Preview
MID-L-000369-23 04/05/2023 11:48:02 AM Pglof2 Trans ID: LCV20231183540
Attorney ID#: 000142007
PALMISANO & GOODMAN, P.A.
171 Main Street
P.O. Box 518
Woodbridge, New Jersey 07095-0518
(732) 634-6464
Attorneys for Plaintiff
| SUPERIOR COURT OF NEW JERSEY
SANDRA S. MATTSON, | LAW DIVISION: MIDDLESEX COUNTY
: DOCKET NO. L-313-23
Plaintiff(s),
CIVIL ACTION
VS.
JASON A. ATKINSON, BRYAN P.
ATKINSON and HELEN M. ATKINSON, NOTICE OF MOTION
JOHN DOES 1-10 (names are fictitious as true
identities are unknown), ABC CORPS 1-10
(names are fictitious as true identities are
unknown) and NEW JERSEY
MANUFACTURER’S INSURANCE
COMPANY,
Defendant(s).
To: Eric Kuper, Esq.
Martin Kane & Kuper
Attorney for defendant, New Jersey
Manufacturer’s Insurance Co.
Ada Gallicchio, Esq.
Law Offices of Frank A. Viscomi
Attorney for defendants, Atkinson
Counselors:
PLEASE TAKE NOTICE that the undersigned will apply to the above named Court, at the
Court House, New Brunswick, New Jersey on Friday, April 28, 2023 at 9:00 a.m., or as soon
thereafter as counsel may be heard, for an Order permitting plaintiff to file an Amended
Complaint to add a bad faith claim against defendant, New Jersey Manufacturer’s Insurance
Company upon the following grounds:
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Plaintiff will rely upon the attached Certification in support of this Motion.
CERTIFICATION OF SERVICE
Thereby certify that the original of this motion has been e-filed with the Middlesex
County Clerk's office, New Brunswick, New Jersey and a copy has been forwarded to all counsel
via e-filing.
Pursuant to R. 1:6-2(d), the undersigned:
(_) waives oral argument and consents to disposition on the papers
(X) does not request oral argument at this time
( ) requests oral argument
The discovery end date in this matter is scheduled for December 4, 2023.
There is no arbitration/trial date scheduled.
A proposed form of Order is annexed.
PALMISANO & GOODMAN, P.A.
ATTORNEYS FOR PLAINTIFF
BY: A Ake
GREGORY G. GOODMAN
DATED: April 3, 2023
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Attorney ID#: 000142007
PALMISANO & GOODMAN, P.A.
171 Main Street
P.O. Box 518
Woodbridge, New Jersey 07095-0518
(732) 634-6464
Attorneys for Plaintiff
SUPERIOR COURT OF NEW JERSEY
SANDRA S. MATTSON, 1 LAW DIVISION: MIDDLESEX COUNTY
1 DOCKET NO. L-313-23
Plaintiff(s),
CIVIL ACTION
vs.
JASON A. ATKINSON, BRYAN P.
ATKINSON and HELEN M. ATKINSON, ORDER
JOHN DOES 1-10 (names are fictitious as true
identities are unknown), ABC CORPS 1-10
(names are fictitious as true identities are
unknown) and NEW JERSEY
MANUFACTURER’S INSURANCE
COMPANY,
Defendant(s).
This matter having been opened to the Court by way of motion returnable April 28, 2023
filed by the law firm of Palmisano & Goodman, P.A. attorneys for plaintiff for an Order allowing
plaintiff to file an Amended Complaint, in the form annexed to the moving papers, and the Court
having considered the matter and good cause appearing,
IT IS on this day of April, 2023
ORDERED that the plaintiff be and is hereby granted leave to file and serve an Amended
Complaint in the form annexed to the moving papers within ten (10) days of the date of this Order;
and it is further
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ORDERED that service of this Order shall be deemed effectuated upon all parties upon
its upload to eCourts. Pursuant to R. 1:5-1(a), movant shall serve a copy of this Order on all
parties not served electronically within seven (7) days of the date of this Order.
Papers considered:
( ) Moving Papers
() Opposition SSC.
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Attorney ID # 000142007
PaLMisANo & GoopMAN, P.A.
171 Main Street
P.O. Box 518
Woodbridge, New Jersey 07095-0518
(732) 634-6464
Attorneys for Plaintiff
1 SUPERIOR COURT OF NEW JERSEY
VALERIE M. YURCHAK, | LAW DIVISION: MIDDLESEX COUNTY
DOCKET NO.: MID-L-369-23
Plaintiff,
CIVIL ACTION
VS.
EDGAR A. MARROQUIN-CASTILLO,
“JOHN DOES #1-10”, “ABC CERTIFICATION OF COUNSEL
CORPORATION #1-10”, “ABC BAR,” “DEF
BAR,” “GHI BAR,” “RICHARD ROE #1-10”,
“JANE DOE #1-10” and “JAMES DOE #1-10
(names being fictitious as true identities are
unknown) and NEW JERSEY
MANUFACTURER’S INSURANCE
COMPANY,
Defendants
I, GREGORY G. GOODMAN, hereby certify as follows:
1 Iam an Attorney-at-Law of the State of New Jersey and associated with the law firm
of Palmisano & Goodman, attorneys for the plaintiffs in the above-entitled action.
2. On January 20, 2023, a Complaint was filed on behalf of the plaintiff which included
a claim for uninsured motorist/underinsured motorist benefits against defendant, New Jersey
Manufacturer’s Insurance Company (hereinafter referred to as “NJM”).
3 A claim for bad faith against the defendant, NJM was not included in the initial
Complaint, Since the filing of this Complaint, a ruling has been made by the Honorable Gregory L.
Acquaviva, finding plaintiff s right to present a claim for bad faith against the carrier is appropriate
due to its ongoing violation of the IFCA. A.)
(See Judge Acquaviva’s ruling annexed as Exhibit
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4 In the interest of furthering the salutary goals of consolidating the litigation of
related controversies, preserving judicial resources and avoiding inconsistent outcomes on the same
set of facts, plaintiff now seeks to amend her Complaint to add a bad faith claim against defendant,
NJM. (See proposed Amended Complaint attached as Exhibit B.)
5. For the foregoing reasons, it is respectfully requested that the Court enter the Order
permitting the filing of an Amended Complaint in the within action.
Thereby certify that all of the foregoing statements made by me are true. I am aware that if
any of the foregoing statements made by me are willfully false, I am subject to punishment.
/) 4 -—
DATED: April 4, 2023 GREGORY G. GOODMAN
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SUPERIOR COURT OF NEW JERSEY
EVOUN TAWFILES, LAW DIVISION - MONMOUTH
COUNTY
Plaintiff,
CIVIL ACTION
v. DOCKET NO. MON-L-178-23
STEPHEN WILSON, G HALL
ENTERPRISES, LLC, SANDY’S TAXI OF
MANASQUAN, SANDY’S NEW
MANASQUAN TAXI, SANDY’S TAXI,
GREGORY SCOTT HALL, ESTATE OF
STEPHEN WILSON, PROGRESSIVE,
JOHN DOE 1-10, and ABC CORP. 1-10,
— Defendants. ORDER
THIS MATTER having been brought before the Court by Progressive Garden State
Insurance Company (Progressive), by and through its attorney, Kathleen P. Dapper, Esq., of Burns
White LLC, and the Court having considered the moving papers and any opposition filed thereto,
having heard oral argument, and for good cause having been shown:
IT IS on this 22Nd_ day of MARCH , 2023,
ORDERED that the motion to dismiss filed by Progressive is hereby DENIED, and
IT IS FURTHER ORDERED that service of this Order shall be deemed effectuated upon
all parties upon its upload to eCourts. Pursuant to Rule 1:5-1(a), movant shall serve a copy of this
Order on all parties not served electronically within 7 days of the date of this Order.
si Gregory £. Acquaviva
Hon. Gregory L. Acquaviva, J.S.C.
