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If a plaintiff wishes to file suit in federal court based upon the premise of diversity jurisdiction, he must be able to establish that the plaintiff and the defendant are citizens of different states. While the citizenship of a corporation is both of the state of its incorporation, as well as its principal place of business, the citizenship of an LLC is based upon where its members reside. That may be difficult to establish at the inception of the case. In Lincoln Benefit Life Co. v. AEI Life LLC, 2015 U.S. App. LEXIS 15576 (3d Cir. 2015), the Third Circuit dealt with the issue of establishing diversity against an LLC when the citizenship of all of its members are not known at the time of filing suit.

In Lincoln Benefit, the plaintiff filed suit seeking a declaratory judgment voiding two $6.65 million life insurance policies. It alleged that these policies were procured through fraud and for the benefit of investors who had no relationship to the individual whose life was insured. According to its complaint, this sort of policy is called a “stranger originated life insurance” or “STOLI” scheme which generally violates state insurable-interest laws and the public policy against wagering on human life.

It sued a corporation involved in the procurement of the policies and also two LLCs that were the record owners and beneficiaries of the policies. It based jurisdiction on the diversity of citizenship. Lincoln Benefit pleaded that it was a citizen of the State of Nebraska and, upon information and belief, the 2 defendant LLCs were citizens and were domiciled in either NY or Delaware.

The defendants filed a motion to dismiss based upon lack of subject matter jurisdiction because the plaintiff had not pleaded the citizenship of the members of the LLC. In response, Lincoln Benefit pointed out that none of the defendants asserted that they were a citizen of the State of Nebraska and, at this pleading stage, after a diligent search, it was unable to plead their citizenship with more specificity. It opposed this motion and asked for limited jurisdictional discovery.

The District Court granted the defendants’ motion to dismiss based upon the inadequacy of the complaint to establish jurisdiction as to the members of the LLC. It also denied the plaintiff’s request for jurisdictional discovery.

The Third Circuit reversed this decision, allowing this complaint to go forward at this pleading stage. It held that, at this stage it is sufficient for the plaintiff to affirmatively allege the citizenship of a defendant is not a citizen of the plaintiff’s state of citizenship. It noted that the fact that the plaintiff and defendant do not share the same state of citizenship usually establishes diversity without requiring the plaintiff to allege the defendant’s precise state of citizenship – especially when not all the facts are known at the time the complaint is filed.

However, in order to survive a Rule 11 sanction, the Court held that the plaintiff must conduct a reasonable inquiry into the facts alleged in the pleading by consulting all public records at its disposal, including other court filings, to be able to state in good faith that diversity exists. Thereafter, the LLC defendant, who is in the best position to ascertain its own members and their citizenship, may mount a factual challenge by identifying any members that would destroy diversity. If a defendant does challenge diversity, then the Third Circuit held that the plaintiff would be entitled to limited discovery for the purpose of establishing complete jurisdiction exists.

Based upon this case, it will now be much easier to file suit against an LLC defendant in federal court. It is typically very difficult to identify, yet know the states of citizenship of members of an LLC before filing suit. Further, the district courts have not been receptive to limited discovery to establish if diversity does exist. This Third Circuit case eases the pleading standard to sue an LLC, as well as permitting a plaintiff limited discovery, in the event there is a challenge to diversity.

In Ross v. Lowitz, 2015 N.J. LEXIS 819 (2015), plaintiffs John and Pamela Ross appealed to the New Jersey Supreme Court the dismissal of a lawsuit they filed against their neighbors and their neighbors’ insurance companies, claiming that their property was damaged when home heating oil from their neighbor’s leaking underground oil storage tank migrated to their property. They sued the homeowners based upon various theories of negligence, nuisance, and the New Jersey Spill Act. They also sued the neighbor’s insurers in a bad faith claim, alleging a breach of the implied covenant of good faith and fair dealing.

The insurers did agree to pay for the remediation to the plaintiffs’ property. However, they did not arrange for such remediation until plaintiffs filed suit. Thus, there was about a 2 year delay from when the insurers allegedly agreed to remediate their property and when the actual remediation occurred.

The plaintiffs claimed that this 2 year delay by the insurers was a breach of their neighbors’ insurance policies. Further, they alleged that they were third party beneficiaries of the policies and could sue the carriers for a bad faith claim directly.

