(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
ROBIN BRILL V. THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, ET AL. (A-123-94)
Argued May 2, 1995 -- Decided October 24, 1995
COLEMAN, J., writing for a unanimous Court.
On June 15, 1989, Robert Brill met with his insurance broker, Charles Gould, of the KRA Insurance
Agency, Inc. (KRA) and informed Gould that he wanted a $750,000 term life policy as soon as possible. Gould
explained that there was a three-step process before securing a policy: 1) completing and signing an application,
2) undergoing a medical examination, and 3) giving a "binder check." Gould explained that there was a four to
six week review process before a policy could be issued by Guardian Life Insurance Co. (Guardian). Brill had
been treated for chronic stomach problems and expressed concern that Guardian might issue him a rated policy
(one surcharged with an additional premium), which he did not want. Brill signed the application after Gould
recorded certain information. Brill would not give a deposit to the insurance company before he knew a
standard policy would be issued.
The application stated that Brill's policy would become effective on delivery of the policy to the named
insured. The application also contained a provision for coverage prior to delivery of the policy called the
conditional receipt. Under that provision, Brill would have been required to pass a medical examination
conducted on behalf of Guardian in order to be considered "acceptable as a standard risk." In addition, Brill
would have been required to pay one-sixth of the annual premium upon signing the application. Coverage under
the conditional receipt would have existed for sixty days from the date of Guardian's medical examination and
would have 1) provided $500,000 in life insurance, 2) protected against any change in health requirement, and 3)
guaranteed that a standard policy, rather than a rated policy, would be issued in the amount of $750,000. Gould
never advised Brill of this coverage option. Moreover, Gould recorded the incorrect answer to Question 6(b) in
the application, making Brill ineligible for a conditional receipt.
On July 21, 1989, Guardian issued a $750,000 standard life-insurance policy with Brill as the named
insured. Brill's wife, Robin, was the primary beneficiary. The policy was forwarded to Gould who was to
deliver it to Brill. On July 24, 1989, prior to delivery of Guardian's policy, Brill underwent surgery and was
diagnosed with colon cancer and metastatic carcinoma of the liver. On August 25, 1989, Gould delivered the
Guardian policy to Brill and collected the first premium. Brill did not tell Gould about his recent diagnosis and
Gould did not ask Brill whether there was any change in Brill's health since the time of the application. On
June 29, 1990, Brill died as a result of the cancer. Shortly thereafter, Gould, on behalf of Robin Brill, submitted
a claim for the proceeds of the life insurance policy. Guardian denied the claim on the ground that Brill's policy
was "null and void as of its effective date" because of Brill's "change in health" that occurred between the date
of application and receipt of the policy on August 25, 1989.
Robin Brill instituted suit to compel the payment of the face value of the policy. She alleged breach of
contract, bad faith, and breach of fiduciary duty against Guardian. She also alleged negligence and breach of
fiduciary duty against KRA and Gould, individually, contending that Gould was negligent because he failed to
record the correct answer to Question 6(b) and failed to inform Brill of the conditional receipt option.
On May 28, 1993, the trial court granted summary judgment in favor of Guardian, concluding that, as a
matter of law, the policy was null and void because Brill had failed to advise Guardian of a significant change in
his health that occurred between the date of his application and the date of delivery of the policy. The trial court
also granted Robin Brill's motion for summary judgment against Gould and KRA in the amount of $750,000.
The court found that Gould incorrectly recorded the answer to Question 6(b) on Brill's application, causing Brill
to become ineligible for the conditional-receipt coverage that would have rendered moot the change-in-health
feature of the policy, and that Gould failed to tell Brill of the conditional-receipt option.
KRA and Gould appealed. The Appellate Division affirmed the grant of summary judgment
substantially for the reasons articulated by the trial court. The Supreme Court granted KRA's and Gould's
petition for certification.
HELD: When deciding a motion for summary judgment under Rule 4:46-2, the determination whether there
exists a genuine issue with respect to a material fact challenged requires the motion judge to consider
whether the competent evidential materials presented, when viewed in the light most favorable to the
non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. This
assessment of the evidence is to be conducted in the same manner as that required under Rule 4:37-2(b).
1. Under Rule 4:46-2, a court should deny a summary judgment motion only where the party opposing the
motion has come forward with evidence that creates a "genuine issue as to any material fact challenged." A non-moving party cannot defeat a motion for summary judgment merely by pointing to any fact in dispute; if the
disputed issues of fact are of an insubstantial nature, summary judgment is proper. Matsushita, Liberty Lobby
and Celotex, recent federal cases, have adopted a standard that requires the motion judge to engage in an
analytical process essentially the same as that necessary to rule on a motion for a directed verdict: whether the
evidence presents sufficient disagreement to require submission to a jury or whether it was so one-sided that one
party must prevail as a matter of law. That weighing process requires the court to be guided by the same
evidentiary standard of proof that would apply at the trial on the merits when deciding whether there exists a
"genuine issue" of material fact. (pp. 9-18)
2. The only distinction between directed verdicts pursuant to Rules 4:37-2(b), 4:40-1, and 4:40-2 and summary
judgment that allows a Rule 4:37-2(b) weighing of the evidence to determine if a genuine issue of material fact
exists, is that summary judgment motions are generally decided on documentary-evidential materials while
directed verdicts are based on evidence presented during trial. However, the essence of the inquiry in each is the
same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law. (pp. 18-22).
3. A subcommittee of the Civil Practice Committee assigned to study summary judgment practice believes that
incorporating the Liberty Lobby-Celotex rule into our summary judgment rule might be helpful. That proposed
change has been approved by the Committee as of May 24th for inclusion in its next report. The Court adopts
the following standard: under Rule 4:46-2, when deciding a summary judgment motion, trial courts are required
to engage in the same type of evaluation, analysis or sifting of evidential materials as required by Rule 4:37-2(b)
in light of the burden of persuasion that applies if the matter goes to trial. Accordingly, the Civil Practice
Committee is to recommend appropriate rule changes, on an expedited basis, that are necessary to implement this
standard. (pp. 22-27)
4. The trial court properly concluded that the evidence presented by KRA and Gould did not create a "genuine
issue" of material fact under Rule 4:46-2. The competent evidential material presented leaves no doubt that
Gould failed to advise Brill of the availability of a conditional receipt. As a matter of law, that failure
constituted a breach of the duty Gould owed to Brill. Further, the record amply demonstrates that Gould's
negligence was a proximate cause of damages to Robin Brill in the amount of $750,000. (pp. 27-32)
5. The rule adopted today shall apply to this case and all cases pending in the trial and appellate courts
involving unresolved issues concerning summary judgment, including those cases in which summary judgment
was denied previously. (p. 33)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI
and STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
A-
123 September Term 1994
ROBIN BRILL,
Plaintiff-Respondent,
v.
