                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE 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.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4604-18T2

TONY PING YEW,

          Plaintiff-Appellant,

v.

INSERVCO INSURANCE
SERVICES, INC.,

     Defendant-Respondent.
__________________________

                   Submitted May 11, 2020 – Decided June 22, 2020

                   Before Judges Messano and Ostrer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Docket No. L-5407-18.

                   Tony Ping Yew, appellant pro se.

                   Margolis Edelstein, attorneys for respondent (Emery J.
                   Mishky and Stephanie Yoon-Sun Cho, on the brief).

PER CURIAM

          Tony Ping Yew appeals from an order dismissing with prejudice his

complaint that Inservco Insurance Services, Inc., the third-party claims
administrator for Robert Wood Johnson University Hospital (RWJUH) , failed

to negotiate a settlement of Yew's claim against the hospital. The court found

Inservco had no duty to engage in settlement negotiations with plaintiff because

it was not the hospital's insurer. Having reviewed Yew's arguments in light of

the record and applicable law, we affirm.

       After Yew's godfather died at RWJUH, Yew filed two separate

complaints, later consolidated, alleging medical malpractice by the hospital and

its staff.1 He also filed a complaint against Inservco alleging unfair trade

practices, bad faith, and gross negligence for failure to negotiate a settlement

with him on behalf of RWJUH. Yew alleged he was a "third party with [a]

vested interest." He attached as an exhibit to his complaint a letter from Inservco

denying his claim.     In the letter, Inservco asserted it was a "third party

administrator for . . . RWJUH . . . with regard to their professional and general

liability self-insurance claims program."

       Inservco moved for dismissal of Yew's complaint for failure to state a

claim under Rule 4:6-2(e).       Inservco argued it had no duty to engage in

settlement negotiations with Yew because it was a third-party claims

administrator, not an insurer.


1
    Those complaints were later dismissed with prejudice.
                                                                           A-4604-18T2
                                        2
      After oral argument, the court found Inservco established it was not the

insurer of the named defendants in the medical malpractice case. The court

noted Inservco was a third-party claims administrator, and thus, had no duty to

negotiate a settlement on behalf of RWJUH. The trial judge stated orally she

would grant Inservco's motion to dismiss without prejudice, but on the same day

entered an order granting the motion with prejudice. The judge also denied as

moot Yew's motions to compel discovery and to amend his complaint to add

Inservco's parent, Penn National Insurance.

      Yew filed a motion for reconsideration, and leave to amend the complaint

to add Penn National. The court denied Yew's motions, holding he had not

presented anything new.     Yew then filed yet another motion to amend his

complaint to add Penn National as a defendant. The court treated this motion as

a "second Notice of Motion for Reconsideration," and denied it as well.

      Yew appeals from these orders. Yew argues: the court considered matters

outside the record; his complaint should not have been dismissed because he

alleged sufficient facts to support his claims; the court erred by dismissing his

complaint with prejudice; the judge created an appearance of impropriety; and

his motions to compel discovery and amend his complaint should not have been

dismissed as moot.


                                                                          A-4604-18T2
                                       3
      We review de novo the trial court's dismissal order under Rule 4:6-2(e),

Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237

N.J. 91, 108 (2019), applying the same standard as the trial court,

MasTec Renewables Constr. Co., Inc. v. SunLight Gen. Mercer Solar, LLC, 462

N.J. Super. 297, 309 (App. Div. 2020). "Our review is limited to the 'legal

sufficiency of the facts alleged in the complaint.'" J-M Mfg. Co. v. Phillips &

Cohen, LLP, 443 N.J. Super. 447, 453 (App. Div. 2015) (quoting Donato v.

Moldow, 374 N.J. Super. 475, 482 (App. Div. 2005)). We assume plaintiff's

factual allegations are true, and draw all inferences in plaintiff's favor. Ibid.

Nonetheless, dismissal is appropriate if "the complaint states no basis for relief

and discovery would not provide one[.]" Banco Popular N. Am. v. Gandi, 184

N.J. 161, 166 (2005).

      Applying that standard, we discern no error.            Contrary to Yew's

arguments, the court did not improperly consider materials outside his complaint

in finding Inservco was not an insurer. The trial court relied on an exhibit

attached to the complaint which stated Inservco was a "third party administrator

for . . . RWJUH . . . with regard to their professional and general liability self -

insurance claims program." See Myska v. N.J. Mfrs. Ins. Co., 440 N.J. Super.

