                                 NOT FOR PUBLICATION WITHOUT THE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 limi ted. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4858-16T2

MIA JANE STEPHENS,
General Administrator and
Administrator ad Prosequendum
of the Estate of Andre Henry,
Deceased,

          Plaintiff-Appellant,

v.

48 BRANFORD PLACE ASSOCIATES,
LLC, DUBROW MANAGEMENT CORP.,
S.W.A.T. SECURITY, DAVID CONSTANTINE
BROOKS a/k/a MAVADO, individually and d/b/a
MANSION RECORDS and GULLY SIDE
PROMOTIONS, GRAMMY KID ENERTAINMENT,
DAVID DUBROW, individually and as the servant,
agent, and employee of 48 BRANFORD PLACE
ASSOCIATES, LLC and DUBROW
MANAGEMENT CORP., STEVEN LENTER,
individually and as the servant, agent and employee
of 48 BRANFORD PLACE ASSOCIATES, LLC,
177 FRANKLIN STREET ASSOCIATES, LLC,
CHEN AND RICO CORP., POPCORN PLAZA,
INC., PALLADIUM ASSOCIATES, LLC, and
HORACE BINGHAM, individually and as the servant,
agent and employee of PALLADIUM ASSOCIATES,
LLC, KACY RANKINE, individually and as the
servant, agent and employee of PALLADIUM
ASSOCIATES, LLC, SENSATIONS
ENTERTAINMENT GROUP, LLC, and
JONATHAN RASHEED HARRIS,
individually and as the servant,
agent and employee of SENSATIONS
ENTERTAINMENT GROUP, LLC,
CURTIS JONES and KELLY
WILLOUGHBY d/b/a SENSATIONS
ENTERTAINMENT COMPLEX and
SOBEL AFFILIATES INC.,

      Defendants,

and

RAMELLE MASSEY, individually
and as the servant, agent and employee
of MASSEY INSURANCE AGENCY,

     Defendants-Respondents.
_____________________________________________

           Argued October 2, 2018 – Decided January 16, 2019

           Before Judges Rothstadt, Gilson and Natali.

           On appeal from Superior Court of New Jersey, Law
           Division, Essex County, Docket No. L-0070-14.

           Harvey R. Pearlman argued the cause for appellant
           (Friedman, Kates, Pearlman & Fitzgerald, PA,
           attorneys; Harvey R. Pearlman, of counsel and on the
           briefs; James Fitzgerald, on the briefs).

           Colin P. Hackett argued the cause for respondents
           (Lewis, Brisbois, Bisgaard & Smith, LLP, attorneys;
           Colin P. Hackett, of counsel and on the brief).


                                                                  A-4858-16T2
                                         2
PER CURIAM

      Plaintiff, Mia Jane Stephens, appeals from the Law Division's May 23,

2017 judgment dismissing her complaint, which the trial court entered after a

jury returned a "no cause" verdict in favor of defendants, Massey Insurance

Agency (the Agency) and its principal, Ramelle Massey. In her complaint,

plaintiff, who was the administrator of her late husband Andre Henry's estate,

alleged that defendants negligently failed to obtain appropriate insurance

coverage for the business that leased the premises where her husband was killed

during a shooting.

      On appeal, plaintiff argues that the trial court erred by 1) not identifying

her to the jury as the administrator of her husband's estate; 2) not charging the

jury with the correct duty of care that defendants owed to her husband; 3)

allowing defense counsel to insinuate to the jury that defendants would have to

personally pay a judgment that was covered by insurance; and 4) failing to tailor

its charge to the facts of the case. Plaintiff contends that the court's errors denied

her a fair trial and further, that the weight of the evidence did not support the

jury's verdict. For the reasons that follow, we affirm.




                                                                              A-4858-16T2
                                          3
                                           I.

      The facts giving rise to plaintiff's claim are summarized as follows.

Plaintiff's husband was tragically and randomly shot and killed during a concert

at business premises that were operated by Palladium Associates (Palladium)

and owned by 48 Branford Place Associates (48 Branford). Palladium's and 48

Branford's liability insurance policies excluded coverage for an assault and

battery at the premises.

