                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2938-17T3
                                                                    A-3099-17T3

DANIEL M. YABLONSKY,

          Plaintiff-Appellant,

v.

ENCOMPASS INSURANCE
COMPANY OF NEW JERSEY,
ANGELO LOBOSCO and
LOBOSCO INSURANCE GROUP,
LLC,

     Defendant-Respondents.
_______________________________

DANIEL M. YABLONSKY,

          Plaintiff,

v.

ENCOMPASS INSURANCE
COMPANY OF NEW JERSEY,

          Defendant-Respondent,

and
ANGELO LOBOSCO and
LOBOSCO INSURANCE GROUP,
LLC,

     Defendants-Appellants.
_______________________________

         Argued May 8, 2019 – Decided December 24, 2019

         Before Judges Alvarez, Nugent and Mawla.

         On appeal from the Superior Court of New Jersey, Law
         Division, Morris County, Docket No. L-1974-14.

         Francis X. Garrity and Thomas D. Flinn argued the
         cause for appellant Daniel M. Yablonsky in A-2938-17
         (Garrity Graham Murphy Garofalo & Flinn, attorneys;
         Francis X. Garrity and Thomas D. Flinn, of counsel;
         Jane G. Glass, on the briefs).

         Syed S. Ahmad (Hunton Andrews Kurth, LLP) of the
         District of Columbia and Virginia bars, admitted pro
         hac vice, argued the cause for appellants Angelo
         Lobosco and Lobosco Insurance Group in A-3099-17
         and respondents Angelo Lobosco and Lobosco
         Insurance Company in A-2938-17 (Sullivan & Klein,
         LLP, and Syed S. Ahmad, attorneys; Frederick Miles
         Klein, Syed S. Ahmad, and Geoffrey B. Fehling
         (Hunton Andrews Kurth, LLP) of the District of
         Columbia and Pennsylvania bars, admitted pro hac
         vice, on the briefs).

         Richard J. Mirra argued the cause for respondent
         Encompass Insurance Company of New Jersey
         (Hoagland Longo Moran Dunst & Doukas, attorneys;
         Richard J. Mirra, of counsel and on the briefs).

    The opinion of the court was delivered by

                                                                A-2938-17T3
                                    2
NUGENT, J.A.D.

      These appeals, which we consolidate for this opinion, center around

plaintiff Daniel M. Yablonsky's claim that his parents' automobile insurance

policy should have included $1,000,000 in excess underinsured motorist (UIM)

coverage on the date Daniel was injured in an accident involving a motor

vehicle.   In No. A-2938-17, Daniel appeals both the summary judgment

dismissal of his claim that the trial court should have construed his parents'

insurance policy to provide $1,000,000 excess UIM coverage and the

involuntary dismissal at trial of his professional negligence claim against his

parents' insurance producer for failing to inform them excess UIM coverage was

available. In No. A-3099-17, Daniel's parents' insurance producer appeals the

summary judgment dismissal of its contractual indemnification claim against

the insurance company that issued the automobile insurance policy to Daniel's

parents.

      We must decide three issues on these two appeals. First, we must decide

whether Daniel's parents' insurance policy should be construed to provide excess

UIM coverage due to an alleged ambiguity in its coverage summary, even

though Daniel's father, who purchased the policy, knew the policy did not

include excess UIM coverage. Given the father's undisputed knowledge the


                                                                        A-2938-17T3
                                       3
policy did not provide excess UIM coverage, we decline to construe the policy

to provide it.

      Next, we must decide whether the trial court erred by dismissing at the

close of Daniel's proofs at trial his professional negligence claim against his

father's insurance producer for failing to inform his parents of the availability of

excess UIM coverage when such coverage became available. We conclude

Daniel established a prima facie case of professional negligence that should have

been submitted to the jury.

      Last, we must decide whether the trial court erred by dismissing on

summary judgment the insurance producer's contractual indemnification claim

against the company that issued the insurance policy to Daniel's parents. We

conclude the plain and unambiguous terms of the contractual indemnification

clause preclude indemnification and the trial court did not err in so finding.