THE GUARDIAN LIFE INSURANCE COMPANY
OF AMERICA, a corporation of the
State of New York,
Defendant,
and
KRA INSURANCE AGENCY, INC., a
corporation of the State of New
Jersey, and CHARLES R. GOULD,
Defendants-Appellants.
Argued May 2, 1995 -- Decided October 24, 1995
On certification to the Superior Court,
Appellate Division.
Marc L. Dembling argued the cause for
appellants (Berlin, Kaplan, Dembling & Burke,
attorneys).
Robert Novack argued the cause for respondent
(Budd Larner Gross Rosenbaum Greenberg &
Sade, attorneys; Mr. Novack and Mary L.
Moore, on the brief).
The opinion of the Court was delivered by
COLEMAN, J.
This appeal involves a claim of negligence against a life-insurance broker and his agency for failing to advise a
prospective insured of the possibility of securing immediate,
temporary coverage upon completion of the application process.
The trial court granted summary judgment holding the broker and
his agency liable for the face value of the policy. The
important question raised is whether the trial court incorrectly
granted a summary judgment motion in favor of the insured. A
subset of that question is whether the trial court engaged in an
impermissible weighing of evidence to determine whether a genuine
issue of material fact existed.
We hold that when deciding a motion for summary judgment
under Rule 4:46-2, the determination whether there exists a
genuine issue with respect to a material fact challenged requires
the motion judge to consider whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party in consideration of the applicable
evidentiary standard, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party. This assessment of the evidence is to be
conducted in the same manner as that required under Rule 4:37-2(b).
Because the case was disposed of in a summary judgment proceeding, our statement of the facts is based on our consideration of the evidence in the light most favorable to the parties opposing summary judgment. Dairy Stores, Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125, 135 (1986); Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).
In June 1989, Robert Brill, thirty-seven years old at the
time with a wife and two minor children, decided his $10,000 in
life insurance with Prudential was inadequate. He contacted his
broker, Charles Gould, of the KRA Insurance Agency, Inc. (KRA),
to purchase an additional $750,000 in term-life insurance.
Gould met with Brill on June 15, 1989, at Brill's office.
Brill told Gould that he wanted a $750,000 term policy as soon as
possible. Gould explained that a three-step process had to be
completed before securing a policy: 1) completing and signing an
application, 2) undergoing a medical examination and 3) giving a
"binder check." Gould explained that the process would require
about four to six weeks to complete an underwriting review before
a policy would be issued by Guardian Life Insurance Co.
(Guardian).
Gould read the application questions to Brill and recorded
Brill's responses. Brill informed Gould that he had been treated
for chronic stomach problems that were believed to have been
caused by an ulcer. Brill expressed some concern that Guardian
would issue him a rated policy (one surcharged with an additional
premium). Gould's response was that Guardian would conduct its
own medical investigation into Brill's health, and if a rated
policy was issued "we'll deal with it then." Brill signed the
application after Gould recorded the information.
At or about the time of completion of the application, Gould
asked for a deposit. Brill, however, was unwilling to give money
to the insurance company before he knew a standard policy would
be issued.
The application stated that Brill's policy would become
effective upon delivery of the policy to the named insured. The
application also contained a provision for coverage prior to
delivery of the policy. Paragraph Eleven of the application
provided:
I . . . further agree that no insurance shall
take effect (except as provided in the
Conditional Receipt if an advance payment has
been made and acknowledged above and such
Receipt issued) unless and until the Policy
has been delivered to and accepted by me
. . . and the first premium paid during the
lifetime and prior to any change in health of
the Proposed Insured as described in this
Application.
However, Gould never advised Brill that he could obtain
coverage virtually immediately in the form of a conditional
receipt. Under the conditional-receipt concept, Brill would have
been required to pass a medical examination conducted on behalf
of Guardian. Passing the medical examination would have
satisfied the requirement of being "acceptable as a standard
risk." In addition, Brill would have been required to pay one-sixth of his annual premium for a standard policy, amounting to
$141.87, upon signing the application.
Coverage under the conditional receipt would have existed
for sixty days from the date of Guardian's medical examination.
Conditional-receipt coverage would have (1) provided $500,000 in
life insurance, (2) protected against any change in health
requirement and (3) guaranteed that a standard policy, rather
than a rated policy, would be issued in the amount of $750,000.
Gould also recorded the incorrect answer to a crucial
question in the application that made Brill ineligible for a
conditional receipt. Question 6(b) asked: "Have you, within the
last 12 months . . . had an electrocardiogram because of chest
pain or any other physical problem or taken medication for
elevated blood pressure?" Gould answered "yes" to that question
because Brill said that he had undergone an electrocardiogram in
preparation for knee surgery that was performed in June 1988.
Gould, however, failed to question Brill concerning the date and
purpose of those procedures. Had he done so, he would have
learned that the electrocardiogram was performed on May 31, 1988,
and the surgery on June 6, 1988. Because both procedures were
more than twelve months before the date of the application, and
because the electrocardiogram was not related to chest pain, the
answer to Question 6(b) should have been "no."
On June 19, 1989, four days after Brill completed his
application, Dr. Mary Mazzarella performed a medical examination
of Brill on behalf of Guardian. Dr. Mazzarella did not discover
any health problems.
On June 28, 1989, Gould mailed Brill's completed application
to Guardian's general agent. The agent then forwarded the
application to Guardian for processing. As a supplement to Dr.
Mazzarella's report, Guardian obtained a statement from Brill's
personal physician, Dr. Jonathon Shapiro. Guardian's records
reflect that Dr. Shapiro saw Brill in May 1989 for abdominal pain
and bowel spasms, and that Dr. Shapiro made "no findings" at that
time.