The trial court and the Appellate Division found that the plaintiffs did not have the right to sue the carriers directly without an assignment of rights. The Supreme Court affirmed this decision and dismissed the lawsuit against the carriers.

The Supreme Court pointed out that, as a general rule, a stranger to an insurance policy has no right to recover the policy proceeds. With an assignment, however, a third party may assert a bad faith claim against an insurer. Here, there was no assignment but, the plaintiffs contended that they were third party beneficiaries of their neighbor’s insurance policies and that the insurers breached their duty by delaying the remediation of their property.

To be a third party beneficiary under a contract, the third party would have to establish that they were the intended beneficiary of the contract. The Supreme Court noted that, in New Jersey, an insurer’s duty of good faith and fair dealing has never been applied to recognize a bad-faith claim by an individual or an entity that is not the insured or an assignee of the insured’s contract rights.

Here, there was no suggestion that the parties to the insurance contracts at issue intended to make the plaintiffs, the neighbors of the insured, a third party beneficiary of their policies. Further, the Court found that the migration of oil to their property did not confer third-party beneficiary status upon them. The duty of good faith and fair dealing in this case extended only to the insured, not to the plaintiffs. Thus, the Supreme Court found no basis for plaintiffs’ bad faith claims against their neighbors’ insurers.

Plaintiff, the employee of a subcontractor, sued the general contractor for negligence after he suffered serious injury while working at the jobsite.  In Fernandes v. DAR Development Corp., 2015 N.J. LEXIS 811 (N.J. 2015), the Supreme Court of New Jersey considered whether the negligence of an employee injured in a workplace accident may be submitted to the jury.

Plaintiff was installing a sewer pipe on a residential construction site when the wall of the trench in which he was working collapsed, burying him up to his chest.  The jury returned a verdict in favor of the Plaintiff after the court rejected the general contractor’s request to instruct the jury on comparative negligence.  The jury’s verdict was later affirmed by the Appellate Division.

Plaintiff presented evidence that the general contractor violated Occupational Health and Safety Act regulations, which required a general contractor to prevent cave-ins by installing a trench protection system known as a trench box.  In response, the general contractor presented evidence that Plaintiff was an experienced trench worker who was well aware of the hazards associated with excavation and the necessary safety precautions.

The general contractor argued that the jury should be permitted to consider Plaintiff’s negligence based on his entry into the trench on the day of the accident, which it reasoned was unreasonable conduct in light of Plaintiff’s extensive excavation experience, his understanding of the hazards associated with trench excavation, and his occasional responsibility for deciding when it was necessary to use trench protection.  Plaintiff countered that, as a matter of public policy, comparative negligence had no place in a trial dealing with injuries sustained by a worker while performing his assigned task.  Plaintiff further argued that the evidence adduced at trial did not suggest that Plaintiff unreasonably proceeded in the face of a known risk.

In 1973, the New Jersey Legislature adopted the Comparative Negligence Act, which allowed a plaintiff to recover so long as his negligence was not greater than the negligence of the person against whom recovery is sought.  If the injured party is permitted to recover, his damages will be diminished by the percentage of negligence attributable to him.  Under the Appellate Division’s decision in Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 29 (App. Div. 1994), this rule extends to an employee who is injured in a workplace accident and sues a third person in an ordinary negligence action.  Under Kane, the inquiry is whether the plaintiff failed to use the care of a reasonably prudent person under all of the circumstances either in incurring the known risk or in the manner in which he proceeded in the face of that risk.

The Supreme Court noted that a jury may consider a plaintiff’s negligence only when the evidence adduced at trial suggests that the plaintiff was somehow negligent and that negligence contributed to the plaintiff’s damages.  Whenever a party asserts a plaintiff is negligent, the defendant must prove that the plaintiff’s negligence contributed to the accident or was a substantial contributing factor to the injuries sustained.

Here, the Supreme Court found it abundantly clear that Plaintiff did not proceed unreasonably in the face of a known risk.  There was no evidence that Plaintiff knew that surrounding conditions were such that the risk of collapse was increased.  Plaintiff received no training about workplace safety from the general contractor or his employer.  Furthermore, Plaintiff had no opportunity to independently assess the stability of the trench.