                     I. Background and Procedural History.

      Daniel possessed a valid driver's license, but was riding a bicycle on May

13, 2012, when he was struck by a Jeep insured under a policy with $15,000

liability limits. For purposes of this appeal only, there is no serious dispute that

the compensable value of Daniel's injuries equals or exceeds $1,250,000. Daniel

collected the tortfeasor's $15,000 liability limits. He also collected the balance


                                                                            A-2938-17T3
                                         4
of the $250,000 UIM limits he was entitled to collect under his parents'

insurance policy, which covered Daniel and the vehicle he owned. His parents

had purchased the policy, an Encompass Insurance Co. of NJ (Encompass) USP

Elite-Package (Encompass Policy), through defendants Angelo Lobosco (Mr.

Lobosco) and Lobosco Insurance Group, LLC (Lobosco Group).                 The

Encompass Policy included motor vehicle, homeowners, fire, and personal

umbrella coverage, but no UIM or uninsured (UM) umbrella coverage.

      In May 2014, Daniel filed a three-count complaint against the Lobosco

defendants and alleged causes of action for negligence, breach of contract, and

breach of fiduciary duty. Daniel based his claims on these defendants' failure

to inform his parents that excess UIM and UM coverage had become available.

The following month, Daniel filed an amended four-count complaint.

      The amended complaint's first count, which stated a cause of action

against Encompass for breach of contract, alleged the Encompass Policy in

effect when Daniel was struck by the Jeep included a coverage summary that

suggested the policy included $1,000,000 of Personal Umbrella UIM coverage.

Daniel sought a declaration that he was afforded $1,250,000 under the

Encompass Policy. The remaining three counts, against the Lobosco defendants




                                                                       A-2938-17T3
                                      5
but not Encompass, repeated the causes of action pled against the Lobosco

defendants in the original complaint.

      After Daniel filed his amended complaint, the Lobosco defendants filed

an answer with affirmative defenses. Thereafter, they amended their answer and

included, among other things, a cross-claim for contractual indemnification

against Encompass.

      Following discovery and some motion practice not relevant to this appeal,

all the parties moved for summary judgment. The trial court denied Daniel's

motion, granted Encompass's motion, and granted the Lobosco defendants'

motion in part. The court dismissed Daniel's claims against the Lobosco

defendants for breach of contract and breach of fiduciary duty but denied the

Lobosco defendants' motion to dismiss the professional negligence claim. The

court also denied the Lobosco defendants summary judgment on their

contractual indemnification claim.

      During the ensuing trial, following the close of Daniel's case, the Lobosco

defendants moved for, and the court granted, an involuntary dismissal of

Daniel's remaining claim. The court denied Daniel's motion for reconsideration.

Daniel filed this appeal.




                                                                         A-2938-17T3
                                        6
      Following the trial, the Lobosco defendants renewed their summary

judgment motion seeking contractual indemnification from Encompass.

Encompass cross-moved for summary judgment. The trial court denied the

Lobosco defendants' motion and granted Encompass's motion. The Lobosco

defendants appealed from the ensuing order.

                        II. The Motion and Trial Records.

      For purposes of the summary judgment motions and the motion for

involuntary dismissal at trial, the parties did not seriously dispute that the Jeep's

driver caused the accident, Daniel was entitled to UIM coverage under his

parents' Encompass Policy, and the compensable value of Daniel's injuries

exceeded $250,000. Daniel and Encompass sharply disputed the clarity of the

Encompass Policy, the Lobosco defendants denied any wrongful conduct, and

Encompass disputed it was required to indemnify the Lobosco defendants under

the terms of the indemnification provision of the Lobosco-Encompass agency

agreement.

                           A. The Encompass Policy.

      The Encompass Policy, entitled "USP Elite-Package," renewed on

December 19, 2011, expired on December 19, 2012, and was in effect when

Daniel's accident occurred in May 2012. The policy included a nine-page


                                                                             A-2938-17T3
                                         7
"Renewal Policy Coverage Summary" (Coverage Summary) and 170 pages of

terms and conditions. The Coverage Summary section entitled "Motor Vehicle

Protection" identified four vehicles and provided an overview of the coverage

for each, including the coverage limits and premiums. The parties do not dispute

that each vehicle was insured for UM and UIM coverage with split limits of

$250,000 per person, $500,000 per accident.

      The Coverage Summary included a section entitled "Personal Umbrella

Coverage," which stated:

            PERSONAL UMBRELLA COVERAGE (Coverage
            applies only if a premium or limit is shown)

            COVERAGES
            PERSONAL UMBRELLA COVERAGE: applies to all
            "covered exposures" and "additional covered
            exposures"

      The Personal Umbrella Coverage Summary section showed coverage of

$1,000,000 and specified the "Minimum Retained Limit" the insured was

required to maintain in underlying insurance:      a combined single limit of

$500,000 each accident or a split basis limit of $250,000 bodily injury each

person, $500,000 bodily injury each accident, and $100,000 property damage

each accident.    The Personal Umbrella Coverage Summary section also




                                                                        A-2938-17T3
                                       8
specified the premium for the coverage. The terms "covered exposures" and

"additional covered exposures" were undefined.