      Palladium's principal, Kacy Rankine, obtained its policy through the

Agency. At the trial held in this matter, the dispute focused on whether Massey

secured the correct insurance for Palladium based upon the information Rankine

provided to her.

      According to Massey, Rankine contacted her in writing and advised that

he and another individual were opening a business at the subject premises and

taking over the existing lease.   Rankine contacted Massey because he had

obtained insurance from the Agency on prior occasions for another business that

was primarily involved with producing concerts at various locations. According

to Massey, Rankine wrote to her asking her to secure both liability and excess

"umbrella" coverage for the new business. His note stated that he was opening

a "dance hall."


                                                                        A-4858-16T2
                                       4
      Massey called Rankine to obtain a description of the premises and for

clarification of the business' proposed operations. She understood from that

conversation that Rankine would be operating a "ballroom café," which he said

would be used as a banquet facility for weddings, birthdays, and similar events,

but there was no liquor license and the premises would not be used for

entertainment purposes. In their conversation, Rankine described the type of

food that would be served and the building.

      Massey took notes of her conversation with Rankine and based on the

information he provided, she completed an application and sought quotes for

coverage, which she later provided to Rankine. On the application, Massey

noted that Palladium planned to use the premises for a banquet hall. When she

quoted Rankine the premium for umbrella coverage, Rankine stated that he was

still negotiating the lease and would get back to Massey, but never did. For that

reason, Massey only obtained the basic liability policy that excluded coverage

for assault and battery to invitees. According to Massey, she never met with

Rankine to discuss anything about Palladium's insurance requirements and he

never provided a copy of the lease.

      Rankine disagreed with Massey's recollection and claimed he told her

there would be both entertainment and alcohol at the premises, although he


                                                                         A-4858-16T2
                                       5
considered banquets and weddings to be entertainment. Rankine admitted that

he told Massey Palladium did not have a liquor license for the premises. He

also stated that he met with Massey and provided her with a copy of the lease,

the front of which described the use for the demised premises as a "dining hall,

bar restaurant, club." He claimed that the application Massey completed stated

that alcohol would be served on the premises and that the lease's description of

Palladium's uses obviously inferred that alcohol would be served. In addition,

Rankine believed that the premium he paid for insurance included umbrella

coverage.

      On the night that plaintiff's husband was killed, Palladium rented out the

premises to a third party for a concert. Under the terms of its rental, Palladium

was responsible for providing security at the premises. After plaintiff notified

Palladium of her claim and it turned it over to its insurance carrier, Palladium

received notification that coverage was denied under the exclusion for assault

and battery.

      After her husband's death, plaintiff filed suit alleging that 48 Branford and

its tenant Palladium were negligent in failing to provide adequate security for

the event, which was a proximate cause of her husband's death. Through a later

amendment to her complaint, plaintiff joined the Agency and Massey, alleging


                                                                           A-4858-16T2
                                        6
that they were negligent in failing to obtain proper coverage for Palladium. Prior

to trial, the court granted 48 Branford's motion for summary judgment and the

Agency's and Massey's motion to sever plaintiff's claims against them for trial.

      The court conducted a bench trial limited to plaintiff's claims against

Palladium.    At the bench trial, neither Palladium nor Rankine presented a

defense to plaintiff's claims because prior to trial, plaintiff voluntarily dismissed

her claim against Rankine in exchange for his agreement to cooperate in her

pursuit of the claims against the Agency and Massey, the only remaining

defendants in the case. After considering the evidence, the trial court entered

judgment on January 26, 2017, in favor of plaintiff and against Palladium in the

amount of $1,000,000.

      The court later presided over a jury trial of plaintiff's professional

negligence claims against the Agency and Massey. At the conclusion of trial,

the jury was asked to determine whether the Agency and Massey "deviated from

the standard of care required of an insurance broker," and, if so, to also

determine causation. The jury was not asked to determine damages as those

were established in the earlier bench trial. The jury rendered a verdict on May

5, 2017, finding that the Agency and Massey did not "deviate[] from the standard

of care required of an insurance broker."


                                                                             A-4858-16T2
                                         7
      Following the jury verdict, plaintiff moved for a new trial. In support of

her argument, plaintiff raised the same contentions she now raises on appeal.

The trial court denied plaintiff's motion on June 23, 2017, stating its reasons in

a cogent eleven-page written decision. This appeal followed.