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Statement of Reasons
This litigation concerns a November 2021 car accident between Plaintiff and
Stephen Wilson, as well as an insurer’s alleged inadequate responses to Plaintiff's
subsequent uninsured motorist claim.
At the time of the accident, Plaintiff was insured pursuant to an automobile
insurance policy (Policy) issued by Progressive Garden State Insurance Company
(Progressive). Plaintiff filed a claim for Uninsured Motorist (UM) benefits with
Progressive. Plaintiff alleges that Progressive engaged in and continues to engage
in an unreasonable delay or unreasonable denial of Plaintiff's claim.
On January 19, 2023, Plaintiff filed a complaint against Wilson, the putative
corporate owner(s) of the vehicle operated by Wilson, and Progressive. The
governing complaint asserts, among other causes of action, a bad faith claim
against Progressive under the Insurance Fair Conduct Act, N.J.S.A. 17:29BB-1 to -
3 (IFCA).
Progressive moves to dismiss the IFCA cause of action, arguing that IFCA,
adopted after the accident, does not apply retroactively. The court disagrees
because Progressive’s framing of the benchmark date ignores IFCA’s express and
unambiguous language.
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Motion to Dismiss
The issue before a court on a motion to dismiss is “whether a cause of action
is suggested by the facts.” Velantzas v. Colgate-Palmolive Co.. 109 N.J. 189, 192
(1988). In deciding a Rule 4:6-2(e) motion, the court “must accept as true all
factual assertions in the complaint . . . [and] accord to the non-moving party every
reasonable inference from those facts.” Malik v. Ruttenberg, 398 N.J. Super. 489,
494 (App. Div. 2008). The court examines the complaint “in depth and with
liberality to ascertain whether the fundament of a cause of action may be gleaned
even from an obscure statement of claim, opportunity being given to amend if
necessary.” Green v. Morgan Properties, 215 N.J. 431, 452 (quotation omitted).
The court considers only “the legal sufficiency of the alleged facts apparent
on the face of the challenged claim.” Rieder v. Dep’t of Transp., 221 N.J. Super.
547, 552 (App. Div. 1987). The examination of the complaint should be
“painstaking and undertaken with a generous and hospitable approach.”
Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002).
“[A] court may consider documents specifically referenced in the complaint
‘without converting the motion into one for summary judgment.’” Myska v. N.J.
Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App. Div. 2015) (quotation omitted).
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Analysis
Enacted January 18, 2022, IFCA provides that “a claimant, who is
unreasonably denied a claim for coverage or payment of benefits, or who
experiences an unreasonable delay for coverage or payment of benefits, under an
insured or underinsured motorist policy” may file a civil action for:
(1) an unreasonable delay or unreasonable denial of a
claim for payment of benefits under an insurance policy;
or
(2) any violation of the provisions of section 4 of
P.L.1947, 0.379 (C.17:29B-4).
[N.J.S.A. 17:29BB-3.]
Relevant here, the complaint alleges “Plaintiff was and continues to be
unreasonably denied a claim for coverage or payment of benefits” and “has or
continues to experience an unreasonable delay for coverage,” in violation of IFCA.
(Emphases added).
Progressive contends that the statutory bad faith cause of action should be
dismissed because IFCA does not apply retroactively and, accordingly, is
inapplicable where the accident predates the statute. That simple syllogism
presumes that the accident — and not the insurer’s handling of the claim —
establishes the benchmark date. That logic is, in a word, flawed.
At the outset, the court recognizes that “long standing principles of statutory
interpretation favor the prospective application of statutes.” NL Industries. Inc. v.
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State, 228 N.J. 280, 295 (2017) (citation omitted). Statutes may apply retroactively
in three circumstances: “(1) when the Legislature expresses its intent that the law
apply retroactively, either expressly or implicitly; (2) when an amendment is
curative; or (3) when the expectations of the parties so warrant.” James v. N.J.
Mfrs. Ins. Co., 216 N.J. 552, 563 (2014) (citation omitted).
Progressive contends that “IFCA will not apply retroactively to conduct that
occurred prior to its enactment because the legislature did not intend it to be
retroactive, because the IFCA is not a curative amendment, and because the parties
did not reasonably expect it would be retroactive.”
Assuming, arguendo, that Progressive’s conclusion vis-a-vis the retroactivity
analysis is correct — a contention this court need not reach — Progressive concludes
“any accidents that occurred on or after January 18, 2022, are subject to the statue,
and any accident taking place before that date is not.” (Emphases added.) The
court disagrees, as Progressive’s analysis of the benchmark ignores IFCA’s plain
and clear statutory language.
When interpreting a statute, a court “begin[s] with the statute’s plain
language — our polestar in discerning the Legislature’s intent.” L.W. v. Toms
River Reg’l Schs. Bd. of Educ., 189 N.J. 381, 400 (2007) (Zazzali, C.J.). “If the
language is plain and clearly reveals the statute’s meaning, the [c]ourt’s sole
function is to enforce the statute according to its terms.” Ibid. (quotation omitted).
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IFCA imposes liability for “unreasonable delay or unreasonable denial of a
claim for payment of benefits.” N.J.S.A. 17:29BB-3. Logic commands that,
pursuant to that plain language, an IFCA bad faith cause of action cannot arise
until after a claim has been made and until after: (1) no action has been taken for
an unreasonable period; or (2) the claim has been denied. Indeed, nothing in the
statute’s text — the court’s “polestar” in statutory interpretation — indicates that a
cause of action is tethered to the date of the underlying automobile accident which,
ultimately, gives rise to a subsequent claim for payment of benefits. In fact, the
word “accident” does not appear in N.J.S.A. 17:29BB-3. Progressive’s effort to re-
frame the motor vehicle accident as the benchmark to boot strap a statutory
retroactivity defense is without any textual support.
First, Progressive’s argument ignores Plaintiff's filing of a claim with it. In
its opposition, Plaintiffs counsel asserts that Plaintiff submitted a demand package
to Progressive on November 9, 2022 — well after the January 2022 effective date of
IFCA ~ and that approximately one month later, despite “injuries clearly exceeding
the $50,000 UM policy, [Progressive] made an offer of $19,000.” Those dates are
not disputed by Progressive who conceded, at oral argument, that the claim was
made after IFCA was enacted. Thus, if the claim is the benchmark, such was after
IFCA’s enactment, and the retroactivity analysis need not be done.
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Second, Progressive endeavors to sidestep Plaintiffs continuing violation
theory. Again, the complaint alleges that “Plaintiff was and continues to be
unreasonably denied a claim for coverage or payment of benefits and has or
continues to an unreasonable delay for coverage or payment of benefits under an
uninsured or underinsured motorist policy.” (Emphases added.) Thus, Plaintiff
contends that “Progressive [] has violated and_continues to violate” IFCA.
(Emphasis added.)
Progressive argues that, because the only date mentioned in the governing
complaint is the date of the accident itself, that is the only information on which
the court can assess the bad faith claim. Not so. Again, that assertion ignores the
core of the IFCA bad faith cause of action — that Progressive’s denial of benefits
owed under the Policy constitutes a continuing violation of IFCA.