458, 482 (App. Div. 2015) ("In evaluating motions to dismiss, courts consider


                                                                            A-4604-18T2
                                         4
'allegations in the complaint, exhibits attached to the complaint, matters of

public record, and documents that form the basis of a claim. '") (quoting Gandi,

184 N.J. at 183).

      We are also satisfied that the trial court correctly found that Yew failed to

allege sufficient facts to state a claim against Inservco. Generally, "the insurer

has    an    affirmative     duty     to       explore   settlement   possibilities."

Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 493 (1974). However,

in this case, Inservco is not the insurer.

      Furthermore, Yew is neither the insured, nor the insured's assignee. "An

insurer's duty of good faith and fair dealing . . . has never been applied in New

Jersey to recognize a bad-faith claim by an individual or entity that is not the

insured or an assignee of the insured's contract rights." Ross v. Lowitz, 222 N.J.

494, 514 (2015). In addition, Yew provided no proof that he was authorized to

negotiate with anyone to settle a claim arising out of alleged medical malpractice

in his godfather's treatment; he filed suit in his own name, and not as a

representative of the decedent or the estate. See Kern v. Kogan, 93 N.J. Super.

459, 473 (Law Div. 1967) (noting that "the administrator Ad prosequendum is

the proper party to bring a wrongful death action and the general administrator

is the proper party to institute a survival action").


                                                                             A-4604-18T2
                                           5
      Although a motion to dismiss pursuant to Rule 4:6-2(e) is ordinarily

granted without prejudice to filing an amended complaint, see Printing Mart-

Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989), dismissal with

prejudice is appropriate if any effort to amend would be futile, Johnson v.

Glassman, 401 N.J. Super. 222. 246-47 (App. Div. 2008).            The defects in

plaintiff's pleading against Inservco are incurable. Therefore, dismissal with

prejudice was warranted.2


2
  Although the order dismissing the complaint with prejudice was proper, we
are constrained to express our disapproval of the judge's decision, at the close
of oral argument, to entertain Inservco's counsel's request to speak to the judge
off-the-record, and, apparently ex parte. After the judge orally decided to
dismiss the complaint, counsel and plaintiff pro se each stated he wished to ask
a question. The judge heard plaintiff first. He asked if the order would be
without prejudice and the judge assured him it would. Then, the court turned to
Inservco's counsel.

            Court: Counsel, you had a question?
            Counsel: Yes.
            Court: Okay.
            Counsel: I was hoping off the record, just 'cause it's
            simply about --
            Court: Oh, okay. Hold on one second.

       The transcript ends there, without indicating the subject of the
conversation. Plaintiff speculates that the conversation led the judge to convert
the order to dismissal with prejudice, despite her oral assurance to the contrary.
There is no evidence that the judge and counsel discussed the case at all. Yet,
plaintiff's concern is a reasonable outcome of the court's decision to entertain an
ex parte conversation with counsel, particularly inasmuch as counsel inquired


                                                                           A-4604-18T2
                                        6
      Finally, Yew's appeal of the court's orders denying his motions to amend

his complaint to add Penn National is moot. After the court entered its order in

this case, Yew successfully filed a complaint against Penn National in a separate

lawsuit. A dispositive order has already been entered in that case. See Advance

Elec. Co., Inc. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166

(App. Div. 2002) (stating that a case is moot if a "judgment cannot grant

effective relief").

      To the extent not addressed, plaintiff's remaining points lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




immediately after the court ruled and the subject of the discussion was not
disclosed. "[J]udges must avoid acting in a biased way or in a manner that may
be perceived as partial." DeNike v. Cupo, 196 N.J. 502, 514 (2008). However,
the misstep does not warrant reversal, as plaintiff requests, as the complaint
remains incurably flawed. See Goldfarb v. Solimine, 460 N.J. Super. 22, 34
(App. Div.) (noting that the appropriate remedy for an appearance of impropriety
"depends on the facts and circumstances"), certif. granted on other grounds, 240
N.J. 83 (2019).
                                                                         A-4604-18T2
                                       7