The Supreme Court found that Plaintiff’s boss was the “competent person” on the jobsite, who thus bore the duty of inspecting the excavation work to determine if a cave-in was likely.  Regardless of Plaintiff’s years of experience or actual knowledge of the danger of this particular excavation, the burden of deciding when and where to take protective measures rested squarely with his boss, the “competent person,” and with the general contractor.  Because there was no evidence that Plaintiff failed to act with the care of a reasonably prudent person in choosing to complete his assigned task on the day of the accident, the Supreme Court affirmed the judgment of the Appellate Division.

Typically, in a personal injury suit alleging bodily injury in a premises liability case, the plaintiff would need to prove that the business owner had actual or constructive notice of the dangerous condition that caused the accident. If the “mode of operation” rule applies, the plaintiff is relieved of this burden and is entitled to an inference of negligence. In Prioleau v. Kentucky Fried Chicken, 2015 N.J. LEXIS 957 (Sept. 28, 2015), the New Jersey Supreme Court was asked to decide if this rule should be applied to the defendant Kentucky Fried Chicken’s operations.

This rule has been applied in self-service settings in which it is reasonably foreseeable that customers will interact directly with products or services, unassisted by the defendant or its employees. The rationale is that this business model, that encourages self-service on the part of the customer, is of benefit to the business, but creates a risk of harm to the customer. Because this business practice creates an inherent danger to the customer, the plaintiff does not need to prove that the business owner had actual or constructive notice of the dangerous condition.

In Prioleau, the plaintiff had stopped to have dinner at the KFC with her children. It was raining outside. After entering the restaurant, the plaintiff headed to the restroom. As she approached the restroom, she slipped and fell on what felt like a greasy, wet floor. As a result, she suffered a back injury and sued KFC for her injuries.

At trial, the trial court judge charged the jury with the mode of operation rule, based upon the plaintiff’s argument that oil may have been tracked in from the restaurant kitchen to the floor near the restroom. Thus, the plaintiff was relieved of the burden to show that the defendant had notice of the unsafe condition.

The defendant appealed and the Appellate Division reversed and remanded for a new trial. However, one of the judges dissented, giving the plaintiff an appeal as of right to the Supreme Court.

The Supreme Court agreed with the majority opinion of the Appellate Division. It found that the mode of operation rule applies only in situations where the customer serves himself or herself or otherwise directly engages with products or services unsupervised by an employee. Here, there was no evidence that the plaintiff’s accident bears any relationship to any self-service component of this business. Even if it was caused by the employees tracking oil and grease from the kitchen to the restroom area, it resulted from the preparation of food in the kitchen, an area off limits to patrons, and a component of the business in which customers played no part.

Because plaintiff’s theories of liability did not involve a self-service operation, it did not merit a mode of operation charge. Thus, defendant KFC was entitled to a new trial on the issue of liability.

On July 18, 2008, a fire ignited in the Khatri home, a multi-family dwelling, resulting in damage to the house as well as surrounding properties and serious bodily injury to an upstairs tenant and a firefighter responding to the fire. Khatri had a $300,000 homeowners policy with NJM. In Doitch v. Khatri, 2015 N.J. Super. Unpub. LEXIS 2134  (App. Div. Sept. 3, 2015), Khatri filed a third party action against NJM for failing to cover a claim after NJM had exhausted its policy limits in paying these claims.

Following the fire, Khatri faced multiple claims and lawsuits. Between property damage and bodily injury claims filed, claimants sought a total of more than $7.5 million in damages against him.

After NJM paid one small claim, $290,501 remained on the policy. A month before trial, the 3 remaining claimants agreed to take the policy limits for the remainder of the policy limits. NJM notified Khatri of the proposed settlement and also advised him that it was aware of one other property subrogation damage claim from State Farm in the amount of $36,000. This claim was for damage claimed by a tenant, Sharon Masgay-Doitch, for her contents. That claim was denied years before and NJM had heard nothing since from State Farm.

NJM recommended the settlement to its insured (Khatri) because a recovery would likely exceed the insured’s policy limits. However, it made the insured aware that this potential State Farm claim would not be satisfied with this settlement. Khatri did not object and these 3 claims were settled, exhausting the policy limits.

Based upon the language of NJM’s policy, its duty to settle or defend ended when it paid for damages from an occurrence that equaled its limit of liability. Further, its total liability for all damages from any one occurrence will not be more than the limit of its liability.

Three months after the settlement, NJM received notice that Masgay-Doitch filed suit against Khatri and then State Farm filed suit against Khatri about 10 months thereafter. Khatri filed this third party suit, demanding that NJM indemnify and defend him as to these claims. Khatri argued that NJM’s failure to defend was a breach of his insurance policy.