On July 21, 1989, Guardian issued a $750,000 standard life-insurance policy with Brill as the named insured. Brill's wife,
plaintiff Robin Brill, was the primary beneficiary. After
Guardian issued the policy, it was forwarded to Gould who was to
deliver it to Brill. However, when Gould called Brill's office
to set up a time for delivery, he was told that Brill was out of
the office and would not return until August 20.
The parties agree that if Brill had obtained a conditional
receipt, any change in Brill's health after June 19, 1989, the
date Dr. Mazzarella examined him, would have been immaterial to
the question of coverage under the standard policy.
On July 24, 1989, prior to delivery of Guardian's policy,
Brill underwent a transverse colon resection and a liver biopsy.
Brill was diagnosed post-operatively with colon cancer and
"metastatic poorly differentiated carcinoma" of the liver.
On August 25, 1989, Gould delivered the Guardian policy to
Brill and collected the first premium. Brill did not advise
Gould that he had been diagnosed with and treated for cancer.
Nor did Gould ask Brill whether he had undergone any change in
health since the time of his June 15, 1989, application.
On June 29, 1990, Brill died of metastatic cancer of the
liver and carcinoma of the colon. Shortly thereafter, Gould
notified Guardian's general agent of Brill's death and submitted
a claim on behalf of plaintiff. Guardian denied the claim on the
grounds that Brill's policy was "null and void as of its
effective date" because of the "change in health" experienced by
Brill between the date of his application and receipt of the
policy on August 25, 1989.
Following the denial of the claim for payment under the
policy, plaintiff instituted the present litigation to compel
payment of the face value of the policy. She alleged breach of
contract, bad faith and breach of fiduciary duty against
Guardian. She also alleged negligence and breach of fiduciary
duty against KRA, Guardian's authorized agent, and Gould
individually as agent for KRA. The theory of negligence against
Gould was based on his failure to record the correct answer to
Question 6(b) and the failure to discuss a conditional receipt
with Brill.
On May 28, 1993, the trial court granted summary judgment in
favor of Guardian. The court reasoned that as a matter of law,
the policy was null and void because Brill had failed to advise
Guardian of an "egregious and monumental" change in his health
that occurred between the date of his application and the date of
delivery of the policy.
On the same date, the trial court also granted plaintiff's
motion for summary judgment against Gould and KRA in the amount
of $750,000. The court reasoned that it was "beyond dispute"
that Gould incorrectly recorded the answer to Question 6(b) on
Brill's application, thereby causing Brill to become ineligible
for the conditional-receipt coverage that would have rendered
moot the change-in-health feature of the policy. The court
further stated: "It is beyond dispute, and no jury can find
otherwise that Mr. Gould did not even tell Mr. Brill that the
option was available to him." The court concluded:
Through Gould's negligence, which is
inescapable, Mr. Brill was denied the option
to be bound in such a manner that the change
in health feature of the policy would be
moot. Had Mr. Gould not so behaved, Mr.
Brill would have been bound over for five
hundred thousand dollars until August 25
[1989]. It would have become seven hundred
and fifty thousand dollars.
KRA and Gould appealed and the Appellate Division affirmed
in an unreported opinion substantially for the reasons
articulated by the trial court. We granted KRA's and Gould's
petition for certification.
139 N.J. 288 (1994). We now affirm.
Defendants KRA and Gould argue that the grant of summary judgment against them was improper because the trial judge engaged in an improper "weighing of the facts" and "refused to consider the reasonable inferences to be drawn in favor of the defendant broker." They contend that the evidence presents two genuine issues of material fact: (1) whether Gould deviated from the standard of care required of insurance brokers; and (2) whether his alleged deviation from that standard of care was a proximate cause of damage to plaintiff.
They contend Gould was not negligent based on the opinion of
their expert, insurance broker Armando Castellini, who concluded
that "Gould and KRA did not breach any duty owed to Brill, and
that the agent and agency did not fail to conform to generally
accepted standards and practices in the industry." They argue
that with respect to the issue of proximate cause, the facts
justify an inference that even if Gould had discussed the
conditional-receipt option with Brill, he would not have elected
that option because "he was never going to give any deposit
premium unless and until he had a non-rated policy in his hands."
They also contend that Brill learned of the conditional
receipt option when he reviewed the application before signing it
and that this fact supports an inference of no negligence on the
part of Gould, or, at the very least, creates an issue of
comparative negligence requiring submission of the case to a
jury. See Dancy v. Popp,
114 N.J. 570, 573 (1989).
Rule 4:46-2 provides that a court should grant summary judgment when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."
The federal summary judgment rule, the counterpart to Rule
4:46, provides:
(c) Motion and Proceedings Thereon. The
motion shall be served at least 10 days
before the time fixed for the hearing. The
adverse party prior to the day of hearing may
serve opposing affidavits. The judgment
sought shall be rendered forthwith if the
pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any, show
that there is no genuine issue as to any
material fact and that the moving party is
entitled to a judgment as a matter of law. A
summary judgment, interlocutory in character,
may be rendered on the issue of liability
alone although there is a genuine issue as to
the amount of damages.
[Fed. R. Civ. P. 56(c).]
By its plain language, Rule 4:46-2 dictates that a court
should deny a summary judgment motion only where the party
opposing the motion has come forward with evidence that creates a
"genuine issue as to any material fact challenged." That means a
non-moving party cannot defeat a motion for summary judgment
merely by pointing to any fact in dispute.
Forty-one years ago, this Court recognized that
if the opposing party [in a summary judgment
motion] offers . . . only facts which are
immaterial or of an insubstantial nature, a
mere scintilla, "fanciful, frivolous, gauzy
or merely suspicious," he will not be heard
to complain if the court grants summary
judgment, taking as true the statement of
uncontradicted facts in the papers relied
upon by the moving party, such papers
themselves not otherwise showing the
existence of an issue of material fact.
[Judson, supra, 17 N.J. at 75 (citations
omitted).]
In other words, where the party opposing summary judgment points
only to disputed issues of fact that are "of an insubstantial
nature," the proper disposition is summary judgment. Ibid.
"Substantial" means "[h]aving substance; not imaginary, unreal,
or apparent only; true, solid, real," The Compact Oxford English
Dictionary 1947 (2d ed. 1993), or, "having real existence, not
imaginary[;] firmly based, a substantial argument." The New
Lexicon Webster's Dictionary of the English Language 987 (1987).