                                            II.

      We begin our review by considering plaintiff's contention that the trial

court improperly did not disclose to the jury that she was suing in her

administrative capacity and only disclosed that she suffered a loss without any

further explanation. In response to the Agency's and Massey's motion in limine,

the trial court concluded that evidence of plaintiff's status and the nature of her

loss were not relevant or probative "and [did] nothing more nor less than inflame

the jury." Referring to the fact that plaintiff's damages were established in the

earlier bench trial, the trial court explained that information about plaintiff's

husband having been killed at the premises would be too prejudicial. The trial

court stated:

            To tell . . . the jury otherwise and to move beyond the
            issue of professional negligence would be to create a
            situation where the liability relative to the underlying
            cause of action would become fair game. And [the
            court is] not [going to] allow that to happen, because to
            do that would . . . essentially denigrate the . . .
            determination that has already been made via the entry
            of the judgment.

                                                                           A-4858-16T2
                                        8
                   ....

             To do anything [else] would just cause confusion to the
             jury and . . . have a great potential for prejudicing the
             [d]efendant when really all the jury has to determine is
             the existence of professional negligence of an insurance
             broker.

      In its statement of the case to the jury, the trial court identified plaintiff

by name and in its final charge, explained that plaintiff had suffered a loss.

According to plaintiff, the court's failure to properly inform the jury of her status

and her loss violated her constitutional rights and her free access to the courts.

We disagree.

      Our review of a trial judge's evidential rulings is "limited to examining

the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)

(citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). "When a trial court admits

or excludes evidence, its determination is 'entitled to deference absent a showing

of an abuse of discretion, i.e., [that] there has been a clear error of judgment.'"

Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) (alteration in original)

(quoting State v. Brown, 170 N.J. 138, 147 (2001)). Therefore, "we will reverse

an evidentiary ruling only if it 'was so wide off the mark that a manifest denial

of justice resulted.'" Ibid. The same standard of review applies to a trial court's

"determining both the relevance of the evidence to be presented [under Rule


                                                                             A-4858-16T2
                                         9
401] and whether its probative value is substantially outweighed by its

prejudicial nature" under Rule 403. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480,

492 (1999); N.J.R.E. 401; N.J.R.E. 403; see also State v. Lykes, 192 N.J. 519,

534 (2007).

      "Our analysis of the trial court's evidentiary ruling begins with the

question of relevancy, 'the hallmark of admissibility of evidence.'" Griffin, 225

N.J. at 413 (2016) (quoting State v. Darby, 174 N.J. 509, 519 (2002)). Relevant

evidence is defined as evidence that has "a tendency in reason to prove or

disprove any fact of consequence to the determination of the action." Ibid.

(quoting N.J.R.E. 401). "Courts consider evidence to be probative when it has

a tendency 'to establish the proposition that it is offered to prove.'" State v. Burr,

195 N.J. 119, 127 (2008) (quoting State v. Allison, 208 N.J. Super. 9, 17 (App.

Div. 1985)). The evidence must be probative of a fact that is "really in issue in

the case," as determined by reference to the applicable substantive law. State v.

Buckley, 216 N.J. 249, 261 (2013) (quoting State v. Hutchins, 241 N.J. Super.

353, 359 (App. Div. 1990)).

      Under Rule 401, "[e]vidence need not be dispositive or even strongly

probative in order to clear the relevancy bar." Ibid. Moreover, "[t]he proponent

need not demonstrate that the evidence can, in and of itself, establish or disprove


                                                                              A-4858-16T2
                                        10
a fact of consequence in order to meet the benchmark of [Rule] 401." State v.

Cole, 229 N.J. 430, 448 (2017). "Once a logical relevancy can be found to

bridge the evidence offered and a consequential issue in the case, the evidence

is admissible, unless exclusion is warranted under a specific evidence rule."

Burr, 195 N.J. at 127; see N.J.R.E. 402.

      Under Rule 403, a trial court may exclude relevant evidence "if its

probative value is substantially outweighed by the risk of (a) undue prejudice,

confusion of issues, or misleading the jury or (b) undue delay, waste of time, or

needless presentation of cumulative evidence." In general, "[e]vidence claimed

to be unduly prejudicial [can be] excluded only when its 'probative value is so

significantly outweighed by [its] inherently inflammatory potential as to have a

probable capacity to divert the minds of the jurors from a reasonable and fair

evaluation' of the issues in the case." Griffin, 225 N.J. at 421 (quoting State v.