      The Coverage Summary ended with a statement that the policy was subject

to "the following forms and endorsements" and was followed by thirty -five

forms and endorsements. The "Personal Umbrella Coverage Endorsement-New

Jersey" expressly excluded UM and UIM benefits.

      Representatives of Encompass and its parent company conceded during

depositions that someone reading the Coverage Summary would also have to

read the policy endorsements to understand that umbrella coverage was provided

for liability, but not UM or UIM claims. In 2014, Encompass changed the

Coverage Summary's Personal Umbrella Coverage section to read:

            THIS PERSONAL UMBRELLA SEGMENT DOES
            NOT PROVIDE COVERAGE FOR EXCESS
            UNINSURED OR UNDERINSURED MOTORIST
            COVERAGE EXCEPT FOR VEHICLES WHERE A
            LIMIT IS SHOWN FOR EXCESS UNINSURED OR
            UNDERINSURED MOTORISTS COVERAGE.

According to the representative of Encompass's parent company, the language

was changed in 2014 to "reinforce" that there was no UM or UIM umbrella

coverage.

      When deposed, Daniel's father could not recall the year he first purchased

the umbrella policy through the Lobosco Group but did remember that Mr.

                                                                        A-2938-17T3
                                       9
Lobosco told him the policy did not provide UM or UIM coverage. Mr. Lobosco

testified in his deposition that he did not remember such a conversation. He did

remember that he procured an umbrella policy for Daniel's father in 1997.

                 B. Summary Judgment as to Daniel's Claims.

      The trial court dismissed on summary judgment Daniel's claims against

Encompass. The court also dismissed on summary judgment Daniel's breach of

contract and breach of fiduciary duty claims, but not his professional negligence

claim, against the Lobosco defendants. As to Encompass, the trial court found

no ambiguity in the Encompass Policy and no inconsistency between the

Encompass Policy's Coverage Summary and its insuring provisions. The court

also found the Coverage Summary notified the insureds the personal umbrella

coverage was subject to the restrictions, conditions, and exclusions found in the

body of the policy and its endorsements. According to the trial court, nothing

in the Coverage Summary would give the insured a reasonable expectation of

excess UIM coverage. Moreover, Daniel's father, who purchased the policy

through Mr. Lobosco, was aware from the policy's inception the policy

contained no UIM coverage and thus had no reasonable expectation to the

contrary.




                                                                         A-2938-17T3
                                      10
      Daniel does not challenge on appeal the grant of partial summary

judgment to the Lobosco defendants.

                   C. Trial and Dismissal of Daniel's Claims
                       Against the Lobosco Defendants.

      Daniel and the Lobosco defendants stipulated at trial that: Daniel

sustained injuries in an accident caused by a negligent driver whose liability

limits were $15,000, which the driver's insurer paid; Daniel was insured under

his parents' Encompass Policy and Encompass paid the $250,000 UIM limits

less the credit for the negligent driver's $15,000 liability limit; and Daniel's

damages were sufficiently severe to support a recovery of $1,250,000. Daniel

testified about the accident and confirmed he had received the available liability

and UIM insurance coverage.

      Daniel's father testified he had obtained insurance through the Lobosco

Group since 1986 or 1987. After Daniel's father bought a home, Mr. Lobosco

recommended he purchase an Encompass umbrella policy. Daniel's father said

he appreciated the additional coverage and was pleased that it would protect

him, among other things, against an uninsured or underinsured driver. Mr.

Lobosco corrected this assumption and explained the umbrella policy did not

provide excess UM or UIM coverage. Daniel's father was upset and expressed

his disbelief that an umbrella policy would not fully protect his family, but he

                                                                          A-2938-17T3
                                       11
purchased the Encompass Policy and renewed it yearly through the date of his

son's accident.

      According to Daniel's father, after he purchased the policy from Mr.

Lobosco, Mr. Lobosco never discussed the availability of excess UM or UIM

coverage.   Having expressed his desire for such coverage, Daniel's father

expected that Mr. Lobosco would advise him of its availability as soon as it

became available. Had Mr. Lobosco done so, Daniel's father "absolutely" would

have bought it.

