Yew v. FMI Ins. Co.
| Decision Date | 29 March 2023 |
| Docket Number | A-0997-21 |
| Parties | TONY PING YEW, Plaintiff-Appellant, v. FMI INSURANCE COMPANY, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Argued February 13, 2023
On appeal from the Superior Court of New Jersey, Law Division Sussex County, Docket No. DC-001516-21.
Tony Ping Yew, appellant, argued the cause pro se.
Kyle A. Livingstone argued the cause for respondent (Methfessel &Werbel, attorneys; Olivia R. Licata, of counsel and on the brief).
Before Judges Gooden Brown and Mitterhoff.
Self-represented plaintiff Tony Ping Yew appeals from the October 25, 2021 Law Division order denying reconsideration of a September 27, 2021 order. The September 27 order dismissed with prejudice his complaint against defendant FMI Insurance Company on the ground that the complaint, which followed an identical lawsuit brought by plaintiff, was precluded based on principles of res judicata, collateral estoppel, and the entire controversy doctrine. We affirm.
Plaintiff's complaint arises from a water damage claim stemming from a March 3, 2018 sump pump failure in the basement of plaintiff's home. At the time, plaintiff was insured under a homeowner's insurance policy issued by defendant. On March 14, 2018, defendant denied the claim because plaintiff's policy excluded coverage for damage caused by a sump pump failure.
Plaintiff had been insured by defendant for many years prior to the denial of the claim. Back in 2012, along with a general renewal notice, plaintiff had received a "special notice" from defendant informing him that defendant was consolidating all sump pump coverage in a separate endorsement that he could add to his policy for an additional premium. [1]
The special notice warned plaintiff that if he did not affirmatively select the coverage, the policy would exclude all claims for damage caused by a sump pump failure. In subsequent annual renewal notices after 2012, defendant did not specifically address or reinform plaintiff about the option to purchase supplemental sump pump insurance coverage or the consequences for failing to do so. Nonetheless, plaintiff never elected to add the supplemental sump pump coverage to his insurance policy.
Plaintiff filed an internal appeal of the March 14, 2018 claim denial with defendant. On April 19, 2018, defendant reaffirmed its denial, explaining that plaintiff "did not elect to include sump pump coverage on [his] policy." Plaintiff then requested the New Jersey Department of Banking and Insurance (DOBI) to review defendant's denial of coverage.
On June 12, 2018, following a formal investigation of plaintiff's claim, DOBI upheld defendant's denial of coverage, concluding that defendant's "actions [were] in accordance with the provisions of the policy contract, applicable statutes and regulations" because supplemental sump pump coverage "was not elected, purchased, or paid for" by plaintiff. DOBI subsequently declined to reopen the investigation as requested by plaintiff and rejected plaintiff's additional contentions "that [defendant] maliciously removed the [sump pump] coverage and sought to keep it secret from [plaintiff]" or that defendant's "actions [were] discriminatory."
On March 12, 2019, plaintiff filed a complaint against defendant seeking compensatory and punitive damages (the first complaint). In the complaint, plaintiff acknowledged receipt of the 2012 special notice of supplemental sump pump coverage. However, plaintiff alleged defendant was "negligent for not providing [the] notice . . . in each renewal period," "breached the implied covenant of good faith and fair dealings" by not providing the notice annually, and acted in "bad faith" by "fail[ing] to include" and "deliberate[ly] . . . excluding" the notice each renewal period. As a result, the complaint asserted that "[p]laintiff was denied the opportunity to buy coverage and thus suffered uncovered damages on [March 3, 2018]."
Over plaintiff's objection, defendant ultimately moved for summary judgment dismissal of the first complaint, which was granted in a May 24, 2019 order. In granting the motion, the trial court found no dispute of material facts and no legal basis for the claims. Plaintiff's subsequent motion for reconsideration was denied on July 2, 2019.
Plaintiff appealed from the trial court orders, and, in an unpublished opinion, we affirmed both orders. Ping Yew v. FMI Ins. Co., No. A-4947-18 (App. Div. June 22, 2020) (slip op. at 2). In our opinion, we first recounted that plaintiff's complaint "alleged [defendant] was negligent and breached the covenant of good faith and fair dealing, because it failed to advise him that he could add supplementary sump pump coverage each year he renewed his policy." Ibid. We observed that "[plaintiff] admitted he saw the [2012] notice, but elected not to purchase the coverage." Id. at 4.
We rejected plaintiff's contention that defendant had a duty to inform him each renewal period of the supplemental sump pump coverage because of "a special relationship" between defendant and plaintiff. Id. at 7. We explained:
Plaintiff's petition for certification to the Supreme Court was subsequently denied, Ping Yew v. FMI Ins. Co., 244 N.J. 428 (2020), as was plaintiff's "motion for reconsideration of the Court's order denying the petition for certification." Ping Yew v. FMI Ins. Co., 246 N.J. 305 (2021).
On July 25, 2021, plaintiff filed a second complaint against defendant alleging defendant "committed the common law tort of negligence of bad faith and violation of statutory laws." In the second complaint, plaintiff renewed his allegations that defendant's failure to notify plaintiff of supplemental sump pump coverage in each annual renewal of his policy constituted negligence, bad faith, and breach of the implied covenant of good faith and fair dealing. Plaintiff also asserted that "the second complaint [was] to address the legal errors of the prior courts," to "improve on [the] previous complaint [by] adding case law[ and] rules," and to preemptively address why res judicata was not a bar to the second complaint.
In lieu of an answer, defendant moved pursuant to Rule 4:6-2(e) to dismiss the second complaint with prejudice based on res judicata, collateral estoppel, and the entire controversy doctrine. Following oral argument conducted on September 27, 2021, the motion judge entered an order granting defendant's motion. In an oral opinion, the judge noted that the second complaint contained "the same arguments" alleged "in the first complaint." The judge found "no legal basis to proceed" because plaintiff's claims were precluded by the prior proceeding.
Specifically, applying res judicata, the judge found that "a detailed review of the [second] complaint" revealed that it was "the same complaint" as the first, summary judgment dismissing the first complaint was a "final judgment on the merits," and the second complaint related to "the same sump pump loss" alleged in the first complaint.. As an alternative basis for dismissing plaintiff's complaint, the judge found that "even if, for some reason, res judicata did not apply, . . . collateral estoppel would."
In finding that the five elements of collateral estoppel were present to bar all issues raised in the second complaint, the judge explained that: (1) the issue of whether defendant had a "duty" to provide notice of supplemental sump pump coverage each renewal period raised in the second complaint was "identical" to the issue raised in the first complaint; (2) the Appellate Division's decision affirming the trial judge's summary judgment order suggested that "[t]he issue was actually litigated in the prior proceeding"; (3) "[t]he court in the prior proceeding issued a final judgment," which plaintiff "appealed . . . to the Appellate Division"; (4) "[t]he determination of the issue was essential to the prior judgment" because it "was the main issue"; and (5) "the party against whom the doctrine was asserted was a party . . . in the earlier proceeding."
As yet another alternative basis for dismissing plaintiff's complaint, the judge determined that even if plaintiff's second complaint "accounted for some new claim," the claim would be barred under the "entire controversy doctrine." After reciting the governing principles, the judge observed that the second complaint involved "the same facts" and tort claims as the first complaint namely "the sump pump incident" and the allegations of "negligence and bad faith" by virtue...
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