Koskovich, 168 N.J. 448, 486 (2001) (second alteration in original)). Under

Rule 403, excludable evidence includes evidence that pertains to subordinate

issues. See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt.

6 on N.J.R.E. 403 (2018) (addressing excludable evidence in a criminal trial).

"[W]hen a party challenges the admission of evidence under [Rule] 403, the

question is not whether the challenged testimony will be prejudicial to the


                                                                          A-4858-16T2
                                       11
objecting party, 'but whether it will be unfairly so.'" Griffin, 225 N.J. at 421

(quoting Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 317 (1995)). If the

challenged evidence does not meet that standard, "evidence that has

overwhelming probative worth may [still] be admitted even if highly

prejudicial."   Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001) (quoting

Green, 160 N.J. at 496).

      "The mere possibility that evidence could be prejudicial does not justify

its exclusion." State v. Swint, 328 N.J. Super. 236, 253 (App. Div. 2000). "It

is not enough for the opposing party to show that the evidence could be

prejudicial; '[d]amaging evidence usually is very prejudicial but the question . . .

is whether the risk of undue prejudice [is] too high.'" Cole, 229 N.J. at 448

(alterations in original) (emphasis omitted) (quoting State v. Morton, 155 N.J.

383, 453-54 (1998)). While evidence may be damaging, "the danger of undue

prejudice" is not enough to "outweigh probative value so as to divert jurors 'from

a reasonable and fair evaluation of the basic [ultimate] issue . . . .'" State v.

Moore, 122 N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231,

249-50 (App. Div. 1988)).

      Applying these guiding principles, we conclude that the trial court did not

abuse its discretion by excluding evidence of plaintiff's status as administrator


                                                                            A-4858-16T2
                                        12
of her husband's estate after finding it was not relevant and even if it was, its

prejudicial effect substantially outweighed its limited probative value.

Plaintiff's status was not probative of "the circumstances of the underlying

[claim that was] the focus," of the trial. Bardis v. First Trenton Ins. Co., 199

N.J. 265, 277 (2009) (addressing "whether [an] insurer should be identified in

[a] UIM trial by its own name"). We therefore agree with the reasons stated by

the trial court in response to the motion in limine and we conclude that the trial

court properly performed its gatekeeper function in its determination to exclude

the irrelevant information.

      Plaintiff's arguments to the contrary are without merit. Her status as an

administrator or the fact that her husband was killed at the subject premises were

not relevant even to any subordinate issue in the case, especially where there

was no dispute that she suffered a loss or as to the value of the loss. Moreover,

her arguments that the court violated her constitutional rights when it properly

exercised its discretion by not allowing the jury to know her status or the facts

about her loss are legally unsupported and without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). The jury knew she was a

plaintiff who had suffered a loss who alleged that it was caused by defendants'

negligence. Nothing more was required and the admission of the excluded


                                                                          A-4858-16T2
                                       13
information clearly had the propensity to "inflame" and confuse the jurors about

the issue they had to decide.

                                       III.

      We turn to plaintiff's next contention regarding defense counsel's remarks

during his summation, which plaintiff argues amounted to counsel telling the

jury that "defendants would have to 'pay' any judgment out of their own

pocket[s]." According to plaintiff, in Tomeo v. N. Valley Swim Club, 201 N.J.

Super. 416, 420 (App. Div. 1985), we found such comments impermissible

where "[t]he fact [was] that defendant [was] fully insured . . . ."            The

circumstances here, however, are distinguishable from the circumstances in

Tomeo.

      At trial in this case, defense counsel described the history of the Agency

as testified to by Massey and then stated on more than one occasion that it would

be unfair to ask that defendants "pay for the sins of someone else" and "pay for

[Kacy's] sins, [and] his lies." Plaintiff, however, never objected to counsel's

comments.