      Daniel also presented the testimony of a licensed insurance broker, Frank

Seigel, who had worked in the industry for forty-five years and currently did

expert consulting, continuing education, and insurance consulting. The court

found Seigel qualified as an expert "in the field of property and casualty

insurance, and the responsibility of insurance producers, agents and brokers."

Seigel testified that though the Encompass Policy did not provide excess UM or

UIM coverage, such coverage was readily available in December 2011, before

Daniel's accident, when the Yablonskys' Encompass Policy came up for renewal.

Such excess UIM coverage, if purchased when the Encompass Policy renewed

in December 2011, would have been available to Daniel following his accident.

Specifically, when asked, "was there available in 2011 or in 2012 when young


                                                                       A-2938-17T3
                                     12
Dan had his accident, was there available the type of coverage that [Daniel's

father] had asked [Mr. Lobosco] about when he first bought his umbrella,"

Seigel said there was, and it was easily accessible.

      Seigel explained that he belonged to an organization known as the "Big

I," the Independent Insurance Agents and Brokers Association, a "countrywide

organization." The Big I provided its member insurance agents and brokers

continuing education, member services, and products the member agents and

brokers could sell to the public. The Lobosco Agency was a member of the Big

I.

      According to Seigel, an umbrella policy with excess UM and UIM

coverage up to $1,000,000 was available in 2011—when the Yablonskys

renewed their Encompass Policy before Daniel's accident—from a company

named RLI.     The umbrella policy was a product available to independent

insurance agents through "Big I," which administered the program.        Seigel

confirmed with the Big I the umbrella policy was available in 2011. In addition,

Seigel testified the Lobosco defendants' expert had noted in his report that the

RLI Umbrella had its filing approved in New Jersey in the spring of 2011.

      Seigel testified that because the Lobosco defendants had been members of

the Big I for years, Mr. Lobosco would have had access to Big I advertising and


                                                                        A-2938-17T3
                                       13
emails regarding the availability of excess UM and UIM coverage.              The

coverage was easily accessible through the Big I. A member needed only to

"call[] up the Big I, get[] an on-line access code, go[] on line to [a company

called] RLI, and get[] all the information that you needed from them."

      Seigel explained that an insurance agent could send an application directly

to RLI, and if "all the boxes are checked off the way they should be, it just goes

- - the policy is issued just like that." If something about an application is

questionable, an agent would call the administrator—not the insurance

company—who would "get the answer" as to whether the policy would be

issued.

      Based on the materials he received from the Big I and reviewed, Seigel

explained certain features of the RLI UIM umbrella policy. One million dollars

of UIM umbrella coverage was available.         The policy was a "stand-alone

product," that is, it could be purchased as a product separate from an automobile

policy. Seigel reviewed 2014 and 2015 underwriting guidelines. Comparing

the 2014 and 2015 documents, he confirmed the underwriting guidelines had

remained consistent. He explained that in a state like New Jersey coverage is

unlikely to become broader over the years; rather, if anything, coverage narrows.

Considering the "liberal" RLI underwriting guidelines, the Yablonsky "risk,"


                                                                          A-2938-17T3
                                       14
and the absence of disqualifying factors in the Yablonsky family, Seigel

concluded the Yablonsky account was a "standard" account that would have

qualified for coverage under the RLI program.

      Seigel at times gave seemingly conflicting testimony about the terms of

the RLI UIM coverage. Asked about the difference between an excess policy

and an umbrella policy, Seigel explained that an excess policy is typically a

"following form" policy, that is, "it's tailored to meet the same terms and

conditions as the underlying policy, the policy for which it stands over, and it

drops down for the limits, but it doesn't change terms and conditions." In other

words, the excess policy will have the same terms and conditions as the

underlying policy. In contrast, "[a]n umbrella policy[] not only provides the

excess limits, but it also provides broader terms and conditions than the primary

policies."   The confusion in Seigel's testimony was caused by his and the

attorneys' use of the terms "excess" and "umbrella" without regard to Seigel's

explanation, and at times as if the terms were interchangeable.