See Manalapan Realty, L.P. v. Township Committee Tp. of
Manalapan,
140 N.J. 366, 384 (1995) (holding that a requirement
of being substantially consistent with a master plan does not
mean one hundred percent consistency).
Recently, we emphasized:
[Summary judgment] is designed to provide a
prompt, businesslike and inexpensive method
of disposing of any cause which a
discriminating search of the merits in the
pleadings, depositions and admissions on
file, together with the affidavits submitted
on the motion clearly shows not to present
any genuine issue of material fact requiring
disposition at trial.
[Ledley v. William Penn Life Ins. Co.,
138 N.J. 627, 641-42 (1995) (quoting Judson,
supra, 17 N.J. at 74).]
Today, we focus on how to determine when an alleged disputed issue of fact should be considered "genuine" for purposes of Rule 4:46-2 and when such an issue should be considered "of an insubstantial nature." While "genuine" issues of material fact preclude the granting of summary judgment, R. 4:46-2, those that
are "of an insubstantial nature" do not. Judson, supra, 17 N.J.
at 75.
After early debate about the breadth of the summary judgment
power, the jurisprudence of summary judgment was rather uniform
until 1986. See Jeffrey W. Stempel, A Distorted Mirror: The
Supreme Court's Shimmering View of Summary Judgment, Directed
Verdict, and the Adjudication Process,
49 Ohio St. L.J. 95, 133-44 (1988) (containing discussion of history of summary judgment
practice). In that year the United States Supreme Court upheld
summary judgments in three cases: Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp.,
475 U.S. 574,
106 S. Ct. 1348,
89 L.
Ed.2d 538 (1986), Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,
106 S. Ct. 2505,
91 L. Ed.2d 202 (1986), and Celotex Corp. v.
Catrett,
477 U.S. 317,
106 S. Ct. 2548,
91 L. Ed.2d 265 (1986).
Matsushita was decided in March whereas Liberty Lobby and Celotex
were decided the same day in June. The fact that the Court
addressed the summary judgment standard three times within four
months suggests how significant the issue had become.
Matsushita involved an antitrust case in which American
electronics manufacturers claimed Japanese manufacturers had
conspired to keep prices for their goods high in Japan to finance
predatory pricing policies for goods exported to the United
States. 475 U.S. at 577-78, 106 S. Ct. at 1351, 89 L. Ed.
2d at
546-47. The plaintiffs alleged that the Japanese manufacturers
flooded the American market with television sets and similar
products at very low prices calculated to drive the American
competition out of the market. Ibid. The American manufacturers
contended that over the long term the conspiracy would enable the
Japanese manufacturers to increase their market share and control
the market eventually. Id. at 584, 106 S. Ct. at 1354-55, 89 L.
Ed.
2d at 550-51.
In Matsushita, all of the evidence to support the claim was
circumstantial. The Court concluded that the basis of the
plaintiff's claim was inherently implausible because no
reasonable group of manufacturers would accept certain short-term
losses in a market to gain only the speculative opportunity of
long-term gains. Id. at 588-91, 106 S. Ct. at 1357-58, 89 L. Ed.
2d at 553-55. The Court observed that to recoup their losses,
the Japanese would have to achieve successfully the monopoly
power to set higher prices and then sustain those prices long
enough to offset the earlier losses. Id. at 590-91, 106 S. Ct.
at 1358, 89 L. Ed.
2d at 555. The Court concluded that the claim
was inherently implausible. Ibid.
The majority in Matsushita claimed that no new standard was
applied to summary judgment motions when it concluded that the
judge should determine "the range of permissible conclusions that
might be drawn" from the evidence in determining whether "`a
genuine issue for trial' exists within the meaning of Rule
56(e)." Id. at 596, 106 S. Ct. at 1361, 89 L. Ed.
2d at 558.
Liberty Lobby involved a libel suit filed by a lobbying
corporation and its founder against Jack Anderson, the publisher
of a magazine, as well as against the magazine's president-chief
executive officer, and the magazine itself, alleging they had
libelled plaintiffs. 477 U.S. at 244-45, 106 S. Ct. at 2508, 91
L. Ed.
2d at 209. The claim was based on three articles
published in the magazine that portrayed plaintiffs as neo-Nazi,
anti-Semitic, racist and fascist. Ibid. After completing
discovery, defendants moved for summary judgment pursuant to
Federal Rule of Civil Procedure 56(c). Id. at 245, 106 S. Ct. at
2508,
91 L. Ed.2d 209-10.
In a libel action brought by a public official or public
figure, a plaintiff is required by the First Amendment to prove
that the defendant acted with actual malice and that actual
malice must be shown with "convincing clarity." Id. at 244, 106
S. Ct. at 2507, 91 L. Ed.
2d at 209 (quoting New York Times Co.
v. Sullivan,
376 U.S. 254, 285-86,
84 S. Ct. 710, 728-29,
11 L.
Ed.2d 686, 710 (1964)). In Liberty Lobby, the Court of Appeals
for the District of Columbia found that although actual malice
had to be proved by clear and convincing evidence, rather than by
a preponderance, for purposes of summary judgment that "was
irrelevant: To defeat summary judgment the [plaintiffs] did not
have to show that a jury could find actual malice with
`convincing clarity.'" Id. at 247, 106 S. Ct. at 2509, 91 L. Ed.
2d at 211.
The Supreme Court reversed and established a new standard
for evaluating summary judgment motions under Federal Rule of
Civil Procedure 56(c). It stated:
[W]e are convinced that the inquiry involved
in a ruling on a motion for summary judgment
or for a directed verdict necessarily
implicates the substantive evidentiary
standard of proof that would apply at the
trial on the merits. If a defendant in a
run-of-the-mill civil case moves for summary
judgment or for a directed verdict based on
the lack of proof of a material fact, the
judge must ask himself not whether he thinks
the evidence unmistakably favors one side or
the other but whether a fair-minded jury
could return a verdict for the plaintiff on
the evidence presented. The mere existence
of a scintilla of evidence in support of the
plaintiff's position will be insufficient;
there must be evidence on which the jury
could reasonably find for the plaintiff. The
judge's inquiry, therefore, unavoidably asks
whether reasonable jurors could find by a
preponderance of the evidence that the
plaintiff is entitled to a verdict--"whether
there is [evidence] upon which a jury can
properly proceed to find a verdict for the
party producing it, upon whom the onus of
proof is imposed." [Improvement Co. v.