      Because plaintiff did not object to the challenged statements at trial, we

review for plain error the trial court's decision allowing the statement to be made

to the jury. Under that standard, "[a]ny error or omission shall be disregarded


                                                                           A-4858-16T2
                                       14
by the appellate court unless it is of such a nature as to have been clearly capable

of producing an unjust result." Willner v. Vertical Reality, Inc., 235 N.J. 65, 79

(2018) (quoting R. 2:10-2). "Relief under the plain error rule, . . . at least in

civil cases, is discretionary and should be sparingly employed." Baker v. Nat'l

State Bank, 161 N.J. 220, 226 (1999) (citation omitted). In our review of a

challenge to counsel's summations, we presume that opposing counsel will

object to summation comments which unfairly characterize the evidence, and

consider the failure to do so "as 'speaking volumes about the accuracy of what

was said.'"    Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008)

(quoting Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001)). Applying

that standard, we find no error, let alone plain error, in the court not sua sponte

striking counsel's comments or issuing a curative instruction.

      In Hayes v. Delamotte, 231 N.J. 373, 387-88 (2018), the Supreme Court

reviewed the well-settled parameters of permissible comments that can be made

during a summation.      Quoting extensively from our opinion in Colucci v.

Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), the Court stated the

following:

              [C]ounsel is allowed broad latitude in summation. That
              latitude is not without its limits, and counsel's
              comments must be confined to the facts shown or
              reasonably suggested by the evidence introduced

                                                                            A-4858-16T2
                                        15
             during the course of the trial. Further, counsel should
             not misstate the evidence nor distort the factual picture.
             Within those limits, however, [c]ounsel may argue
             from the evidence any conclusion which a jury is free
             to reach. Indeed, counsel may draw conclusions even
             if the inferences that the jury is asked to make are
             improbable. . . .

             [Hayes, 231 N.J. at 387-88 (alterations in original)
             (citations omitted).]

      Here, we conclude that plaintiff's arguments about counsel's comments are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). Suffice it to say, counsel's statements related to defendants being

unfairly held responsible for Palladium's inadequate insurance coverage due to

Rankine's failure to properly disclose the true nature of Palladium's business

operations.1 Unlike in Tomeo, counsel's comments here were not directed to

defendants being financially ruined by having to pay "out of their pocket" for a

judgment that would in fact be paid by their professional liability insurance

carrier. See Tomeo, 201 N.J. Super. at 420. We find no reversible error in the

trial court's actions.




1
  The Cambridge Dictionary defines the term "pay the price" as "to experience
the bad result of something you have done." Cambridge Dictionary,
https://dictionary.cambridge.org/us/dictionary/english/pay-the-price     (last
viewed Jan. 3, 2019).
                                                                          A-4858-16T2
                                        16
                                        IV.

      Next, we address plaintiff's challenges to the trial court's jury instructions.

At trial, the court charged the jury as to the law applicable to plaintiff's

negligence claim by modifying the model jury charge for an architect or

engineer. See Model Jury Charges (Civil), 5.52, "Professional Liability of an

Architect/Engineer" (approved Nov. 1995). Specifically, the jury was given the

following charge relating to Massey's duty:

            An insurance broker represents that he/she has and will
            use the degree of knowledge, skill, judgment and taste
            ordinarily possessed and used by the average insurance
            broker in the profession. . . . [A]n insurance broker has
            the duty to have and to use that degree of judgment,
            knowledge, skill and taste which insurance brokers of
            ordinary ability possess and exercise, in the same or
            similar communities, at the time the insurance broker
            performs his/her services. This is the standard by
            which to judge . . . Massey in this case.

      The trial court rejected plaintiff's request at the charge hearing that the

jury be instructed with language derived from the Supreme Court's holding in

Aden v. Fortsh, 169 N.J. 64 (2001). Specifically, plaintiff requested that the

jury be charged with the following:

            Insurance brokers such as [defendants] hold themselves
            out as having more knowledge than members of the
            public with regard to insurance coverage and insurance
            policies. A broker is not just an order taker responsible
            only for completing forms and accepting commissions.

                                                                             A-4858-16T2
                                        17
               She is a fiduciary who must give appropriate advice as
               to coverage needed for an insured's business.

Plaintiff contends that this exact language "should have been instructed [to the

jury]" because it "pertain[ed] to the duty owed by insurance brokers" and the

court's charge without the language was insufficient.