The trial court granted NJM summary judgment and dismissed the suit. The Appellate Division affirmed.

Khatri argued that NJM had a duty to initiate and engage in settlement negotiations with Masgay-Doitch before settling for its policy limits. However, absent bad faith, an insurer may settle with one or more claimants, even if the settlements may exhaust the policy limits. Here, the Appellate Division found no evidence of bad faith.

To the contrary, NJM negotiated a very favorable settlement within the $300,000 policy limits in a suit that exceeded $7.5 million. The court found unpersuasive the plaintiff’s argument that NJM should have proactively searched for other claims to include in the settlement, in light of the magnitude of the pending claims in the lawsuit. Further, the court pointed out that the insured knew that the global settlement would exhaust the policy limit and would not include the Masgay-Doitch claim – yet the insured nevertheless agreed with the proposed course of action.

Thus, the Appellate Division found nothing to suggest that NJM acted in bad faith or breached its duty owed to its insured. Hence, it determined that summary judgment was properly granted to NJM.

Insurance policies typically do not permit assignment of the policy to third persons without the insurer’s consent. In Givaudan Fragrances Corp. v. Aetna Casualty & Surety Co., 2015 N.J. Super. LEIXS 131 (App. Div. Aug. 12, 2015), in a published decision, the Appellate Division decided the issue as to whether the plaintiff may be assigned the rights under insurance policies issued years earlier to one of the assignor’s predecessor corporations.

These insurance policies were issued to a predecessor corporation (Givaudan Corporation) between 1964 and 1986. It later merged into the Givaudan Flavors Corporation. The plaintiff claimed that, due to an assignment, it was covered by such policies. The insurers disputed the claim and contended that the plaintiff was not insured under any of the policies.

This case involved environmental claims against the plaintiff for a hazardous discharge of a predecessor corporation. In August 2004, the plaintiff was notified by the EPA of potential liability under CERCLA for such discharge. In 2005, the DEP commenced an action against several companies that had operated sites within the contaminated area. In February 2009, two of the defendants in this DEP action filed third-party contribution claims against more than 300 entities, including the plaintiff.

In March 2010, the Givaudan Flavors Corp. (“Flavors”), a successor by merger to the Givaudan Corp., assigned its rights to these policies to the plaintiff Givaudan Roure Fragrances Corp. (“Fragrances”), the entity sued in this DEP action. Hence, Fragrances claimed that it was an insured under these policies.

The Appellate Division pointed out that these policies were occurrence policies. Once the occurrence takes place, coverage attaches even though the claim may not be made for years afterwards. While these policies contained provisions that they could not be assigned without the insurer’s consent, once a loss occurs, an insured’s claim under a policy may be assigned without the insurer’s consent.

The purpose of a no assignment clause is to protect the insurer from having a different risk than what the insured intended when it issued the policy. However, if there is an assignment after a loss has occurred, the insurer’s risk is the same because the liability of the insurer becomes fixed at the time of the loss. Moreover, at that point, an assignment of rights to collect under a policy is not a transfer of the actual policy but a transfer of the right to a claim of money.

The Appellate Division found that any loss that occurred during the policy period of any of the policies, clearly occurred long before the assignment in 2010. Thus, Flavors did not require the insurer’s consent to assign its rights under the policies. Thus, the court found that the carriers were obligated to provide coverage to the plaintiff.

The Plaintiff Joan Mernick was involved in an automobile accident and sued the defendants Wanda McCutchen and Hudson News Distributors for her injuries. The defendants conducted surveillance of the plaintiff on 9 separate occasions and so advised the plaintiff in answers to interrogatories. In Mernick v. McCutchen, 2015 N.J. Super. LEXIS 143 (App. Div. Sept. 3, 2015), the plaintiff’s attorney insisted on viewing the videotapes before he would produce the plaintiff for a deposition.

Surveillance videos can be powerful tools used to impeach a plaintiff in a personal injury action. Defendants typically do not want to produce the videos before the plaintiff is deposed.

Because the plaintiff refused to be deposed before the videos were produced, the defendants moved to the trial court to compel her deposition. The plaintiff cross-moved to require the production of the surveillance videos. The trial court found the videos to be work product. However, the trial court ordered their production on the basis that they were unique evidence that could not be obtained by other means. Thus, the plaintiff established undue hardship in acquiring a substantial equivalent of the relevant surveillance recordings and  the defendants were ordered to produce the tapes immediately.

