By: Richard Trenk, Esq., Franklin Barbosa, Jr., Esq., and Michael Mondelli, III.

Richard Trenk and Franklin Barbosa, Jr., are attorneys at Trenk, DiPasquale, Della Fera & Sodono, P.C. Michael Mondelli, III, is a summer law clerk at Trenk DiPasquale and a third-year law student at Seton Hall University School of Law.

             Insurance is one of the most overlooked and misunderstood commodities purchased by nearly all individuals or businesses.  Insurance coverage is critical and offers invaluable protection against the many risks and dangers that may befall an individual or business.  As per Murphy’s law, anything that can go wrong will go wrong, and thus it is important to have adequate coverage in place when a challenge inevitably arises.

Herein lies the role of the insurance broker. Insurance brokers, once retained, are responsible for procuring insurance coverage that is tailored to meet a client’s particular needs and minimize the client’s risk exposure.  For that reason, brokers are required to exercise a duty of care when dealing with clients.  Under New Jersey law, insurance brokers owe the following duties to their clients: (i) having the knowledge and skill necessary to carry out their employment responsibilities; (ii) exercising good faith and reasonable care, diligence, and skill in the execution of their employment responsibilities; (iii) possessing “reasonable” knowledge of available policies and terms of coverage in the areas in which the insured seeks coverage; and, (iv) procuring the necessary coverage tailored to meet a client’s needs and wants, or advise the client of their inability to procure the desired coverage.  See Rider v. Lynch, 42 N.J. 465, 476-77 (1964).

The average individual or business owner justifiably assumes that the insurance broker has performed his/her duties to the best of his/her abilities.  Sometimes, however, brokers fail to adhere to their mandated duties and leave insureds exposed to unnecessary risks and liabilities. In assessing whether a broker failed to meet their duty of care, insureds should look for certain telltale signs, such as the following: (i) failure to procure the insurance coverage requested; (ii) invalid, illusory, or deficient coverage; (iii) coverage that does not cover the risks or liabilities that the broker said it would cover; or, (iv) lack of coverage for certain risk factors that directly affect or apply to the client.  The presence of any of these factors could signal a valid cause of action for broker negligence and/or malpractice.

In recent years, brokers have tried to use automation processes to limit their liability for negligence or malpractice.  For example, brokers will often send mass mailings to clients vaguely notifying them of possible coverage deficiencies and/or the general availability of greater coverage limits.  Unfortunately, courts have occasionally found that even the most perfunctory forms of notice adequately put clients on notice of deficient coverage or the availability of greater coverage limits, and thus satisfy the broker’s duty to its clients.  C.S. Osborne & Co. v. Charter Oak Fire Ins. Co., 2017 WL 1548796, (N.J. Super. Ct. App. Div. May 1, 2017).   This practice, however, does not completely insulate brokers from the duty to diligently provide adequate coverage to their clients.

For example, the duty of care owed by brokers is largely informed by industry standards. When a broker’s conduct falls below these industry standards, the duty of care owed to the client is breached.  Industry standards and customary practices dictate that brokers are responsible for providing the following services: (i) surveying business operations for the purpose of identifying exposures; (ii) analyzing exposures in relation to the available and applicable policy coverages, exclusions, and endorsements; (iii) completing all applications necessary to acquire the desired or selected coverages, limits, and coverage-extending endorsements; and (iv) reviewing policies, especially during renewal periods, to assure that they are maintained accurately and properly, and continue to provide coverage against the client’s exposures without any lapses or gaps in coverage.

Brokers can also be subjected to a more exacting and strict duty of care where a “special relationship” exists between a broker and the insured.  A special relationship exists where a broker invites reliance upon their expertise, as evidenced by the broker’s conduct and whether the client clearly exhibited reliance.  Where an average, unsophisticated insurance consumer requests the “best” coverage available or otherwise notifies the broker that it is relying upon the broker’s expertise, a special relationship is formed.  Asking for the “best” available coverage creates a heightened burden on the broker to adequately explain all relevant, applicable coverage options and limits.  The existence or creation of a special relationship is the best way to ensure that your rights as an insurance consumer are preserved and protected.

It may seem as though purchasing insurance coverage is a fairly innocuous transaction, but inadequate coverage can expose an insured to suffocating liabilities potentially amounting to millions of dollars.  That is why it is essential that you remain vigilant of the duties owed by a broker, carefully choose your coverage, and consult an attorney if you believe the broker has violated the duty of care owed to you.

Richard D. Trenk and Franklin Barbosa, Jr., of Trenk DiPasquale have vigorously litigated claims against insurance brokers and agents.  They are available for consultation to help you determine whether you have a viable claim against your broker.