In the analogous context of analyzing when a cause of action accrues for
purposes of calculating a statute of limitations, a continuing wrong — as alleged
here — restarts the clock with each successive wrong. As the Court observed,
“[w]hen an individual is subject to a continual, cumulative pattern of tortious
conduct, the statute of limitations does not begin to run until the wrongful action
ceases.” Wilson v. Walmart Stores, 158 N.J. 268, 272 (1999). To apply a different
principle of law here would be non-sensical. In both the statute of limitations and
retroactivity analyses, a court must determine when the cause of action arose. And
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be it discrimination as in Wilson or IFCA bad faith as here, the sine qua non of
both causes of action is an on-going, continuing pattern and practice and,
accordingly, the same continuing wrong theory must apply in both scenarios.
Progressive’s contention too ignores the fact that a bad faith IFCA cause of
action is directed at the insurer for post-accident conduct that can only logically
occur after the accident and after an aggrieved party has filed a claim for payment
of benefits. The insurer’s allegedly wrongful conduct does not occur at the scene
of the automobile accident, but rather after the accident. Thus, any endeavor to
frame the date of the underlying automobile accident as the benchmark event for
purposes of a statutory retroactivity analysis is little more than a red herring.
When read hospitality and generously, as the court must at the motion to
dismiss stage, the complaint, though sparse, sufficiently states the fundaments of a
cause of action under IFCA.
Accordingly, Progressive’s motion to dismiss is denied.
D 000 9 04 0 0 0 p g 0 a 0 40
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Attorney ID # 000142007
PAvmisANo & GoopMAN, P.A.
171 Main Street
P.O. Box 518
Woodbridge, New Jersey 07095-0518
(732) 634-6464
Attorneys for Plaintiff
: SUPERIOR COURT OF NEW JERSEY
VALERIE M. YURCHAK, | LAW DIVISION: MIDDLESEX COUNTY
: DOCKET NO. MID-L-369-23
Plaintiff,
CIVIL ACTION
vs.
EDGAR A. MARROQUIN-CASTILLO,
“JOHN DOES #1-10”, “ABC FIRST AMENDED COMPLAINT
CORPORATION #1-10”, “ABC BAR,” “DEF
BAR,” “GHI BAR,” “RICHARD ROE #1-10”,
“JANE DOE #i-10” and “JAMES DOE #i-10
(names being fictitious as true identities are
unknown) and NEW JERSEY
MANUFACTURER’S INSURANCE
COMPANY,
Defendants
Plaintiff, Valerie M. Yurchak, residing at 77 West 36" Street in the City of Bayonne, County
of Hudson and State of New Jersey, complaining against defendant herein says:
FIRST COUNT
1 On or about October 22, 2021, plaintiff, Valerie M. Yurchak was a passenger in a
motor vehicle owned and operated by Stephen M. Yurchak, which was proceeding in an easterly
direction on Route 10 in the Township of Parsippany-Troy Hills, County of Morris and State of
New Jersey.
eoe
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2 At the same time and place aforesaid, the defendant, Edgar A. Marroquin-Castillo
was the owner and operator of a motor vehicle, which motor vehicle was proceeding in an easterly
direction on Route 10 in the Township of Parsippany-Troy Hills, County of Morris and State of
New Jersey.
3 At the same time and place aforesaid, the defendant, Edgar A. Marroquin-Castillo,
so negligently operated his motor vehicle so as to cause a collision to occur with the vehicle plaintiff
was traveling in.
4 As a result of the aforesaid negligence of the defendant, plaintiff, Valerie M.
Yurchak, sustained severe personal injuries and other diverse damages.
5 Plaintiff has met the applicable threshold limit pursuant to N.I.S.A. 39:6A-8.
WHEREFORE, plaintiff, Valerie M. Yurchak, demands judgment against the defendant,
for damages and costs of suit and other relief the Court deems appropriate.
SECOND COUNT
1 Plaintiff, Valerie M. Yurchak, hereby repeats and reiterates each and every
allegation of the First Count as if the same were set forth herein at length.
2 Defendants, “JOHN DOES 1-10”, “ABC CORPORATION 1-10”, “ABC BAR”,
“DEF BAR”, “GHI BAR” and “RICHARD DOE #1-5” (names being fictitious as true identities are
unknown) were authorized to do business in the State of New Jersey and were the owners, holders
and/or licensees of a liquor license where alcoholic beverages were sold.
3 On October 22, 2021, the defendant, Edgar A. Marroquin-Castillo, indulged in the
drinking of alcoholic beverages at the premises of defendants, “ABC BAR”, “DEF BAR” and/or
“GHI BAR” (names being fictitious as true identities are unknown). Said alcoholic beverages were
sold and served to the defendant, Edgar A. Marroquin-Castillo, by agents, servants and/or
2
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employees of defendants, “ABC BAR”, “DEF BAR” and/or “GHI BAR” (names being fictitious as
true identities are unknown) and/or by “RICHARD DOE #1-5” (names being fictitious as true
identities are unknown) including “JANE DOES #1-5” and “JAMES DOE #1-5” (names being
fictitious as true identities are unknown) the managers, bartenders and/or servers of the
establishment on duty.
4. The defendants aforesaid individually and through their managers, bartenders,
servers, agents, servants and/or employees illegally, unlawfully, negligently and carelessly caused,
and permitted defendant, Edgar A. Marroquin-Castillo, to become visibly intoxicated while on their
premises, served the defendant while visibly intoxicated and thereupon permitted the defendant to
leave said premises in a visibly intoxicated state.
5 Defendant, Edgar A. Marroquin-Castillo, did operate his motor vehicle in an
intoxicated state and was involved in a collision involving said automobile.
6 The sale and service of the alcoholic beverages to the defendant, Edgar A.
Marroquin-Castillo, as stated aforesaid, rendered said defendant unable to properly operate and
control his vehicle, rendered him to be intoxicated and directly and proximately caused the plaintiff
to sustain serious and permanent injuries and other diverse damages.
7
For the reasons stated aforesaid, the defendants, Edgar A. Marroquin-Castillo and/or
“ABC BAR”, “DEF BAR” and/or “GHI BAR” and/or by “RICHARD DOE #1-5” (names being
fictitious as true identities are unknown) individually and through their managers, bartenders and/or
servers “JANE DOE #1-5” and “JAMES DOE #1-5” and their agents, servants, and/or employees
acted illegally, unlawfully, negligently and carelessly which conduct directly and proximately
caused the plaintiff to sustain serious and permanent injuries and other diverse damages, when the
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defendant, while operating his motor vehicle in an intoxicated condition caused a collision to occur
as aforesaid.
WHEREFORE, plaintiff demands judgment against the defendants, jointly, severally,
individually, and/or vicariously for damages, interest and costs of suit.
THIRD COUNT
1 Plaintiff, Valerie M. Yurchak, hereby repeats cach and every allegation of the First
Count and Second Counts as if the same were set forth in length.
2 At the same time and place aforesaid, the defendant, Edgar A. Marroquin-Castillo
was a lawful business invitee on the premises of “ABC BAR”, “DEF BAR”, “GHI BAR” and
“RICHARD DOE #1-5” (names being fictitious as true identities are unknown)
3 The defendants, “ABC BAR”, “DEF BAR”, “GHI BAR” and “RICHARD DOE #1-
5” (names being fictitious as true identities are unknown) jointly, individually and/or severally by
and through their agents, servants and/or employees did own, control, supervise, lease and/or
maintain the premises whereupon defendant, Edgar A. Marroquin-Castillo consumed alcoholic
beverages.
4 The actions of the defendants as aforesaid were performed negligently and carelessly
and as a result of which defendant, Edgar A. Marroquin-Castillo, was permitted to leave the subject
premises causing the subject motor vehicle accident in which the plaintiff, Valerie M. Yurchak
sustained severe, permanent injuries and other diverse damages.
WHEREFORE, plaintiff demands judgment against the defendants, jointly, severally,
individually, and/or vicariously for damages, interest and costs of suit.