Munson,
14 Wall. 442, 448,
20 L. Ed. 867
(1872).]
In terms of the nature of the inquiry,
this is no different from the consideration
of a motion for acquittal in a criminal case,
where the beyond-a-reasonable-doubt standard
applies and where the trial judge asks
whether a reasonable jury could find guilt
beyond a reasonable doubt. See Jackson v.
Virginia,
443 US 307, 318-319,
61 L Ed 2d 560,
99 S Ct 2781 (1979). Similarly, where
the First Amendment mandates a "clear and
convincing" standard, the trial judge in
disposing of a directed verdict motion should
consider whether a reasonable factfinder
could conclude, for example, that the
plaintiff had shown actual malice with
convincing clarity.
[Id. at 252, 106 S. Ct. at 2512, 91 L. Ed.
2d
at 214.]
Celotex involved a wrongful-death action against fifteen
asbestos manufacturers. A factual issue was raised with respect
to whether the decedent was exposed to Celotex asbestos products
in Chicago in 1970-1971. 477 U.S. at 319-20, 106 S. Ct. at 2551,
91 L. Ed.
2d at 271-72. The Court held that after passage of
adequate time to complete the discovery, summary judgment should
be granted "against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial." Id. at 322, 106 S. Ct. at 2552, 91 L. Ed.
2d
at 273. Celotex also held that the standard for granting summary
judgment "`mirrors the standard for a directed verdict under
Federal Rule of Civil Procedure 50(a) . . . .'" Id. at 323, 106
S. Ct. at 2552-53, 91 L. Ed.
2d at 273-74 (quoting Liberty Lobby,
supra, 477 U.S. at 250, 106 S. Ct. at 2511, 91 L.Ed.
2d at 213).
Thus, Celotex established a weighing process in non-defamation
summary judgment cases.
Read together, Matsushita, Liberty Lobby and Celotex adopted
a standard that requires the motion judge to engage in an
analytical process essentially the same as that necessary to rule
on a motion for a directed verdict: "whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as
a matter of law." Liberty Lobby, supra, 477 U.S. at 251-52, 106
S. Ct. at 2512, 91 L. Ed.
2d at 214. That weighing process
requires the court to be guided by the same evidentiary standard
of proof -- by a preponderance of the evidence or clear and
convincing evidence -- that would apply at the trial on the
merits when deciding whether there exists a "genuine" issue of
material fact. Id. at 254-56, 106 S. Ct. at 2513, 91 L. Ed.
2d
at 215-16.See footnote 1
Dairy Stores, supra, 104 N.J. at 125, was decided only four
months after Liberty Lobby and Celotex. We noted in Dairy
Stores, id. at 155-56, that we were not bound to follow the rule
announced in Liberty Lobby. We reasoned that Dairy Stores
involved actual malice as a common-law bar to the defense of fair
comment, while Liberty Lobby involved actual malice as a
constitutionally mandated component of a defamation action
brought by a public official or public person. Ibid. See
Schwartz v. Worrall Publications, Inc.,
258 N.J. Super. 493, 500-01 (App. Div. 1992) (noting that Dairy Stores dictates that the
test for summary judgment in defamation cases differs depending
on whether actual malice is implicated as a common-law concept or
as a constitutionally required component of the cause of action).
Eight years after our decision in Dairy Stores, we again had
occasion to address the appropriate standard governing summary
judgment in a defamation case involving the element of actual
malice. Costello v. Ocean County Observer,
136 N.J. 594 (1994).
Costello differed from Dairy Stores in that the plaintiff in
Costello, unlike the plaintiff in Dairy Stores, was a "public
figure." Costello, supra, 136 N.J. at 614. That mandated
application of Liberty Lobby. Offering no comment or criticism,
we merely recited the test as follows:
To determine whether a genuine issue of
material fact exists regarding actual malice,
a court must consider whether the plaintiff
has produced the "quantum and quality of
proof" necessary under the New York Times v.
Sullivan standard. [Schiavone Constr. Co. v.
Time, Inc.,
847 F.2d 1069, 1089 (3d Cir.
1988)] The plaintiff must demonstrate that a
reasonable jury could conclude that "clear
and convincing" evidence exists that the
defendants published the article with actual
malice. [Liberty Lobby, supra, 477 U.S. at
254-55, 106 S. Ct. at 2513, 91 L. Ed.
2d at
215-16.]
[Costello, supra, 136 N.J. at 614.]
We concluded: "Applying the actual-malice standard through the
prism of summary judgment, Schiavone, supra, 847 F.
2d at 1091, we
find that even when considering the evidence in the light most
favorable to [the plaintiff], a reasonable factfinder could not
find `clear and convincing' evidence of [defendant's] actual
malice." Id. at 618 (citing Liberty Lobby, supra, 477 U.S. at
255, 106 S. Ct. at 2513-14, 91 L. Ed.
2d at 216).
Analytically, tying the test for summary judgment determinations to the question of what reasonable conclusions a rational jury can draw from the evidence is similar to an
involuntary dismissal under Rule 4:37-2(b). We recognized as
much in Dairy Stores, supra, 104 N.J. at 156. The standard for
determining a motion for an involuntary dismissal under Rule
4:37-2(b) is the same as the standard for determining motions
under Rule 4:40-1, and Rule 4:40-2. The motion
must be denied "if the evidence, together
with the legitimate inferences therefrom,
could sustain a judgment in plaintiff's
favor." R. 4:37-2(b); see S. Pressler,
Current N.J. Court Rules, R. 4:40-2 comment
(1991). In each case, "the court must accept
as true all the evidence which supports the
position of the party defending against the
motion and must accord him [or her] the
benefit of all legitimate inferences which
can be deduced therefrom, and if reasonable
minds could differ, the motion must be
denied." S. Pressler, supra, R. 4:40-2
comment (1991); see Dolson v. Anastasia, [
55 N.J. 2, 5-6 (1969).]
[Lanzet v. Greenberg,
126 N.J. 168, 174
(1991).]
Evers v. Dollinger,
95 N.J. 399 (1984), expressed the
standard for deciding Rule 4:37-2(b) motions more succinctly when
it observed that courts should "treat plaintiff's proofs as
uncontradicted, both as to liability and damages." Id. at 402.