The defendants sought leave to appeal on an interlocutory basis and the Appellate Division granted leave, along with a stay. After considering the arguments, the Appellate Division reversed the trial court decision.

The court found that this issue was governed by the New Jersey Supreme Court case of Jenkins v. Rainner, 69 N.J. 50 (1976). Jenkins made it clear that the defendants with a surveillance video were permitted to depose the plaintiff about the activities it had filmed before turning it over in order to preserve the evidentiary value of the video.

The Appellate Division found that Jenkins was still good law, even though decided many years ago. Since Jenkins, no other New Jersey cases have addressed this exact issue. Although in Jenkins, the video was taken after the plaintiff’s deposition had been conducted, the court directed that the films be provided after a second deposition limited to damages. The Appellate Division could find no facts that distinguished this case from Jenkins. Hence, it concluded that the trial court mistakenly exercised its discretion in departing from the Jenkins general rule and found that the videos did not need to be produced until after the plaintiff was deposed.

There is often a dispute between the parties as to the fee charged by the opposing expert for a discovery deposition, which must be paid by the party requesting the deposition. Specialists sometimes charge exorbitant flat fee rates and counsel argue over which party must pay that fee. In a recently published Law Division decision, just approved for publication on August 26, 2015, Jusino v. Lapenta, 2014 N.J. Super. LEXIS 192  (Law Div. May 23, 2014), Judge Savio (Atlantic County) refused to require the defendant to pay the flat fee charged by the plaintiff’s neurosurgeon for his discovery deposition.

In Jusino, the defendant noticed the discovery deposition of the plaintiff’s expert, Dr. Andrew Glass, a board certified Neurological Surgeon, and inquired as to his fee schedule. The plaintiff responded that Dr. Glass’s current fee for attending a discovery deposition was $1000/hour with a 3 hour minimum fee of $3000, as well as a $500 preparation fee and if there were excessive medical records to review, excessive time requirement fees may apply.

The defendant refused to pay for any of the preparation time and protested the amount of the attendance fee. Defendant suggested that a reasonable fee should be between $300 to $400/hour. When the plaintiff refused to produce Dr. Glass unless the defendant agreed to pay Dr. Glass his proposed attendance fee in advance of the deposition, the defendant moved to have the court set the fee for him to attend.

Judge Savio pointed out that there was no published or unpublished opinion in the New Jersey Supreme Court or Appellate Division defining the term “reasonable fee” as the words are used in the civil rules governing expert depositions. The only reported decision was a 30 year old Law Division decision that found that $200/hour was a reasonable fee to pay a physician to be deposed.

The court rejected the plaintiff’s suggestion that the defendant be required to pay Dr. Glass to prepare for his deposition. Judge Savio found that it was the plaintiff’s responsibility to pay for his preparation.

The plaintiff argued that the court should consider the fee schedules of 3 other neurosurgeons in the Southern New Jersey region in setting a reasonable fee for Dr. Glass. These other physicians charged even more than Dr. Glass for their depositions. Regardless, Judge Savio found that the issue was not how much money the expert charges for the deposition or what a majority of similarly credentialed experts charged but what is a reasonable amount of money for an opponent to pay the expert for attending a deposition.

The court determined that the plaintiff had not met her burden that Dr. Glass’s flat fee of $3000 was reasonable. Judge Savio assumed that Dr. Glass would generate at least $750/hour while performing services as a neurosurgeon. Hence, the court ordered that the defendant pay $750 for the first hour and an additional $750 for each hour or portion of each hour of his deposition after the first hour. The court denied the request for a prepayment fee.

The upshot of this ruling is that the plaintiff (or whomever is the party producing the expert) would responsible to front any prepayment and to pay the balance between the fee charged by the expert and the amount to be paid by the opposing party. It is not clear, however, how the court arrived at the rate of $750/hour to be generated by a neurosurgeon in his daily practice. Nevertheless, this case may provide guidance in future disputes over the payment of expert fees for a discovery deposition.

This week’s article was written by my Litigation Department associate Charles F. Holmgren, Esq.

While an insurance company may appear to be in the clear when it has successfully rescinded an insurance policy as a result of the insured’s fraud, it may still be liable to an innocent third party under that same policy. As shown in the New Jersey Supreme Court case Citizens United Reciprocal Exch. (CURE) v. Perez, A-67-13 (N.J. Aug. 13, 2015), an insurer is still liable to an innocent third party for the minimum amount bargained for by the insured, despite the policy’s rescission by the insurer.