FOURTH COUNT
1 Plaintiff, Valerie M. Yurchak, repeats the allegations contained in the First, Second
4
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and Third Counts as if the same were more fully set forth herein and made a part hereof.
2 On October 22, 2021, defendants JOHN DOES #6-10 (names being fictitious as true
identities are unknown) owned and/or occupied the premises where defendant, Edgar A. Marroquin-
Castillo attended a social gathering.
3 At that gathering defendants JOHN DOES #6-10 (names being fictitious as true
identities are unknown), individually and/or through their agents, servants, and/or employees,
negligently, carelessly, and recklessly provided alcoholic beverages to defendant, Edgar A.
Marroquin-Castillo while he was visibly intoxicated and permitted him to leave said premises in
a visibly intoxicated state when it was reasonably foresseable that he would operate a motor
vehicle.
4 As a result of the negligence and carelessness of the defendants, JOHN DOES #6-
10, plaintiff did operate his motor vehicle in an intoxicated state and was involved in a collision
with the plaintiff.
5 As a direct and proximate result of the defendants’ carelessness and negligence,
plaintiff sustained severe personal injuries and other diverse damages.
WHEREFORE, plaintiff demands judgment against defendants jointly, severally or in the
alternative for damages and costs of suit.
FIFTH COUNT
1 Plaintiff, Valerie M. Yurchak, repeats the allegations contained in the First, Second,
Third and Fourth Counts as if the same were more fully set forth herein and made a part hereof.
2 Defendant, Edgar A. Marroquin-Castillo’s conduct, which was wilful, wanton,
reckless and intentional, contributed to the occurrence of the accident of October 22, 2021.
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3 By reason of this conduct, the plaintiff, Valerie M. Yurchak was caused to be injured
and suffer injuries; she was caused to suffer great pain and will in the future be caused to suffer great
pain; she was caused to incur medical expenses and will in the future be caused to incur medical
expenses; she was caused to lose time from her employment and will in the future be caused to lose
time from her employment; she was caused to suffer permanent injuries.
WHEREFORE, the plaintiff, Valerie M. Yurchak demands judgment against the defendant,
Edgar A. Marroquin-Castillo on this Count for PUNITIVE DAMAGES.
SIXTH COUNT
1 Plaintiff, Valerie M. Yurchak, repeats the allegations contained in the First, Second,
Third, Fourth and Fifth Counts as if the same were more fully set forth herein and made a part
hereof.
2 Upon information and belief, the defendant, Edgar A. Marroquin-Castillo
was insured with Progressive Insurance Company and maintained a $15,000/$30,000 policy of
insurance.
3 At all times hereinafter mentioned, the plaintiff was insured by defendant, New
Jersey Manufacturer’s Insurance Company (who is authorized to do business in Middlesex
County) under policy # F10092564-3 with uninsured/underinsured motorist benefits by reason
providing $300,000 CSL in coverage to plaintiff.
4 The above-mentioned owner of said underinsured vehicle negligently and
carelessly owned and operated his aforesaid vehicle in a dangerous manner striking the vehicle
plaintiff was traveling in and in violation of the law. As a result, plaintiff, Edgar A. Marroquin-
Castillo sustained severe personal injuries and other diverse damages.
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5 As a result of the negligence as aforestated of the underinsured vehicle which
bears liability for the happening of this accident, plaintiff is entitled to compensation under the
uninsured/underinsured motorist coverage from New Jersey Manufacturer’s Insurance Company.
6 Plaintiff has met the applicable threshold limit pursuant to N.J.S.A. 39:6A-8.
WHEREFORE, plaintiff demands judgment against defendant, New Jersey
Manufacturer’s Insurance Company, for:
(@ A jury trial pursuant to the policy of insurance;
(b) Damages and costs of suit;
(c) Uninsured/underinsured coverage under New Jersey Manufacturer’s Insurance
Company’s policy of insurance;
(@) Counsel fees and costs;
() Any other relief which the Court deems fair and just.
SEVENTH COUNT
1 Plaintiff repeats each and every allegation of the First, Second, Third, Fourth, Fifth
and Sixth Counts as if the same were set forth herein at length.
2 The defendant, New Jersey Manufacturer’s Insurance Company, is an insurer which
issues, executes, renews or delivers insurance policies in this State or which is responsible for
determining claims made under those policies.
3 The defendant, New Jersey Manufacturer’s Insurance Company, has a fiduciary duty
to exercise good faith and fair dealing towards its insureds and other persons entitled to benefits
under its policies.
4. The plaintiff is a claimant injured in a motor vehicle accident who is entitled to
uninsured or underinsured motorist coverage under an insurance policy issued by the defendant,
7
MID-L-000369-23 04/05/2023 11:48:02 AM Pg19of20 Trans ID: LCV20231183540
New Jersey Manufacturer’s Insurance Company, and who asserts an entitlement to benefits owed
directly to or on behalf of an insured under that insurance policy.
5 The plaintiff was and continues to be unreasonably denied a claim for coverage or
payment of benefits and has and continues to experience an unreasonable delay for coverage or
payment of benefits under an uninsured or underinsured motorist policy issued by the defendant,
New Jersey Manufacturer’s Insurance Company.
6 The defendant, New Jersey Manufacturer’s Insurance Company, has engaged in and
continues to engage in an unreasonable delay or unreasonable denial of the plaintiff's claim for
payment of benefits.
7 The defendant, New Jersey Manufacturer’s Insurance Company, has violated and
continues to violate the provisions of the New Jersey Insurance Fair Conduct Act, N.J.S.A.
17:29BB-1; the Unfair Claim and Settlement Practices Act, N.J.S.A. 17:29B-4; and the New Jersey
Administrative Code, N.J.A.C, 11:2-17.1.
WHEREFORE, the plaintiff demands judgment against defendant, New Jersey
Manufacturer’s Insurance Company, for actual damages which shall include, but need not be
limited to actual trial verdicts; compensatory damages; pre-judgment interest; post-judgment
interest; reasonable attomey’s fees; reasonable litigation expenses; and any other damage that are
deemed fair, reasonable and just.
JURY DEMAND
Plaintiff demands a trial by jury on all issues.
CERTIFICATION PER R. 4:5-1
[hereby certify, R. 1:4-4(b) that the matter in controversy is not the subject of any other
action pending in any court or of a pending arbitration proceeding and none are contemplated.
8
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I further certify that this pleading contains no personal confidential identifiers. I
understand it is my responsibility to ensure there will be no personal confidential identifiers in
any subsequent pleadings filed.
I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.
DESIGNATION OF TRIAL COUNSEL PURSUANT TO RULE 4:25-4
Robert G. Goodman, Esq. of the firm of Palmisano & Goodman, P.A., attorneys for the
aforementioned plaintiff is hereby designated as trial counsel in the within matter.
PALMISANO & GOODMAN, P.A.
Attorneys for Plaintiff
» A LA GRAGORY G. GOODMAN, ESQ.