      Plaintiff also argues that the court "failed to give the jury specific

instructions tailored to the facts of the case" and as a result, the court gave "the

jury a charge which was not meaningful to them because it did not incorporate "

those facts.     Specifically, plaintiff asserts that the jury did not receive

information about: 1) Massey's "admission that she failed to inform [Rankine]

that there was an assault and battery exclusion in [Palladium]'s policy;" 2) the

fact that "Rankine gave [Massey] a copy of the lease" setting forth the use of the

rental space; 3) that Massey admitted to "complet[ing] the insurance application

for [Palladium] which stated that 'all alcohol [would be] served within legally

allowable time frames;'" and 4) Massey's admission that "she insured [Rankine]

for Reggae concerts he had run in 2006, 2009[, and] 2010 so she knew that

[Rankine] was in this line of business." According to plaintiff, the "court's

failure to explain to the jury" the law within the context of the case resulted in

a jury instruction that "may have misled the jury." We disagree.



                                                                            A-4858-16T2
                                        18
      When a party raises an objection at trial to a jury charge, we review their

challenge to the jury charge for harmless error. Estate of Kotsovska, ex rel.

Kotsovska v. Liebman, 221 N.J. 568, 592 (2015). That is, "the 'reviewing court

should reverse on the basis of [a] challenged error unless the error is harmless.'"

Ibid. (quoting Toto v. Ensuar, 196 N.J. 134, 144 (2008)). An error is harmful

when it is "clearly capable of producing an unjust result." Ibid. (quoting R.

2:10–2). In reviewing such challenges, "a court must examine the charge as a

whole, rather than focus on individual errors in isolation." Ibid. (quoting Toto,

196 N.J. at 141).

      While proper jury charges are essential to a fair trial, Reynolds v.

Gonzalez, 172 N.J. 266, 288 (2002), "[e]rroneous instructions constitute

reversible error 'only if the jury could have come to a different result had it been

correctly instructed.'" Cockerline v. Menendez, 411 N.J. Super. 596, 617 (App.

Div. 2010) (quoting Victor v. State, 401 N.J. Super. 596, 617 (App. Div. 2008)).

Generally, we "will not disturb a jury's verdict based on a trial court's

instructional error 'where the charge, considered as a whole, adequately conveys

the law and is unlikely to confuse or mislead the jury, even though part of the

charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J.

327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).


                                                                            A-4858-16T2
                                        19
        When charging the jury, a court need "set forth in clearly understandable

language the law that applies to the issues in the case." Little v. Kia Motor Am.,

Inc., 455 N.J. Super. 411, 436-37 (App. Div. 2018) (quoting Toto, 196 N.J. at

144).    A jury charge is the "road map that explains the applicable legal

principles, outlines the jury's function, and spells out 'how the jury should apply

the legal principles charged to the facts of the case.'" Id. at 437 (quoting Toto,

196 N.J. at 144). To create such a roadmap, the court should tailor the jury

charge to the facts of the case. Estate of Kotsovska, 221 N.J. at 591-92.

        "Generally speaking, the language contained in any model charge results

from the considered discussion amongst experienced jurists and practitioners."

Flood v. Aluri-Vallabhaneni, 431 N.J. Super. 365, 383-84 (App. Div. 2013).

Thus, there is a "presumption of propriety that attaches to a trial court's reliance

on the model jury charge . . . ." Estate of Kotsovska, 221 N.J. at 596. If a trial

court relies upon a model jury charge, the court must adjust its contents, as

necessary, to conform to the particular facts of a given case. Torres v. Pabon,

225 N.J. 167, 188 (2016).

        Applying these guiding principles, we first conclude that plaintiff's

reliance upon Aden is inapposite and there is no merit to plaintiff's contention

that the trial court erred by not including the language she suggested from that


                                                                            A-4858-16T2
                                        20
case. In Aden, the Court rejected a broker's attempt to assert an insured's "failure

to read the insurance policy" "as comparative negligence in an action against the

broker for negligent failure to procure insurance."        Aden, 169 N.J. at 82.

Confronting the issue of whether such an instruction was warranted, the Court

held that "professionals may not diminish their liability under the Comparative

Negligence Act when the alleged negligence of the client relates to the task for

which the professional was hired." Id. at 78.