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Since the 1990’s when then New York City Mayor Giuliani got rid of the squeegee people in New York City, many municipalities have vigorously pursued code enforcement matters.  Since the Honorable John F. McKeon was elected mayor in 1998, The Township of West Orange has pursued these cases with a cadre of young and talented lawyers at Trenk, DiPasquale, Della Fera & Sodono, P.C.

Most recently, these cases have led to certain appeals and affirmances before the Superior Court of New Jersey, Law Division, Essex County.  Specifically, two trial courts in November, 2016 and January 2017 have affirmed fines in excess of $35,000 concerning peeling paint, exterior mildew, and broken fences.  In both cases, the property owner argued that the Township Ordinances were “unconstitutionally vague” and that the fines imposed “shocked the conscience” as excessive.  Both claims were rejected.

Property maintenance codes are designed to ensure that standards of maintenance and norms are maintained.  When one property is allowed to become dilapidated or unkept, an entire neighborhood is directly impacted.   Additionally, a property that is not maintained, including a failure to cut the lawn, can become a breeding ground for vermin and other health hazards.

Next, if someone was looking for a property to burglarize or vandalize, an unkept property is probably a good candidate because it is likely the property is abandoned.

Next, when properties in the neighborhood become run down, it is highly likely that any potential buyer will devalue the neighboring properties or refuse to live near a dilapidated property.  Thus, property values decline.

Plain and simple, quality of life matters and requires vigilance in maintaining properties.

Fixing peeling paint, picking up garbage and repairing fences are not overly expensive ventures.  If the property owner involved had immediately abated the violations by investing in their property, then it is likely that the fines would have been negligible or non-existent.  However, when a property owner is convicted of ten (10) violations during a thirteen (13) year period, it becomes clear that that property owner’s willfulness requires punishment and a need to deter others from similar conduct.

Plain and simple, if you are going to own real property, maintain it.  It affects not only you as an owner, but everyone around you and the entire community.  The result of not maintaining your property is substantial.  The attorneys at Trenk DiPasquale understand the ramifications both from a governmental and property owner prospective.  Feel free to contact the firm if you are faced with property maintenance violations or your neighbor fails to take care of their property.

by George P. Cornell, Esq.

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It is generally acknowledged that Chapter 13 Plans are rarely successful. Even if a Plan is confirmed, it is rarely consummated. The nitty-gritty of what happens in a post-confirmation conversion was considered by the United States Supreme Court in the recent decision of Harris v. Viegelahn, 575 U.S. — (May 18, 2015). As someone who plays in these trenches, I can assure you that the facts at issue in Harris are unlikely to be repeated and, thus, the decision is of limited utility. However, since it is a Supreme Court decision, it merits our attention nonetheless. Continue reading

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The Fair Debt Collection Practices Act imposes liability on the debt collector who uses false, deceptive, or unfair debt collection practices.  To achieve its goal, the FDCPA grants consumers a private right of action against debt collectors engaging in such practices.  But does the FDCPA apply to debt collection in bankruptcy proceedings when a creditor’s only action is that it files a Proof of Claim?  By declining to review LVNV Funding, LLC v. Crawford, the U.S. Supreme Court seemingly says that it does. Continue reading

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     Every day, trustees and their professionals seek to liquidate assets of a bankruptcy estate for the benefit of the estate and its creditors. When analyzing a potential sale of property of the estate, title and/or UCC searches may reveal certain encumbrances. Bankruptcy practitioners may assume that if searches do not reveal liens on the personal property to be sold, any undisclosed lien is unperfected and the property can be sold free and clear of any such lien. However, to the extent a federal tax lien does not appear on such search results (e.g., UCC lien searches), practitioners must be diligent in investigating if such liens exist. Section 545(2) of the Bankruptcy Code prohibits a trustee from using his/her avoidance powers to avoid such liens. Unbeknownst to a trustee/seller, a federal tax lien may erode potential equity in the property. Continue reading

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Maternity Leave Constitutes Continued Employment For Tenure Purposes

     In a recent decision by the New Jersey Superior Court, Appellate Division, the Court considered for the first time whether an employee whose service was interrupted by maternity leave could be denied tenure as a result. Continue reading

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     Whenever I learn of stories of families torn apart by inter-family financial transactions, I wonder what it would be like to be at THEIR Thanksgiving table. A headline last week concerning the recent drama between Jack Johnson, an extremely successful major league hockey player, and his family, reignited this same question. Johnson gave his parents a power of attorney to engage in financial transactions with his money and in his name. This seemingly innocent decision proved extremely costly, because (as you can expect) they lost all of his money. Continue reading

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