The same standard applies to determine whether a prima facie case
has been established by the party bearing the burden of proof in
a trial. "[T]he court must look at the evidence and inferences
which may reasonably be deduced therefrom in a light most
favorable to the plaintiff, and if reasonable minds could differ
as to whether any negligence had been shown, the motion should be
denied." Bell v. Eastern Beef Co.,
42 N.J. 126, 129 (1964).
The only distinction between 1) a directed verdict at the
end of plaintiff's case pursuant to Rule 4:37-2(b), 2) a directed
verdict pursuant to Rule 4:40-1 after all the evidence has been
presented, 3) a judgment notwithstanding the verdict pursuant to
Rule 4:40-2, and a summary judgment that allows a Rule 4:37-2(b)
weighing of evidence to determine if a genuine issue of material
fact exists, is that summary judgment motions are generally
decided on documentary-evidential materials, while the directed
verdicts are based on evidence presented during a trial. Under
our holding today, the essence of the inquiry in each is the
same: "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Liberty Lobby,
supra, 477 U.S. at 251-52, 106 S. Ct. at 2512, 91 L. Ed.
2d at
214.
Of course, there is in this process a kind of weighing that
involves a type of evaluation, analysis and sifting of evidential
materials. This process, however, is not the same kind of
weighing that a factfinder (judge or jury) engages in when
assessing the preponderance or credibility of evidence. On a
motion for summary judgment the court must grant all the
favorable inferences to the non-movant. But the ultimate
factfinder may pick and choose inferences from the evidence to
the extent that "a miscarriage of justice under the law" is not
created. R. 4:49-1(a).
Measured by that standard, a dismissal under Rule 4:37-2(b),
Rule 4:40-1, Rule 4:40-2 or for failure to allege or prove a
prima facie case, does not unduly intrude into the province of
the jury. In those instances, there simply is no issue to be
decided by a jury based on the evidence. A jury resolves
factual, not legal, disputes. If a case involves no material
factual disputes, the court disposes of it as a matter of law by
rendering judgment in favor of the moving or non-moving party on
the issue of liability or damages or both. Thus, the right of
trial by jury remains inviolate. N. J. Const. art. I, ¶ 9;
Weinisch v. Sawyer,
123 N.J. 333, 342-44 (1991); Shaner v.
Horizon Bancorp,
116 N.J. 433, 446-55 (1989); Hager v. Weber,
7 N. J. 201, 211 (1951); 500 Columbia Turnpike Assocs. v.
Haselmann,
275 N.J. Super. 166, 171 (App. Div. 1994).
Furthermore, the right to a jury trial has never prevented our
courts from granting summary judgment in an appropriate case even
before Judson was decided. National Surety Corp. v. Clement,
133 N.J.L. 22, 26 (E. & A. 1945); Jasion v. Preferred Accident Ins.
Co.,
113 N.J.L. 108, 110-111 (E. & A. 1934); Coykendall v.
Robinson,
39 N.J.L. 98, 100-01 (E. & A. 1876).
Additionally, in civil matters the constitutional right to a
jury trial is not absolute. Asbestos Fibres, Inc. v. Martin
Labs., Inc.,
12 N.J. 233, 239 (1953). It is waived unless
properly requested pursuant to Rule 4:35-1. See 500 Columbia
Turnpike Assocs., supra, 275 N.J. Super. at 170-71. Even when
requested, the failure to present evidence warranting submission
of a factual issue to the jury is the functional equivalent of a
waiver of the right to have a jury decide the case. See Bussell
v. DeWalt Prods. Corp.,
259 N.J. Super. 499, 512 (App. Div. 1992)
(holding when the facts are undisputed or when the parties enter
into a stipulation of the facts, the need for a jury is waived),
certif. denied,
133 N.J. 431 (1993). We are satisfied that the
summary judgment standard we adopt does not "denigrate the role
of the jury." Liberty Lobby, supra, 477 U.S. at 255, 106 S. Ct.
at 2513, 91 L. Ed.
2d at 216; see Galloway v. United States,
319 U.S. 372,
63 S. Ct. 1077,
87 L. Ed. 1458 (1943) (holding the
right to jury trial attaches only if an issue requiring
resolution by a jury is presented).
At the request of the Court, the Civil Practice Committee has been studying the summary judgment practice in New Jersey. A subcommittee assigned to study the problem has informed the Civil Practice Committee that it "believes that incorporating the [Liberty Lobby-Celotex] rule into our [Rule] 4:46-2 might be helpful. It could be accomplished simply by adding to [Rule] 4:46-2 language borrowed from [Rule] 4:37-2(b)." Under that proposal, Rule 4:46-2 would be amended to add several new paragraphs. The proposed paragraph (c) would contain the following: "A dispute of fact is genuine if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom, could sustain a judgment in favor of the non-moving
party." That proposed change to Rule 4:46-2 has been approved by
the Civil Practice Committee as of May 24, 1995, for inclusion in
the Committee's next report.