The Perez case arose as a result of an automobile insurance policy for which the defendant, Sabrina Perez, purchased from the plaintiff, CURE. Ms. Perez opted for the “basic” coverage policy, as well as a $10,000 limit against third party bodily injury claims. Despite the policy requiring her to name all individuals in her household of driving age, she did not include Luis Machuca. About a month after CURE issued the policy, Mr. Machuca, while driving Ms. Perez’s vehicle, was involved in an automobile accident with Dexter Green. Mr. Green filed a personal injury lawsuit against Ms. Perez’s policy. CURE denied Mr. Green’s claim and voided Ms. Perez’s policy from its outset due to her fraudulent failure to list Mr. Machuca as a household member. CURE then filed a declaratory judgment action asking the court to find it had no obligation to cover the innocent third-party claim of Mr. Green.

Though both the trial court and the Appellate Division both found that the policy could be rescinded and voided, they determined that when the policy is voided due to the insured’s fraudulent misrepresentations, innocent third parties are entitled to the state mandated minimum policy coverage of $15,000. The Supreme Court disagreed. The Supreme Court found that the insurance company can only be held liable for the minimum amount it contracted with its insured. While New Jersey law holds that an insurance policy may be rescinded due to misrepresentation, that rescission does not mean an insurer can escape liability to innocent third parties. Thus, a claimant under an automobile policy must be evaluated as if he had the status to which he would have been entitled but for the fraudulent application of the named insured.

Therefore, here, CURE is not wholly absolved of any liability to Mr. Green as a result of Ms. Perez’s fraudulent application, despite the voiding of her policy. While CURE is not liable for the state mandated minimum limits of $15,000, it is liable for Ms. Perez’s option for the policy’s third party coverage of $10,000. This determination strikes a balance between the basic policy considerations of providing innocent third parties coverage under a tortfeasor’s insurance policy and limiting the liability of an insurance company as a result of its insured’s fraudulent misrepresentations.

Under the Insurance Fraud Prevention Act (“IFPA”), an insurance company may sue to recover compensatory damages against those who commit insurance fraud. In Allstate Insurance Co. v. Lajara, 2015 N.J. LEXIS 797 (2015), Allstate sue 63 defendants alleging violations of the IFPA. It claimed that the defendants (doctors, billing companies, employees and shareholders of these companies) engaged in a broad scheme to defraud Allstate of $8.14 million in personal injury benefits. The issue in the Lajara case was whether the defendants were entitled to a jury trial.

The trial court and the Appellate Division found that there was no right to a jury trial. The defendants appealed to the New Jersey Supreme Court. The Supreme Court examined whether this right was implicit in the statutory scheme or, alternatively, was mandated under the New Jersey Constitution.

Allstate argued that the IFPA did not specifically provide the right to a jury trial within the statute and, thus, the legislature did not intend to give this right to any defendants sued under this statute. Further, it claimed that the remedies under this law are equitable in nature, which are not constitutionally entitled to a jury trial.

The Supreme Court pointed out that the right to a jury trial is deeply rooted in the English common law and traces its origins as far back as the Magna Carta. This common law tradition was carried over to the American colonies and became a fundamental right. The New Jersey Constitution does contain the right to a jury trial. However, it was never intended to guarantee a right to a jury trial in all civil cases. Rather, the right applies to only claims that are based in law, rather than in equity. Those claims that seek relief in the form of monetary damages, as opposed to equitable relief (such as an injunction) would be “legal” versus  “equitable” claims.

The remedies available to an insurance company for a violation of the IFPA are compensatory damages, treble damages, attorneys fees and costs.  Hence, the relief available to an insurance company under this Act is legal in nature.

The Supreme Court also likened a claim under the IFPA to a common law fraud claim, under which a defendant does have the right to a jury trial. Although its elements are not perfectly aligned, the Court stated that is not necessary to trigger this right.

Hence, it concluded that the Legislature did not intend that in an IFPA action would be inconsistent with the rights granted under our State Constitution. Because the Legislature provided for legal remedies in this statute, it can be inferred that it intended to authorize a jury trial. Thus, it reversed the Appellate Division and remanded the matter back to the trial court for a jury trial.