Dated: April 4, 2023
Preview
MID-L-000369-23 04/05/2023 11:48:02 AM Pglof2 Trans ID: LCV20231183540 Attorney ID#: 000142007 PALMISANO & GOODMAN, P.A. 171 Main Street P.O. Box 518 Woodbridge, New Jersey 07095-0518 (732) 634-6464 Attorneys for Plaintiff | SUPERIOR COURT OF NEW JERSEY SANDRA S. MATTSON, | LAW DIVISION: MIDDLESEX COUNTY : DOCKET NO. L-313-23 Plaintiff(s), CIVIL ACTION VS. JASON A. ATKINSON, BRYAN P. ATKINSON and HELEN M. ATKINSON, NOTICE OF MOTION JOHN DOES 1-10 (names are fictitious as true identities are unknown), ABC CORPS 1-10 (names are fictitious as true identities are unknown) and NEW JERSEY MANUFACTURER’S INSURANCE COMPANY, Defendant(s). To: Eric Kuper, Esq. Martin Kane & Kuper Attorney for defendant, New Jersey Manufacturer’s Insurance Co. Ada Gallicchio, Esq. Law Offices of Frank A. Viscomi Attorney for defendants, Atkinson Counselors: PLEASE TAKE NOTICE that the undersigned will apply to the above named Court, at the Court House, New Brunswick, New Jersey on Friday, April 28, 2023 at 9:00 a.m., or as soon thereafter as counsel may be heard, for an Order permitting plaintiff to file an Amended Complaint to add a bad faith claim against defendant, New Jersey Manufacturer’s Insurance Company upon the following grounds: MID-L-000369-23 04/05/2023 11:48:02 AM Pg2of2 Trans ID: LCV20231183540 Plaintiff will rely upon the attached Certification in support of this Motion. CERTIFICATION OF SERVICE Thereby certify that the original of this motion has been e-filed with the Middlesex County Clerk's office, New Brunswick, New Jersey and a copy has been forwarded to all counsel via e-filing. Pursuant to R. 1:6-2(d), the undersigned: (_) waives oral argument and consents to disposition on the papers (X) does not request oral argument at this time ( ) requests oral argument The discovery end date in this matter is scheduled for December 4, 2023. There is no arbitration/trial date scheduled. A proposed form of Order is annexed. PALMISANO & GOODMAN, P.A. ATTORNEYS FOR PLAINTIFF BY: A Ake GREGORY G. GOODMAN DATED: April 3, 2023 MID-L-000369-23 04/05/2023 11:48:02 AM Pglof2 Trans ID: LCV20231183540 Attorney ID#: 000142007 PALMISANO & GOODMAN, P.A. 171 Main Street P.O. Box 518 Woodbridge, New Jersey 07095-0518 (732) 634-6464 Attorneys for Plaintiff SUPERIOR COURT OF NEW JERSEY SANDRA S. MATTSON, 1 LAW DIVISION: MIDDLESEX COUNTY 1 DOCKET NO. L-313-23 Plaintiff(s), CIVIL ACTION vs. JASON A. ATKINSON, BRYAN P. ATKINSON and HELEN M. ATKINSON, ORDER JOHN DOES 1-10 (names are fictitious as true identities are unknown), ABC CORPS 1-10 (names are fictitious as true identities are unknown) and NEW JERSEY MANUFACTURER’S INSURANCE COMPANY, Defendant(s). This matter having been opened to the Court by way of motion returnable April 28, 2023 filed by the law firm of Palmisano & Goodman, P.A. attorneys for plaintiff for an Order allowing plaintiff to file an Amended Complaint, in the form annexed to the moving papers, and the Court having considered the matter and good cause appearing, IT IS on this day of April, 2023 ORDERED that the plaintiff be and is hereby granted leave to file and serve an Amended Complaint in the form annexed to the moving papers within ten (10) days of the date of this Order; and it is further MID-L-000369-23 04/05/2023 11:48:02 AM Pg2of2 Trans ID: LCV20231183540 ORDERED that service of this Order shall be deemed effectuated upon all parties upon its upload to eCourts. Pursuant to R. 1:5-1(a), movant shall serve a copy of this Order on all parties not served electronically within seven (7) days of the date of this Order. Papers considered: ( ) Moving Papers () Opposition SSC. MID-L-000369-23 04/05/2023 11:48:02 AM Pglof20 Trans ID: LCV20231183540 Attorney ID # 000142007 PaLMisANo & GoopMAN, P.A. 171 Main Street P.O. Box 518 Woodbridge, New Jersey 07095-0518 (732) 634-6464 Attorneys for Plaintiff 1 SUPERIOR COURT OF NEW JERSEY VALERIE M. YURCHAK, | LAW DIVISION: MIDDLESEX COUNTY DOCKET NO.: MID-L-369-23 Plaintiff, CIVIL ACTION VS. EDGAR A. MARROQUIN-CASTILLO, “JOHN DOES #1-10”, “ABC CERTIFICATION OF COUNSEL CORPORATION #1-10”, “ABC BAR,” “DEF BAR,” “GHI BAR,” “RICHARD ROE #1-10”, “JANE DOE #1-10” and “JAMES DOE #1-10 (names being fictitious as true identities are unknown) and NEW JERSEY MANUFACTURER’S INSURANCE COMPANY, Defendants I, GREGORY G. GOODMAN, hereby certify as follows: 1 Iam an Attorney-at-Law of the State of New Jersey and associated with the law firm of Palmisano & Goodman, attorneys for the plaintiffs in the above-entitled action. 2. On January 20, 2023, a Complaint was filed on behalf of the plaintiff which included a claim for uninsured motorist/underinsured motorist benefits against defendant, New Jersey Manufacturer’s Insurance Company (hereinafter referred to as “NJM”). 3 A claim for bad faith against the defendant, NJM was not included in the initial Complaint, Since the filing of this Complaint, a ruling has been made by the Honorable Gregory L. Acquaviva, finding plaintiff s right to present a claim for bad faith against the carrier is appropriate due to its ongoing violation of the IFCA. A.) (See Judge Acquaviva’s ruling annexed as Exhibit MID-L-000369-23 04/05/2023 11:48:02 AM Pg2of20 Trans ID: LCV20231183540 4 In the interest of furthering the salutary goals of consolidating the litigation of related controversies, preserving judicial resources and avoiding inconsistent outcomes on the same set of facts, plaintiff now seeks to amend her Complaint to add a bad faith claim against defendant, NJM. (See proposed Amended Complaint attached as Exhibit B.) 5. For the foregoing reasons, it is respectfully requested that the Court enter the Order permitting the filing of an Amended Complaint in the within action. Thereby certify that all of the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. /) 4 -— DATED: April 4, 2023 GREGORY G. GOODMAN MID-L-000369-23 04/05/2023 11:48:02 AM Pg3of20 Trans ID: LCV20231183540 MON-L-000178-23 03/22/2023 Pg 1 of8 Trans ID: LCV20231007646 SUPERIOR COURT OF NEW JERSEY EVOUN TAWFILES, LAW DIVISION - MONMOUTH COUNTY Plaintiff, CIVIL ACTION v. DOCKET NO. MON-L-178-23 STEPHEN WILSON, G HALL ENTERPRISES, LLC, SANDY’S TAXI OF MANASQUAN, SANDY’S NEW MANASQUAN TAXI, SANDY’S TAXI, GREGORY SCOTT HALL, ESTATE OF STEPHEN WILSON, PROGRESSIVE, JOHN DOE 1-10, and ABC CORP. 1-10, — Defendants. ORDER THIS MATTER having been brought before the Court by Progressive Garden State Insurance Company (Progressive), by and through its attorney, Kathleen P. Dapper, Esq., of Burns White LLC, and the Court having considered the moving papers and any opposition filed thereto, having heard oral argument, and for good cause having been shown: IT IS on this 22Nd_ day of MARCH , 2023, ORDERED that the motion to dismiss filed by Progressive is hereby DENIED, and IT IS FURTHER ORDERED that service of this Order shall be deemed effectuated upon all parties upon its upload to eCourts. Pursuant to Rule 1:5-1(a), movant shall serve a copy of this Order on all parties not served electronically within 7 days of the date of this Order. si Gregory £. Acquaviva Hon. Gregory L. Acquaviva, J.S.C. MID-L-000369-23 04/05/2023 11:48:02 AM Pg4of20 Trans ID: LCV20231183540 MON-L-000178-23 03/22/2023 Pg 2of8 Trans ID: LCV20231007646 Statement of Reasons This litigation concerns a November 2021 car accident between Plaintiff and Stephen Wilson, as well as an insurer’s alleged inadequate responses to Plaintiff's subsequent uninsured motorist claim. At the time of the accident, Plaintiff was insured pursuant to an automobile insurance policy (Policy) issued by Progressive Garden State Insurance Company (Progressive). Plaintiff filed a claim for Uninsured Motorist (UM) benefits with Progressive. Plaintiff alleges that Progressive engaged in and continues to engage in an unreasonable delay or unreasonable denial of Plaintiff's claim. On January 19, 2023, Plaintiff filed a complaint against Wilson, the putative corporate owner(s) of the vehicle operated by Wilson, and Progressive. The governing complaint asserts, among other causes of action, a bad faith claim against Progressive under the Insurance Fair Conduct Act, N.J.S.A. 17:29BB-1 to - 3 (IFCA). Progressive moves to dismiss the IFCA cause of action, arguing that IFCA, adopted after the accident, does not apply retroactively. The court disagrees because Progressive’s framing of the benchmark date ignores IFCA’s express and unambiguous language. MID-L-000369-23 04/05/2023 11:48:02 AM Pg5of20 Trans ID: LCV20231183540 MON-L-000178-23 03/22/2023 Pg3of8 Trans ID: LCV20231007646 Motion to Dismiss The issue before a court on a motion to dismiss is “whether a cause of action is suggested by the facts.” Velantzas v. Colgate-Palmolive Co.. 109 N.J. 189, 192 (1988). In deciding a Rule 4:6-2(e) motion, the court “must accept as true all factual assertions in the complaint . . . [and] accord to the non-moving party every reasonable inference from those facts.” Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008). The court examines the complaint “in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.” Green v. Morgan Properties, 215 N.J. 431, 452 (quotation omitted). The court considers only “the legal sufficiency of the alleged facts apparent on the face of the challenged claim.” Rieder v. Dep’t of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987). The examination of the complaint should be “painstaking and undertaken with a generous and hospitable approach.” Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002). “[A] court may consider documents specifically referenced in the complaint ‘without converting the motion into one for summary judgment.’” Myska v. N.J. Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App. Div. 2015) (quotation omitted). MID-L-000369-23 04/05/2023 11:48:02 AM Pg6of20 Trans ID: LCV20231183540 MON-L-000178-23 03/22/2023 Pg 4of8 Trans ID: LCV20231007646 Analysis Enacted January 18, 2022, IFCA provides that “a claimant, who is unreasonably denied a claim for coverage or payment of benefits, or who experiences an unreasonable delay for coverage or payment of benefits, under an insured or underinsured motorist policy” may file a civil action for: (1) an unreasonable delay or unreasonable denial of a claim for payment of benefits under an insurance policy; or (2) any violation of the provisions of section 4 of P.L.1947, 0.379 (C.17:29B-4). [N.J.S.A. 17:29BB-3.] Relevant here, the complaint alleges “Plaintiff was and continues to be unreasonably denied a claim for coverage or payment of benefits” and “has or continues to experience an unreasonable delay for coverage,” in violation of IFCA. (Emphases added). Progressive contends that the statutory bad faith cause of action should be dismissed because IFCA does not apply retroactively and, accordingly, is inapplicable where the accident predates the statute. That simple syllogism presumes that the accident — and not the insurer’s handling of the claim — establishes the benchmark date. That logic is, in a word, flawed. At the outset, the court recognizes that “long standing principles of statutory interpretation favor the prospective application of statutes.” NL Industries. Inc. v. MID-L-000369-23 04/05/2023 11:48:02 AM Pg7of20 Trans ID: LCV20231183540 MON-L-000178-23 03/22/2023 Pg 5of8 Trans ID: LCV20231007646 State, 228 N.J. 280, 295 (2017) (citation omitted). Statutes may apply retroactively in three circumstances: “(1) when the Legislature expresses its intent that the law apply retroactively, either expressly or implicitly; (2) when an amendment is curative; or (3) when the expectations of the parties so warrant.” James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563 (2014) (citation omitted). Progressive contends that “IFCA will not apply retroactively to conduct that occurred prior to its enactment because the legislature did not intend it to be retroactive, because the IFCA is not a curative amendment, and because the parties did not reasonably expect it would be retroactive.” Assuming, arguendo, that Progressive’s conclusion vis-a-vis the retroactivity analysis is correct — a contention this court need not reach — Progressive concludes “any accidents that occurred on or after January 18, 2022, are subject to the statue, and any accident taking place before that date is not.” (Emphases added.) The court disagrees, as Progressive’s analysis of the benchmark ignores IFCA’s plain and clear statutory language. When interpreting a statute, a court “begin[s] with the statute’s plain language — our polestar in discerning the Legislature’s intent.” L.W. v. Toms River Reg’l Schs. Bd. of Educ., 189 N.J. 381, 400 (2007) (Zazzali, C.J.). “If the language is plain and clearly reveals the statute’s meaning, the [c]ourt’s sole function is to enforce the statute according to its terms.” Ibid. (quotation omitted). MID-L-000369-23 04/05/2023 11:48:02 AM Pg 8of20 Trans ID: LCV20231183540 MON-L-000178-23 03/22/2023 Pg 6of8 Trans ID: LCV20231007646 IFCA imposes liability for “unreasonable delay or unreasonable denial of a claim for payment of benefits.” N.J.S.A. 17:29BB-3. Logic commands that, pursuant to that plain language, an IFCA bad faith cause of action cannot arise until after a claim has been made and until after: (1) no action has been taken for an unreasonable period; or (2) the claim has been denied. Indeed, nothing in the statute’s text — the court’s “polestar” in statutory interpretation — indicates that a cause of action is tethered to the date of the underlying automobile accident which, ultimately, gives rise to a subsequent claim for payment of benefits. In fact, the word “accident” does not appear in N.J.S.A. 17:29BB-3. Progressive’s effort to re- frame the motor vehicle accident as the benchmark to boot strap a statutory retroactivity defense is without any textual support. First, Progressive’s argument ignores Plaintiff's filing of a claim with it. In its opposition, Plaintiffs counsel asserts that Plaintiff submitted a demand package to Progressive on November 9, 2022 — well after the January 2022 effective date of IFCA ~ and that approximately one month later, despite “injuries clearly exceeding the $50,000 UM policy, [Progressive] made an offer of $19,000.” Those dates are not disputed by Progressive who conceded, at oral argument, that the claim was made after IFCA was enacted. Thus, if the claim is the benchmark, such was after IFCA’s enactment, and the retroactivity analysis need not be done. MID-L-000369-23 04/05/2023 11:48:02 AM Pg9of20 Trans ID: LCV20231183540 MON-L-000178-23 03/22/2023 Pg 7of8 Trans ID: LCV20231007646 Second, Progressive endeavors to sidestep Plaintiffs continuing violation theory. Again, the complaint alleges that “Plaintiff was and continues to be unreasonably denied a claim for coverage or payment of benefits and has or continues to an unreasonable delay for coverage or payment of benefits under an uninsured or underinsured motorist policy.” (Emphases added.) Thus, Plaintiff contends that “Progressive [] has violated and_continues to violate” IFCA. (Emphasis added.) Progressive argues that, because the only date mentioned in the governing complaint is the date of the accident itself, that is the only information on which the court can assess the bad faith claim. Not so. Again, that assertion ignores the core of the IFCA bad faith cause of action — that Progressive’s denial of benefits owed under the Policy constitutes a continuing violation of IFCA. In the analogous context of analyzing when a cause of action accrues for purposes of calculating a statute of limitations, a continuing