than 4200 posts.
But, is this a Waste of Time & Money?
Steven D’Agostino appealed from trial court orders dismissing his complaint in Steven D’agostino v. Colony Insurance Company, Lake Poulton, Poulton & Associates, LLC, and The Lawyers’ Fund For Client Protection, No. A-5331-18, Superior Court of New Jersey, Appellate Division (May 17, 2022) dealt with the effect of a New Jersey Statute on a suit by a judgment debtor of an insured whose claim was rejected.
FACTS
Plaintiff’s complaint alleges the following facts, which, like the trial court, the appellate court accepted as true for purposes of the motion. In February 2002, plaintiff retained Laurence Hecker, a solo practitioner licensed in New Jersey, to represent him in connection with an employment matter. Despite harboring some initial skepticism as to Hecker’s ability to handle the case, plaintiff claims he decided to retain Hecker once the lawyer represented “he was ‘a PC’ with ‘half a million dollars’ worth of malpractice insurance.”
Plaintiff’s employment matter went against him and, in September 2006, proceeding pro se, he filed a legal malpractice action against Hecker. In 2009, a jury determined Hecker had been negligent in his representation of plaintiff and awarded plaintiff $330,000 in damages, along with pre-judgment interest. Plaintiff claims Hecker reportedly told two different pretrial judges he had no insurance carrier.
Defendant Colony Insurance Company issued a $1,000,000 claims made professional liability policy to Hecker for a one year period beginning March 16, 2006 – six months before plaintiff filed suit. The retroactive date for that policy, however, was March 16, 2006, the first day of the policy period. Colony declined Hecker’s request for defense and indemnification under the policy.
Plaintiff was unable to recover the $330,000 judgment from Hecker. In 2011, plaintiff filed a claim with the Lawyers’ Fund for Client Protection, that denied plaintiff’s claim.
Hecker died in May 2017, and, over the course of the next year, plaintiff obtained access to several boxes of Hecker’s personal and business records. After reviewing the records, plaintiff claims he learned Hecker had malpractice insurance in place during the pendency of the malpractice suit. Plaintiff subsequently called Poulton, which informed him that Colony had denied Hecker’s claim for coverage “because the retroactive date of Hecker’s policy did not go back far enough to cover” the conduct underlying the malpractice suit. Colony refused to provide any information and claimed it only kept records for ten years.
Colony and Poulton successfully moved to dismiss for failure to state a claim, arguing plaintiff lacked standing as a third-party beneficiary and any derivative claims were time-barred. Poulton also argued plaintiff had not stated a viable claim against the company because, as an independent insurance broker, it was not liable for an insurance carrier’s coverage decision.
The court found plaintiff’s status was more akin to a judgment creditor. The trial court found plaintiff’s claim was “essentially a bad faith claim against the insurance carrier and the broker,” which is not cognizable by an individual or entity that is not the insured or an assignee of the insured’s contract rights.
ANALYSIS
As a general rule an individual or entity that is a stranger to an insurance policy has no right to recover the policy proceeds. But, the appellate court concluded, that the general rule does not apply here. N.J.S.A. 17:28-2 provides an injured person may maintain an action against an insurer when his judgment against the insured tortfeasor remains unsatisfied due to insolvency, which plaintiff’s complaint alleges here.
The trial court was correct plaintiff is not an intended third-party beneficiary in the traditional sense. Nor is he an assignee of Hecker’s contract rights entitling him to sue on the policy. But, the court concluded, he has plainly stated a claim as a third-party beneficiary by virtue of the direct action statute with standing to sue Colony on the policy
Accordingly, the appellate court concluded that the judgment dismissing plaintiff’s complaint for lack of standing against Colony must be reversed. While Colony has raised potential defenses it may have to plaintiff’s claim, assuming plaintiff can establish Hecker’s insolvency – asserting plaintiff can look to the limit of the policy proceeds to satisfy his judgment under N.J.S.A. 17:28-2, only if coverage is available, [and] only if plaintiff does so within the statutory limitations period – the viability of those defenses will have to await discovery.
Colony’s assertion that plaintiff’s claim is time-barred was not clear to the court on this record when plaintiff’s claim accrued under N.J.S.A. 17:28-2.
The New Jersey Supreme Court has noted that “[w]hile the injured person has no greater right under the policy than has the assured, he has ‘a cause of action the moment he is injured’ which ripens into a right of action when he recovers a judgment against the assured whose insolvency is proved by the return of an execution unsatisfied.” Dransfield, 5 N.J. at 194 (quoting Century Indemnity Co. v. Norbut, 117 N.J. Eq. 584, 587 (Ch. 1935); aff’d, 120 N.J. Eq. 337 (E. & A. 1936)).
Plaintiff has only stated a claim against Colony under N.J.S.A. 17:28-2, he has come nowhere near proving one. Finally, we likewise find plaintiff has stated a claim against Poulton and Poulton & Associates for the broker’s negligent failure to procure the appropriate professional liability coverage. A broker has a duty of care to foreseeable third parties injured by the broker’s negligence in failing to secure appropriate insurance coverage.
Although it is certainly possible plaintiff will not be able to prove Poulton failed to secure the coverage Hecker asked for or expected, or that any such cause of action is timely, plaintiff has stated the claim and should thus be permitted the opportunity to try to prove it.
