FEBRUARY 2013 BAD FAITH CASES: COURT DISMISSES CARRIER’S APPEAL BECAUSE ALLEGATIONS OF INSURED’S REVERSE BAD FAITH WERE MOOT IN LIGHT OF UNDERLYING SETTLEMENT (New Jersey Appellate Division)

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In Rosen v. Earle, a third-party was injured in an automobile accident. She sued the negligent driver and the driver’s insurance carrier for damages sustained in the accident. The claimant also sought a declaratory judgment that the carrier was obligated to cover her injuries under the policy. The carrier responded by asserting that the insured made material misrepresentations that voided coverage under the policy. The trial court ruled that the carrier was obligated to indemnify the insured for the judgment against it. The carrier re-filed its motion in the severed declaratory judgment action. Eventually, the underlying liability and declaratory judgment actions were settled.

On appeal, the carrier argued that the trial court should not have ordered it to indemnify the insured because the insured’s fraudulent conduct voided the policy. The carrier acknowledged that is was not seeking relief for the parties, but nevertheless urged the court to issue an opinion that prevents the recurrence of insurance fraud. The appellate panel dismissed the appeal as moot because the underlying actions were settled and the issue was not one of substantial importance to warrant a decision.

Date of Decision: January 17, 2013

Rosen v. Earle, NO. A-2518-11T1, 2013 N.J. Super. Unpub. LEXIS 114, New Jersey Appellate Division (App.Div. Jan. 17, 2013) (Axelrad, J., Haas, J.)

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