wrong — as alleged here — restarts the clock with each successive wrong. As the Court observed, “[w]hen an individual is subject to a continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases.” Wilson v. Walmart Stores, 158 N.J. 268, 272 (1999). To apply a different principle of law here would be non-sensical. In both the statute of limitations and retroactivity analyses, a court must determine when the cause of action arose. And MID-L-000369-23 04/05/2023 11:48:02 AM Pg10of20 Trans ID: LCV20231183540 MON-L-000178-23 03/22/2023 Pg 8of8 Trans ID: LCV20231007646 be it discrimination as in Wilson or IFCA bad faith as here, the sine qua non of both causes of action is an on-going, continuing pattern and practice and, accordingly, the same continuing wrong theory must apply in both scenarios. Progressive’s contention too ignores the fact that a bad faith IFCA cause of action is directed at the insurer for post-accident conduct that can only logically occur after the accident and after an aggrieved party has filed a claim for payment of benefits. The insurer’s allegedly wrongful conduct does not occur at the scene of the automobile accident, but rather after the accident. Thus, any endeavor to frame the date of the underlying automobile accident as the benchmark event for purposes of a statutory retroactivity analysis is little more than a red herring. When read hospitality and generously, as the court must at the motion to dismiss stage, the complaint, though sparse, sufficiently states the fundaments of a cause of action under IFCA. Accordingly, Progressive’s motion to dismiss is denied. D 000 9 04 0 0 0 p g 0 a 0 40 MID-L-000369-23 04/05/2023 11:48:02 AM Pg 12 o0f20 Trans ID: LCV20231183540 Attorney ID # 000142007 PAvmisANo & GoopMAN, P.A. 171 Main Street P.O. Box 518 Woodbridge, New Jersey 07095-0518 (732) 634-6464 Attorneys for Plaintiff : SUPERIOR COURT OF NEW JERSEY VALERIE M. YURCHAK, | LAW DIVISION: MIDDLESEX COUNTY : DOCKET NO. MID-L-369-23 Plaintiff, CIVIL ACTION vs. EDGAR A. MARROQUIN-CASTILLO, “JOHN DOES #1-10”, “ABC FIRST AMENDED COMPLAINT CORPORATION #1-10”, “ABC BAR,” “DEF BAR,” “GHI BAR,” “RICHARD ROE #1-10”, “JANE DOE #i-10” and “JAMES DOE #i-10 (names being fictitious as true identities are unknown) and NEW JERSEY MANUFACTURER’S INSURANCE COMPANY, Defendants Plaintiff, Valerie M. Yurchak, residing at 77 West 36" Street in the City of Bayonne, County of Hudson and State of New Jersey, complaining against defendant herein says: FIRST COUNT 1 On or about October 22, 2021, plaintiff, Valerie M. Yurchak was a passenger in a motor vehicle owned and operated by Stephen M. Yurchak, which was proceeding in an easterly direction on Route 10 in the Township of Parsippany-Troy Hills, County of Morris and State of New Jersey. eoe MID-L-000369-23 04/05/2023 11:48:02 AM Pg 13 0f20 Trans ID: LCV20231183540 2 At the same time and place aforesaid, the defendant, Edgar A. Marroquin-Castillo was the owner and operator of a motor vehicle, which motor vehicle was proceeding in an easterly direction on Route 10 in the Township of Parsippany-Troy Hills, County of Morris and State of New Jersey. 3 At the same time and place aforesaid, the defendant, Edgar A. Marroquin-Castillo, so negligently operated his motor vehicle so as to cause a collision to occur with the vehicle plaintiff was traveling in. 4 As a result of the aforesaid negligence of the defendant, plaintiff, Valerie M. Yurchak, sustained severe personal injuries and other diverse damages. 5 Plaintiff has met the applicable threshold limit pursuant to N.I.S.A. 39:6A-8. WHEREFORE, plaintiff, Valerie M. Yurchak, demands judgment against the defendant, for damages and costs of suit and other relief the Court deems appropriate. SECOND COUNT 1 Plaintiff, Valerie M. Yurchak, hereby repeats and reiterates each and every allegation of the First Count as if the same were set forth herein at length. 2 Defendants, “JOHN DOES 1-10”, “ABC CORPORATION 1-10”, “ABC BAR”, “DEF BAR”, “GHI BAR” and “RICHARD DOE #1-5” (names being fictitious as true identities are unknown) were authorized to do business in the State of New Jersey and were the owners, holders and/or licensees of a liquor license where alcoholic beverages were sold. 3 On October 22, 2021, the defendant, Edgar A. Marroquin-Castillo, indulged in the drinking of alcoholic beverages at the premises of defendants, “ABC BAR”, “DEF BAR” and/or “GHI BAR” (names being fictitious as true identities are unknown). Said alcoholic beverages were sold and served to the defendant, Edgar A. Marroquin-Castillo, by agents, servants and/or 2 MID-L-000369-23 04/05/2023 11:48:02 AM Pg 14 of 20 Trans ID: LCV20231183540 employees of defendants, “ABC BAR”, “DEF BAR” and/or “GHI BAR” (names being fictitious as true identities are unknown) and/or by “RICHARD DOE #1-5” (names being fictitious as true identities are unknown) including “JANE DOES #1-5” and “JAMES DOE #1-5” (names being fictitious as true identities are unknown) the managers, bartenders and/or servers of the establishment on duty. 4. The defendants aforesaid individually and through their managers, bartenders, servers, agents, servants and/or employees illegally, unlawfully, negligently and carelessly caused, and permitted defendant, Edgar A. Marroquin-Castillo, to become visibly intoxicated while on their premises, served the defendant while visibly intoxicated and thereupon permitted the defendant to leave said premises in a visibly intoxicated state. 5 Defendant, Edgar A. Marroquin-Castillo, did operate his motor vehicle in an intoxicated state and was involved in a collision involving said automobile. 6 The sale and service of the alcoholic beverages to the defendant, Edgar A. Marroquin-Castillo, as stated aforesaid, rendered said defendant unable to properly operate and control his vehicle, rendered him to be intoxicated and directly and proximately caused the plaintiff to sustain serious and permanent injuries and other diverse damages. 7 For the reasons stated aforesaid, the defendants, Edgar A. Marroquin-Castillo and/or “ABC BAR”, “DEF BAR” and/or “GHI BAR” and/or by “RICHARD DOE #1-5” (names being fictitious as true identities are unknown) individually and through their managers, bartenders and/or servers “JANE DOE #1-5” and “JAMES DOE #1-5” and their agents, servants, and/or employees acted illegally, unlawfully, negligently and carelessly which conduct directly and proximately caused the plaintiff to sustain serious and permanent injuries and other diverse damages, when the MID-L-000369-23 04/05/2023 11:48:02 AM Pg15 of 20 Trans ID: LCV20231183540 defendant, while operating his motor vehicle in an intoxicated condition caused a collision to occur as aforesaid. WHEREFORE, plaintiff demands judgment against the defendants, jointly, severally, individually, and/or vicariously for damages, interest and costs of suit. THIRD COUNT 1 Plaintiff, Valerie M. Yurchak, hereby repeats cach and every allegation of the First Count and Second Counts as if the same were set forth in length. 2 At the same time and place aforesaid, the defendant, Edgar A. Marroquin-Castillo was a lawful business invitee on the premises of “ABC BAR”, “DEF BAR”, “GHI BAR” and “RICHARD DOE #1-5” (names being fictitious as true identities are unknown) 3 The defendants, “ABC BAR”, “DEF BAR”, “GHI BAR” and “RICHARD DOE #1- 5” (names being fictitious as true identities are unknown) jointly, individually and/or severally by and through their agents, servants and/or employees did own, control, supervise, lease and/or maintain the premises whereupon defendant, Edgar A. Marroquin-Castillo consumed alcoholic beverages. 