STRUBE v. THE TRAVELERS INSURANCE COMPANY
Case Date: 12/06/1995
Docket No: SYLLABUS
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(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).
(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the
judgment of the Appellate Division is based substantially on the reasons expressed in the
PER CURIAM opinion below.)
Argued October 23, 1995 -- Decided December 6, 1995
PER CURIAM
On April 3, 1990, Nancy Strube sustained injuries as a result of an automobile accident. She
was driving a tow truck leased by her employer, Hamilton Auto Center. The vehicle was covered by a
policy placed by Webster M. Grimm, a broker, through the New Jersey Automobile Insurance Plan
(CIAPNJ). The policy was written by Travelers Indemnity Company (Travelers) in the amount of
$300,000 liability with underinsured motorist coverage of $100,000. Strube settled her case against the
driver of the other vehicle for $100,000 and then instituted this suit claiming that the defendants failed to
advise Hamilton Auto Center of the availability of the additional UIM coverage.
The Law Division dismissed Strube's complaint on the ground that defendants were immune
from damages pursuant to subsection (a). In reaching this conclusion, the court determined that the
statute was intended to apply to policies issued prior to its effective date.
The Appellate Division affirmed the decision of the trial court, holding that the immunity
conferred by the statute extends to antecedent policies. The Appellate Division noted the general
principle of statutory construction that favors the prospective application of legislation and that the terms
of a statute will not be given retroactive effect, unless these terms are so clear, strong, and imperative
that no other meaning can be given to them or unless the intent of the Legislature cannot otherwise be
satisfied. The Appellate Division found that supervening considerations clearly compelled a prospective
application. The court pointed to the statutory language, in which the legislature referred to the New
Jersey Automobile Full Insurance Underwriting Association (JUA) and the Market Transit Facility (MTF).
The court found it significant that these agencies stopped writing insurance policies before the effective
date of subsection (a). However, the Legislature specifically granted the JUA and the MTF immunity
under the statute. The court reasoned that the Legislature clearly would not have made specific
reference to those defunct organizations unless it intended the statutory immunity extend to claims
arising prior to June 29, 1993. This is the only sensible interpretation of subsection (a). The Appellate Division also found that the legislative history demonstrates an implied expression of retrospective intent. The statute was intended to put an end to the explosion of litigation, concerning insurers', brokers', and agents' liability for providing insufficient information, by providing blanket immunity except in cases of wilful, wanton or gross negligence. Although the Appellate Division found
subsection (b) of the statute prospective, the court was satisfied that the Legislature enacted subsection
(a) in response to the confused and contentious history of litigation and they intended the immunity
provision to extend to all antecedent policies.
Judge Kestin dissented, finding the statute applied prospectively because the Legislature did not
clearly state otherwise. Judge Kestin noted that the statute does not contain an explicit legislative
direction regarding the retrospectivity question. However, the Legislature's intent can be inferred from
language of the statute, the mechanics of its operations or the available legislative history. According to
Judge Kestin, the terms used in subsection (b) can only be seen as prospective in operation. To accept
the argument that the Legislature intended the immunity conferred in subsection (a) to be retroactive,
while the conduct required in subsection (b) to implement that immunity to be prospective is
inconsistent and is at variance with the court's responsibility to give the most sensible interpretation to
the statute. Moreover, Judge Kestin noted that to interpret subsection (a), as does the majority renders
the fair notice policy embodied in subsection (b) a nullity, at least with respect to all contracts of
insurance entered into before the effective date of the statute. A court should avoid interpretations that
nullify any provisions by the statute. Thus, if the Legislature's intendment in respect to the
retrospectivity/prospectivity issue is ambiguous, the court should not guess at what the Legislature
intended or imply its own preference.
HELD: The opinion of the Appellate Division is affirmed, substantially for the reasons stated in Judge
Baime's majority opinion below. The statutory immunity from liability for failure to advise
customers of availability of additional underinsured and uninsured motorist coverage applies
retroactively and, therefore, extends to policies issued before the statute's effective date of June
29, 1993.
JUSTICE STEIN and JUSTICE COLEMAN, dissent substantially for the reasons expressed by Judge
Kestin in his dissenting opinion in the Appellate Division.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, and GARIBALDI
join in this PER CURIAM opinion. JUSTICES STEIN and COLEMAN have filed a separate
dissenting opinion.
SUPREME COURT OF NEW JERSEY
NANCY STRUBE,
Plaintiff-Appellant,
v.
THE TRAVELERS INDEMNITY COMPANY
Defendants-Respondents.
Argued October 23, 1995 -- Decided December 6, 1995
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
277 N.J. Super. 236 (1994).
Craig J. Hubert argued the cause for
appellant (Brotman & Graziano, attorneys; Mr.
Hubert and Dennis S. Brotman, of counsel and
on the brief).
Michele M. Fox argued the cause for
respondent The Travelers Indemnity Company of
Illinois, etc. (Kenney & Kearney, attorneys;
Ms. Fox and Ralph R. Smith, 3rd, on the
brief).
C. Edward Speidel argued the cause for
repsondent Webster H. Grimm, improperly
pleaded as Webster M. Grimm (Golden,
Rothschild, Spagnola & DiFazio, attorneys).
Marc L. Dembling argued the cause for
respondent C.I.A.P.N.J. (Berlin, Kaplan,
Dembling & Burke, attorneys).
PER CURIAM
NANCY STRUBE,
Plaintiff-Appellant,
v.
THE TRAVELERS INDEMNITY COMPANY
Defendants-Respondents.
STEIN AND COLEMAN, JJ., dissenting.
We would reverse, substantially for the reasons expressed in
Judge Kestin's dissenting opinion, reported at
277 N.J. Super. 242 (1994).
NO. A-32 SEPTEMBER TERM 1995
NANCY STRUBE,
Plaintiff-Appellant,
v.
THE TRAVELERS INDEMNITY COMPANY
Defendants-Respondents.
DECIDED December 6, 1995
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