      In deciding that case, the Court did not find any error in the trial court's

charge to the jury, which resembled the charge given in the case before us and

did not include the language suggested by plaintiff. See id. at 73. The trial court

charged the jury in Aden that the law

            imposes on the insurance broker the duty or obligation
            to have and to use that degree of skill and knowledge
            which insurance brokers of ordinary ability and skill
            possess and exercise in the representation of a client,
            such as the plaintiff . . . in this case. This is the
            standard by which to judge the defendant . . . in his
            placement and advice as to the insurance on this
            dwelling, condominium dwelling unit.

            [Aden, 169 N.J. at 73.]

Both the charge in Aden and in the present appeal explain an insurance broker's

duty of care to his or her clients and provide the jury with clear guidelines.



                                                                            A-4858-16T2
                                        21
      We find plaintiff's remaining contention that the trial court should have

essentially argued in its charge facts plaintiff claimed were established by the

evidence to be without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E). Suffice it to say, the trial court's use of the

modified jury charge language for professional negligence satisfied its

obligation to properly instruct the jury in this case. We discern no error in the

court's charge and even if there was, we conclude it was harmless.

                                        V.

      Finally, we consider plaintiff's contention that the jury's verdict was

against the weight of the evidence. In support of her contention, plaintiff again

relies upon facts she argues were established at trial that supported her case. For

example, she cites to Massey's statement that she did not tell Rankine there was

an exclusion for assault and battery in Palladium's policy and that she was aware

of his experience in concert productions.

      At trial, Massey testified that Rankine contacted her to obtain insurance

for a banquet hall that he would be opening to use for weddings and birthday

parties. According to Massey, Rankine sought general liability insurance and an

umbrella policy. Based on her experience, assault and battery coverage is

necessary only if alcohol will be served. According to Massey, Rankine said


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the hall would be open from approximately 12:00 noon to 8:00 pm and would

include a daytime café, and he would not be serving alcohol at the location.

Ultimately, Massey did not obtain an umbrella policy for Rankine because

Rankine did not pay for it. She also explained that she did not inform Rankine

that the liability policy she obtained for Palladium excluded coverage for assault

and battery because he stated that no alcohol would be served, and if he had

informed her that alcohol would be served, she would have secured liquor

liability insurance as well as coverage for assault and battery.

      Rankine testified that he informed Massey that he would be using the

facility for banquets, wedding receptions, and other events, and that he d id not

have a liquor license for the location, although his business partner had been in

the process of obtaining a liquor license. When asked if he told Massey that

there would be no alcohol served on the premises, Rankine indicated that he

mentioned the possibility that those who rented the venue could obtain a one-

day alcohol permit at city hall. Rankine also testified that he was unaware that

the insurance policy had an assault and battery exclusion.

      After the jury returned its verdict, the trial court considered plaintiff's

challenge to the weight of the evidence when deciding plaintiff's motion for a

new trial. It concluded that based on the jury's credibility determinations, it was


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free to accept defendants' version of events and reject plaintiff's factual

contentions as testified to by Rankine if it found his testimony at trial was not

credible. We agree.

      We review a party's claim that the weight of the evidence was insufficient

to support a verdict, only where, as here, the issue was first addressed by the

trial court in response to a motion for a new trial. R. 2:10-1. "[O]n appeal from

decisions on motions for a new trial," we apply "the same [standard] as that

governing the trial judge['s determination]—whether there was a miscarriage of

justice under the law." Hayes, 231 N.J. at 386 (quoting Risko v. Thompson

Muller Auto. Grp., Inc., 206 N.J. 506, 522 (2011)). "[A] 'miscarriage of justice'

can arise when there is a 'manifest lack of inherently credible evidence to support

the finding,' when there has been an 'obvious overlooking or under-valuation of

crucial evidence,' or when the case culminates in 'a clearly unjust result.'" Ibid.

(quoting Risko, 206 N.J. at 521-22).

      Applying this standard, we discern no reason to disturb the jury's

determination in this case. As the trial court found, there was conflicting

evidence of what transpired between defendants and Rankine relative to the

insurance at issue. The jury had sufficient evidence to consider and, after




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making credibility determinations, it was free to accept one version of the events

over the other. There was no miscarriage of justice.

      Affirmed.




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