The majority of courts in other jurisdictions that have
considered the Liberty-Lobby-Celotex rule in non-First Amendment
cases have adopted it. See, e.g., Orme School v. Reeves,
802 P.2d 1000, 1003-09 (Ariz. 1990); Short v. Little Rock Dodge,
Inc.,
759 S.W.2d 553, 554 (Ark. 1988); Montrose Chemical Corp. v.
Superior Court,
861 P.2d 1153, 1161 n.4 (Cal. 1993); Union Bank
v. Superior Court,
31 Cal. App. 4th 573, 579-590 (Cal. Ct. App.
1995); Continental Air Lines, Inc. v. Keenan,
731 P.2d 708, 712-13 (Colo. 1987); Burkhart v. Davies,
602 A.2d 56, 58-59 (Del.
1991), cert. denied,
504 U.S. 912,
112 S. Ct. 1946,
118 L. Ed.2d 551 (1992); Hill v. White,
589 A.2d 918, 921 n.8 (D.C. 1991);
Hall v. State,
756 P.2d 1048, 1055 (Haw. Ct. App.), appeal
dismissed and cert. denied,
488 U.S. 803,
109 S. Ct. 33,
102 L.
Ed.2d 13 (1988); Benner v. Bell,
602 N.E.2d 896, 901-02 (Ill.
Ct. App. 1992), appeal denied,
610 N.E.2d 1259 (Ill. 1993); Shaw
v. Soo Line R.R. Co.,
463 N.W.2d 51, 54 (Iowa 1990); Reilly v.
Dynamic Exploration, Inc.,
571 So.2d 140, 144 (La. 1990); Trahan
v. Thenamaris Ship Management, Inc.,
614 So.2d 362, 364 (La. Ct.
App. 1993); Mackey v. Dorsey,
655 A.2d 1333, 1337 (Md. Ct. Spec.
App. 1995); Kourouvacilis v. General Motors Corp.,
575 N.E.2d 734, 738-40 (Mass. 1991); Skinner v. Square D Co.,
516 N.W.2d 475, 480-81 n.9 (Mich. 1994); Frank v. Winter,
528 N.W.2d 910,
913-14 (Minn. Ct. App. 1995); Towner v. Moore,
604 So.2d 1093,
1098 (Miss. 1992); Sloan v. Miller Bldg. Corp.,
458 S.E.2d 30, 32
(N.C. Ct. App. 1995); Anderson v. Service Merchandise Co., Inc.,
485 N.W.2d 170, 173-75 (Neb. 1992); Bulbman, Inc. v. Nevada Bell,
825 P.2d 588, 591 (Nev. 1992); Goradia v. Hahn Co.,
810 P.2d 798,
800-01 (N.M. 1991); Cawein v. Flintkote Co.,
610 N.Y.S.2d 487,
488 (N.Y. App. Div. 1994); In re Estate of Stanton,
472 N.W.2d 741, 743 (N.D. 1991); Wing v. Anchor Media, Ltd.,
570 N.E.2d 1095, 1099 (Ohio 1991); Marshall v. Plainville IGA,
648 N.E.2d 899, 901 (Ohio Ct. App. 1994); Baughman v. American Tel. & Teleg.
Co.,
410 S.E.2d 537, 545-46 (S.C. 1991); Parsons v. Dacy,
502 N.W.2d 108, 110 (S.D. 1993); Byrd v. Hall,
847 S.W.2d 208, 210-16
(Tenn. 1993); State v. G.S. Blodgett Co.,
656 A.2d 984, 988 (Vt.
1995); Young v. Key Pharmaceuticals, Inc.,
770 P.2d 182, 187-88
(Wash. 1989); Williams v. Precision Coil, Inc.,
459 S.E.2d 329,
335-39 (W. Va. 1995); Baxter v. Wisconsin Dep't Natural
Resources,
477 N.W.2d 648, 654 (Wis. Ct. App. 1991), review
denied,
485 N.W.2d 412 (Wis. 1992).
The Arizona Supreme Court has aptly described why so many
jurisdictions have adopted the standard articulated in Celotex
and Liberty Lobby. It stated:
We live in what is widely perceived as a time
of great increase in litigation and one in
which many meritless cases are filed, vastly
increasing the dockets before our trial
judges. As a result, the courts of this
country have been urged to liberalize the
standards so as to permit summary judgment in
a larger number of cases. See, e.g., Report
of the Commission on the Courts, The Future
of Arizona Courts, at 62 (1989).
[Orme School, supra, 802 P.
2d at 1003-04
(footnotes omitted).]
Consistent with this national trend, we hold that under Rule
4:46-2, when deciding summary judgment motions trial courts are
required to engage in the same type of evaluation, analysis or
sifting of evidential materials as required by Rule 4:37-2(b) in
light of the burden of persuasion that applies if the matter goes
to trial. Accordingly, we request the Civil Practice Committee
to recommend appropriate rule changes on an expedited basis that
are necessary to implement the standard we establish today.
Under this new standard, a determination whether there
exists a "genuine issue" of material fact that precludes summary
judgment requires the motion judge to consider whether the
competent evidential materials presented, when viewed in the
light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party. The "judge's function is
not himself [or herself] to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine
issue for trial." Liberty Lobby, supra, 477 U.S. at 249, 106 S.
Ct. at 2511, 91 L. Ed.
2d at 212. Credibility determinations
will continue to be made by a jury and not the judge. If there
exists a single, unavoidable resolution of the alleged disputed
issue of fact, that issue should be considered insufficient to
constitute a "genuine" issue of material fact for purposes of
Rule 4:46-2. Liberty Lobby, supra, 477 U.S. at 250, 106 S. Ct.
at 2511, 91 L. Ed.
2d at 213. The import of our holding is that
when the evidence "is so one-sided that one party must prevail as
a matter of law," Liberty Lobby, supra, 477 U.S. at 252, 106 S.
Ct. at 2512, 91 L. Ed.
2d at 214, the trial court should not
hesitate to grant summary judgment.
It is critical that a trial court ruling on a summary judgment motion not "shut a deserving litigant from his [or her] trial." Judson, supra, 17 N.J. at 77 (citation omitted). At the same time, we stress that it is just as important that the court not "allow harassment of an equally deserving suitor for immediate relief by a long and worthless trial." Ibid. (citation omitted). What we said in Judson is worth repeating:
If these general rules are applied by the courts with discernment and care, the summary judgment procedure, without unjustly depriving a party of a trial, can effectively eliminate from crowded court calendars cases in which a trial would serve no useful purpose and cases in which the threat of trial is used to coerce a settlement.
[Ibid. (quoting Asbill and Snell, Summary
Judgment Under the Federal Rules,
51 Mich. L.
Rev. 1143, 1172 (1953).]
To send a case to trial, knowing that a rational jury can reach
but one conclusion, is indeed "worthless" and will "serve no
useful purpose."
The thrust of today's decision is to encourage trial courts
not to refrain from granting summary judgment when the proper
circumstances present themselves. Some have suggested that trial
courts out of fear of reversal, or out of an overly restrictive
reading of Judson, supra, 17 N.J. at 67, or a combination
thereof, allow cases to survive summary judgment so long as there
is any disputed issue of fact. As to fear of reversal, we
believe our judges are made of sterner stuff and have sought
conscientiously over the years to follow the law. We may have
permitted an encrustation of the Judson standard that obscured
its essential import. A summary judgment motion has in the past
required and will in the future continue to require a searching
review. Millison v. E.I. du Pont de Nemours & Co.,
101 N.J. 161,
167 (1985) (noting that Judson requires a "discriminating search"
of the record to determine whether there exists a "genuine issue
of material fact requiring disposition at trial"); see Ziemba v.
Riverview Medical Center,
275 N.J. Super. 293, 298-303 (App. Div.
1994).