4 The actions of the defendants as aforesaid were performed negligently and carelessly and as a result of which defendant, Edgar A. Marroquin-Castillo, was permitted to leave the subject premises causing the subject motor vehicle accident in which the plaintiff, Valerie M. Yurchak sustained severe, permanent injuries and other diverse damages. WHEREFORE, plaintiff demands judgment against the defendants, jointly, severally, individually, and/or vicariously for damages, interest and costs of suit. FOURTH COUNT 1 Plaintiff, Valerie M. Yurchak, repeats the allegations contained in the First, Second 4 MID-L-000369-23 04/05/2023 11:48:02 AM Pg 16 of20 Trans ID: LCV20231183540 and Third Counts as if the same were more fully set forth herein and made a part hereof. 2 On October 22, 2021, defendants JOHN DOES #6-10 (names being fictitious as true identities are unknown) owned and/or occupied the premises where defendant, Edgar A. Marroquin- Castillo attended a social gathering. 3 At that gathering defendants JOHN DOES #6-10 (names being fictitious as true identities are unknown), individually and/or through their agents, servants, and/or employees, negligently, carelessly, and recklessly provided alcoholic beverages to defendant, Edgar A. Marroquin-Castillo while he was visibly intoxicated and permitted him to leave said premises in a visibly intoxicated state when it was reasonably foresseable that he would operate a motor vehicle. 4 As a result of the negligence and carelessness of the defendants, JOHN DOES #6- 10, plaintiff did operate his motor vehicle in an intoxicated state and was involved in a collision with the plaintiff. 5 As a direct and proximate result of the defendants’ carelessness and negligence, plaintiff sustained severe personal injuries and other diverse damages. WHEREFORE, plaintiff demands judgment against defendants jointly, severally or in the alternative for damages and costs of suit. FIFTH COUNT 1 Plaintiff, Valerie M. Yurchak, repeats the allegations contained in the First, Second, Third and Fourth Counts as if the same were more fully set forth herein and made a part hereof. 2 Defendant, Edgar A. Marroquin-Castillo’s conduct, which was wilful, wanton, reckless and intentional, contributed to the occurrence of the accident of October 22, 2021. MID-L-000369-23 04/05/2023 11:48:02 AM Pg17 of 20 Trans ID: LCV20231183540 3 By reason of this conduct, the plaintiff, Valerie M. Yurchak was caused to be injured and suffer injuries; she was caused to suffer great pain and will in the future be caused to suffer great pain; she was caused to incur medical expenses and will in the future be caused to incur medical expenses; she was caused to lose time from her employment and will in the future be caused to lose time from her employment; she was caused to suffer permanent injuries. WHEREFORE, the plaintiff, Valerie M. Yurchak demands judgment against the defendant, Edgar A. Marroquin-Castillo on this Count for PUNITIVE DAMAGES. SIXTH COUNT 1 Plaintiff, Valerie M. Yurchak, repeats the allegations contained in the First, Second, Third, Fourth and Fifth Counts as if the same were more fully set forth herein and made a part hereof. 2 Upon information and belief, the defendant, Edgar A. Marroquin-Castillo was insured with Progressive Insurance Company and maintained a $15,000/$30,000 policy of insurance. 3 At all times hereinafter mentioned, the plaintiff was insured by defendant, New Jersey Manufacturer’s Insurance Company (who is authorized to do business in Middlesex County) under policy # F10092564-3 with uninsured/underinsured motorist benefits by reason providing $300,000 CSL in coverage to plaintiff. 4 The above-mentioned owner of said underinsured vehicle negligently and carelessly owned and operated his aforesaid vehicle in a dangerous manner striking the vehicle plaintiff was traveling in and in violation of the law. As a result, plaintiff, Edgar A. Marroquin- Castillo sustained severe personal injuries and other diverse damages. MID-L-000369-23 04/05/2023 11:48:02 AM Pg18o0f20 Trans ID: LCV20231183540 5 As a result of the negligence as aforestated of the underinsured vehicle which bears liability for the happening of this accident, plaintiff is entitled to compensation under the uninsured/underinsured motorist coverage from New Jersey Manufacturer’s Insurance Company. 6 Plaintiff has met the applicable threshold limit pursuant to N.J.S.A. 39:6A-8. WHEREFORE, plaintiff demands judgment against defendant, New Jersey Manufacturer’s Insurance Company, for: (@ A jury trial pursuant to the policy of insurance; (b) Damages and costs of suit; (c) Uninsured/underinsured coverage under New Jersey Manufacturer’s Insurance Company’s policy of insurance; (@) Counsel fees and costs; () Any other relief which the Court deems fair and just. SEVENTH COUNT 1 Plaintiff repeats each and every allegation of the First, Second, Third, Fourth, Fifth and Sixth Counts as if the same were set forth herein at length. 2 The defendant, New Jersey Manufacturer’s Insurance Company, is an insurer which issues, executes, renews or delivers insurance policies in this State or which is responsible for determining claims made under those policies. 3 The defendant, New Jersey Manufacturer’s Insurance Company, has a fiduciary duty to exercise good faith and fair dealing towards its insureds and other persons entitled to benefits under its policies. 4. The plaintiff is a claimant injured in a motor vehicle accident who is entitled to uninsured or underinsured motorist coverage under an insurance policy issued by the defendant, 7 MID-L-000369-23 04/05/2023 11:48:02 AM Pg19of20 Trans ID: LCV20231183540 New Jersey Manufacturer’s Insurance Company, and who asserts an entitlement to benefits owed directly to or on behalf of an insured under that insurance policy. 5 The plaintiff was and continues to be unreasonably denied a claim for coverage or payment of benefits and has and continues to experience an unreasonable delay for coverage or payment of benefits under an uninsured or underinsured motorist policy issued by the defendant, New Jersey Manufacturer’s Insurance Company. 6 The defendant, New Jersey Manufacturer’s Insurance Company, has engaged in and continues to engage in an unreasonable delay or unreasonable denial of the plaintiff's claim for payment of benefits. 7 The defendant, New Jersey Manufacturer’s Insurance Company, has violated and continues to violate the provisions of the New Jersey Insurance Fair Conduct Act, N.J.S.A. 17:29BB-1; the Unfair Claim and Settlement Practices Act, N.J.S.A. 17:29B-4; and the New Jersey Administrative Code, N.J.A.C, 11:2-17.1. WHEREFORE, the plaintiff demands judgment against defendant, New Jersey Manufacturer’s Insurance Company, for actual damages which shall include, but need not be limited to actual trial verdicts; compensatory damages; pre-judgment interest; post-judgment interest; reasonable attomey’s fees; reasonable litigation expenses; and any other damage that are deemed fair, reasonable and just. JURY DEMAND Plaintiff demands a trial by jury on all issues. CERTIFICATION PER R. 4:5-1 [hereby certify, R. 1:4-4(b) that the matter in controversy is not the subject of any other action pending in any court or of a pending arbitration proceeding and none are contemplated. 8 MID-L-000369-23 04/05/2023 11:48:02 AM Pg 20 o0f20 Trans ID: LCV20231183540 I further certify that this pleading contains no personal confidential identifiers. I understand it is my responsibility to ensure there will be no personal confidential identifiers in any subsequent pleadings filed. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. DESIGNATION OF TRIAL COUNSEL PURSUANT TO RULE 4:25-4 Robert G. Goodman, Esq. of the firm of Palmisano & Goodman, P.A., attorneys for the aforementioned plaintiff is hereby designated as trial counsel in the within matter. PALMISANO & GOODMAN, P.A. Attorneys for Plaintiff » A LA GRAGORY G. GOODMAN, ESQ. Dated: April 4, 2023