ZALMA OPINION
Trial and appellate courts tend to give a great deal of consideration to actions brought by pro se plaintiffs. Although Mr. D’Agostino successfully sued his lawyer for malpractice he was unable to collect on his judgment. Only when the lawyer defendant died did he obtain information that indicated the lawyer was insured at the time of his trial although the insurer disclaimed coverage he sued the insurer and insurance broker to attempt to collect his old judgment. He lost on a motion to dismiss only to have the appellate court send the case back down for gathering evidence which, very probably, will result in a judgment in favor of the insurer and broker defendants because the case is old and Hecker, now dead, has no assets. A waste of court, lawyer, and defendant time.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected].
Subscribe to Zalma on Insurance at locals.com https://zalmaoninsurance.local.com/subscribe.
Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.
Write to Mr. Zalma at [email protected]; http://www.zalma.com; http://zalma.com/blog; daily articles are published at https://zalma.substack.com.
Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/
Interpleader Protects All Claimants Against Life Policy and the Insurer
Who’s on First to Get Life Insurance Proceeds
Post 5184
See the full video at https://lnkd.in/gyxQfnUz and at https://lnkd.in/gAd3wqWP, and at https://zalma.com/blog plus more than 5150 posts.
Go to X @bzalma; Go to Barry Zalma videos at Rumble.com at https://lnkd.in/gRthzSnT; Go to Barry Zalma on YouTube- https://lnkd.in/g2hGv88; Go to the Insurance Claims Library – https://lnkd.in/gwEYk.
Interpleader Protects All Claimants Against Life Policy and the Insurer
In Metropolitan Life Insurance Company v. Selena Sanchez, et al, No. 2:24-cv-03278-TLN-CSK, United States District Court, E.D. California (September 3, 2025) the USDC applied interpleader law.
Case Overview
This case involves an interpleader action brought by the Metropolitan Life Insurance Company (Plaintiff-in-Interpleader) against Selena Sanchez and other defendants (Defendants-in-Interpleader).
Key Points
Plaintiff-in-Interpleader’s Application:
The Plaintiff-in-Interpleader...
A Claim by Any Other Name is not a Claim
Post 5182
It is Imperative that Insured Report Potential Claim to Insurers
Read the full article at https://lnkd.in/gfbwAsxw, See the full video at https://lnkd.in/gea_hgB3 and at https://lnkd.in/ghZ7gjxy, and at https://zalma.com/blog plus more than 5150 posts.
In Jeffrey B. Scott v. Certain Underwriters At Lloyd’s, London, Subscribing To Policy No. B0901li1837279, RLI Insurance Company, Certain Underwriters At Lloyds, London And The Insurance Company, Subscribing To Policy No. B0180fn2102430, No. 24-12441, United States Court of Appeals, Eleventh Circuit (August 25, 2025) the court explained the need for a claim to obtain coverage.
Case Background:
This appeal arises from a coverage dispute under a Directors & Officers (D&O) insurance policy. Jeffrey B. Scott, the plaintiff-appellant, was terminated from his role as CEO, President, and Secretary of Gemini Financial Holdings, LLC in October 2019. Following his termination, Scott threatened legal action against Gemini, and ...
A Claim by Any Other Name is not a Claim
Post 5182
It is Imperative that Insured Report Potential Claim to Insurers
Read the full article at https://lnkd.in/gfbwAsxw, See the full video at https://lnkd.in/gea_hgB3 and at https://lnkd.in/ghZ7gjxy, and at https://zalma.com/blog plus more than 5150 posts.
In Jeffrey B. Scott v. Certain Underwriters At Lloyd’s, London, Subscribing To Policy No. B0901li1837279, RLI Insurance Company, Certain Underwriters At Lloyds, London And The Insurance Company, Subscribing To Policy No. B0180fn2102430, No. 24-12441, United States Court of Appeals, Eleventh Circuit (August 25, 2025) the court explained the need for a claim to obtain coverage.
Case Background:
This appeal arises from a coverage dispute under a Directors & Officers (D&O) insurance policy. Jeffrey B. Scott, the plaintiff-appellant, was terminated from his role as CEO, President, and Secretary of Gemini Financial Holdings, LLC in October 2019. Following his termination, Scott threatened legal action against Gemini, and ...
Barry Zalma: Insurance Claims Expert Witness
Posted on September 3, 2025 by Barry Zalma
The Need for a Claims Handling Expert to Defend or Prove a Tort of Bad Faith Suit
© 2025 Barry Zalma, Esq., CFE
When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.
On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive ...
The Need for a Claims Handling Expert to Defend or Prove a Tort of Bad Faith Suit
© 2025 Barry Zalma, Esq., CFE
When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.
On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive and became a consultant and expert witness for lawyers representing insurers and lawyers ...
APPRAISAL AWARD SETS AMOUNT OF DAMAGES RECOVERED FROM INSURER
Post 5180
See the full video at https://rumble.com/v6yd2z0-evidence-required-to-prove-breach-of-contract.html and at https://youtu.be/2ywEjs3hZsw, and at https://zalma.com/blog plus more than 5150 posts.
It’s a Waste of Time to Sue Your Insurer if You Don’t Have Evidence
Evidence Required to Prove Breach of Contract
Read the full article at https://www.linkedin.com/pulse/evidence-required-prove-breach-contract-barry-zalma-esq-cfe-rfelc, see the full video at https://rumble.com/v6yd2z0-evidence-required-to-prove-breach-of-contract.html and at https://youtu.be/2ywEjs3hZsw, and at https://zalma.com/blog plus more than 5150 posts.
It’s a Waste of Time to Sue Your Insurer if You Don’t Have Evidence
In Debbie Beaty and Jonathan Hayes v. Homeowners Of America Insurance Company, No. 01-23-00844-CV, Court of Appeals of Texas, First District (August 26, 2025) Debbie Beaty and Jonathan Hayes filed a claim under their homeowner’s insurance policy with Homeowners of ...