Trial courts must keep in mind that the summary judgment
rule should be applied so as to serve two competing
jurisprudential philosophies. Robbins v. Jersey City,
23 N.J. 229, 240 (1957). As this Court observed over a quarter of a
century ago:
On the one hand is the desire to afford every
litigant who has a bona fide cause of action
or defense the opportunity to fully expose
his case. . . . On the other hand,
protection is to be afforded against
groundless claims and frivolous defenses, not
only to save antagonists the expense of
protracted litigation but also to reserve
judicial manpower and facilities to cases
which meritoriously command attention.
[Id. at 240-41 (citations omitted).]
The trial court in the present case properly concluded that the evidence presented by KRA and Gould does not create a "genuine" issue of material fact under Rule 4:46-2. As the motion judge found, the competent evidential material presented leaves no doubt of any kind about whether Gould advised Brill of the availability of a conditional-receipt. By Gould's own unequivocal admission, he did not. The trial court thus correctly held that "[t]here is no evidence from which a jury could conclude that Mr. [Gould] offered the temporary option."
The fact that Brill reviewed and signed his insurance application does not alter the inescapable conclusion that Gould failed to make Brill aware of the conditional-receipt option. By signing that application, Brill did not acknowledge that he had been informed of the availability of a conditional receipt. Although the application contains a section devoted to the conditional-receipt option, there was no evidence to suggest that even if Brill read the option, he would understand its meaning.
The common law has long recognized that an insurance broker owes a duty to the insured to act with reasonable skill and diligence in performing the services of a broker. Carter Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 189 (1994) (citations omitted). We have concluded previously that as a matter of law, the duty owed by a broker to an applicant for insurance includes the duty to inform the potential insured of
the availability of immediate insurance coverage through a
temporary binder. Id. at 190 (citing Bates v. Gambino,
72 N.J. 219, 222-25 (1977)). Thus, if a broker does not inform the
prospective insured of the availability of a temporary binder
option, the broker has committed professional negligence. See
Bates, supra, 72 N.J. at 225 (noting that this Court's case law
sets forth the legal requirements of an insurance broker). We
agree with the trial court that Gould was negligent as a matter
of law. Carter, supra, 135 N.J. at 189-90.
We are thoroughly convinced that Brill's refusal to provide
a check for the entire amount of the policy premium is irrelevant
to the issue of whether Gould was negligent for failing to advise
Brill of the temporary binder option. That refusal can be
considered only in the context of the facts known to Brill at the
time. When Brill told Gould that he would not pay the policy
premium in advance, Brill's knowledge of the relevant facts was
incomplete. Indeed, when Brill made that statement, Gould had
not made Brill aware of the conditional-receipt option that would
have allowed Brill to obtain virtually immediately $500,000 in
coverage for the very small sum of $141.87. Brill was also
unaware that once he obtained a conditional receipt, any
subsequent change in his health would be immaterial to coverage
under the primary policy. Because Brill's statement refusing to
provide a check for the full policy premium was based on
insufficient knowledge of the available option to obtain a
conditional receipt, it has no bearing on the issue of whether
Gould acted negligently in failing to advise Brill of the
availability of a conditional receipt or on the issue of
proximate cause.
We likewise find that the opinion of defendants' expert
broker does not create a genuine issue of material fact regarding
Gould's negligence. Castellini stated specifically:
The agent was prevented from issuing a
Conditional Receipt, though it was Gould's
practice to do so when possible, by Brill's
refusal to make a premium payment with the
application. There are a number of good and
cogent reasons why producers - like Gould
want to take a premium deposit with the
application. The agent, however, cannot
force an applicant to do that which the
applicant has refused to do.
Castellini's conclusion that Gould did not breach any duty owed
to Brill is based on the false assumption that Gould performed
all of his duties in the manner required by the applicable
standard of care and that a conditional receipt was not issued
because Brill refused to pay the entire premium. An expert's
opinion of no negligence based on erroneous or nonexistent facts
is worthless. Johnson v. Salem Corp.,
97 N.J. 78, 91 (1984);
Buckelew v. Grossbard,
87 N.J. 512, 524 (1981).
A party cannot defeat a motion for summary judgment merely
by submitting an expert's report in his or her favor. See
Ziemba, supra, 275 N.J. Super. at 302. In order for such a
report to have any bearing on the appropriateness of summary
judgment, it must create a genuine issue of material fact. Id.
at 301-03. Here, because Castellini's conclusion regarding
Gould's liability is based on a factually inaccurate and
unjustifiable assertion, we agree with the trial court's
conclusion that Castellini's report does not create a genuine
issue of material fact precluding the grant of summary judgment.
We also reject defendants' contention that Dancy, supra, 114
N.J. at 573, required the trial court to draw an inference of no
negligence on the part of Gould based on Brill's signing of the
application. Dancy involved a claim against an automobile
insurance agent based on the agent's alleged failure to inform an
insured of the availability of additional uninsured and
underinsured motorist (UM and UIM) coverage. Id. at 571. There
we held that the agent was not entitled to summary judgment
merely because the plaintiff had signed the insurance
application, which contained a statement acknowledging that the
insured had been informed of the availability of UM and UIM
coverage. Id. at 573. While we did suggest that the factfinder
in that case could weigh the signing of the application against
the plaintiff in considering whether the agent had breached a
duty, ibid., we did so only because the application expressly
stated that the insured had been informed of the availability of
UM and UIM coverage, contrary to his contention in the lawsuit
that he had not been so informed. See id. at 571. Dancy has no
bearing on the unavoidable reality in this case that Gould
breached his duty as an insurance broker when he failed to advise
Brill of the availability of a conditional receipt.
Finally, the competent evidential materials create no genuine issue of material fact with respect to whether Gould's failure to advise Brill of the conditional-receipt option was a proximate cause of damages to plaintiff. We are satisfied that no reasonable jury could conclude, based on the facts in the record, that Gould's negligence was not a proximate cause of Brill's lack of an effective Guardian life-insurance policy at the time of his death. It is clear from the record that Brill wanted to secure life-insurance coverage as quickly as possible. There can be no doubt, then, that had he been given the chance, Brill would have secured immediate, temporary coverage by paying the small sum of $141.87. Coverage under the conditional-receipt option would have become effective on June 19, 1989, the date of his successful medical examination. As of that date, Brill's change in health would have become immaterial to the existence o