      When asked if he knew if "RLI's umbrella policies at any point in time

provided umbrella UM/UIM coverage[,]" Seigel responded, "it has its own

policy language." When asked what he meant by that, Seigel explained that

"[i]nstead of saying in its policy form that if you have uninsured/underinsured


                                                                         A-2938-17T3
                                      15
motorists, our policy provides the same terms and conditions as what you have

in the primary[,] [i]t attaches a form that says excess uninsured/underinsured

motorists, and has its own policy language attached to it." However, when

asked, "[a]nd in your report you did not provide an opinion about what that

umbrella policy language would cover or would not cover, did you[,]" Seigel

responded, "[w]ell, I actually did by saying that the coverage was available. My

opinion   was   that   the   coverage      was   available.    It   was    excess

uninsured/underinsured motorist coverage in the RLI policy."

      As to the duty the Lobosco defendants owed Daniel's father, Seigel

testified that in view of the duration of their relationship and Daniel's father

following Mr. Lobosco's advice without question—for example, applications for

insurance were signed and processed by the Lobosco Group without Daniel's

father seeing them—Mr. Lobosco owed Daniel's father a higher standard of care.

The standard of care expected of an insurance broker required that Mr. Lobosco

be aware of products in the marketplace available to meet his clients' needs. In

Seigel's opinion, Mr. Lobosco's failure to offer "the product," namely, excess

UM and UIM insurance, to Daniel's father in 2011, violated the standard of care.

      The trial court found Daniel's proofs insufficient to survive the Lobosco

defendants' motion for an involuntary dismissal. The court determined the


                                                                          A-2938-17T3
                                      16
evidence presented a jury issue as to whether a special relationship existed

between Daniel's father and Mr. Lobosco that created a heightened duty of care.

The court also deemed Daniel's evidence sufficient to create a jury question as

to the availability of excess UIM coverage when the Encompass Policy renewed

in December 2011. The court granted the motion, however, because Daniel had

not produced evidence of the underwriting guidelines that existed in 2011.

Daniel had produced no evidence as to whether his family would have me t such

guidelines, what the terms of a 2011 excess UM/UIM RLI policy would have

been, and whether Daniel's claim would have been covered under such a policy.

      The trial court dismissed Daniel's claim against the Lobosco defendants

and denied his motion for reconsideration.

      D. Disposition of the Lobosco Defendants' Indemnification Claim.

      Following the trial, the Lobosco defendants renewed their summary

judgment motion seeking indemnification against Encompass. Under the terms

of the agency agreement between the Lobosco Group and Encompass,

Encompass    agreed   to   indemnify    the   Lobosco   Group   under    certain

circumstances. This is the relevant part of the indemnification provision:

            We will Indemnify and hold you harmless from and
            against all claims, losses, damages, liabilities,
            judgments or settlements, including reasonable costs,
            expenses and attorneys' fees . . . arising out of the

                                                                        A-2938-17T3
                                       17
            relationship of the parties under the terms of this
            Agreement . . . caused by our act, error or omission,
            except to the extent that you have caused, contributed
            to or compounded such act, error or omission.

      Finding the indemnification provision unambiguous, the trial court

granted Encompass's cross-motion for summary judgment and dismissed the

Lobosco defendants' indemnification claim. The court determined the Lobosco

defendants' claim for indemnification arose not out of the relationship between

them and Encompass but rather out of Mr. Lobosco's relationship with Daniel's

father and Mr. Lobosco's alleged negligence in failing to advise him of the

availability of additional UIM coverage.        The court determined that such

professional liability was not a liability that fell within the scope of t he agency

agreement's indemnification provision.

                                        III.

      We first consider Daniel's appeal of the summary judgment dismissal of

his claims against Encompass.

                                        A.

      Daniel asserts the Encompass Policy's Coverage Summary created a

reasonable expectation that excess UIM coverage was included in the umbrella

coverage and such an expectation was contradicted by the umbrella

endorsement, which excluded UM and UIM coverage.               Daniel argues that

                                                                            A-2938-17T3
                                        18
contrary to the trial court's conclusion, the insured's reasonable expectation of

UIM umbrella coverage, created by the ambiguity in the Coverage Summary,

could not be remedied by the plain exclusion of UIM umbrella coverage in the

umbrella endorsement.      Daniel emphasizes that Encompass's post-accident

amendment in 2014 to the Coverage Summary—clearly and expressly excluding

UM and UIM coverage—demonstrates the pre-2014 ambiguity. Daniel also

argues the court erred by considering his father's subjective knowledge, rather

than interpreting the policy objectively.

      Encompass argues the Coverage Summary contains no ambiguity. Rather,

Daniel overlooks the Encompass policy's plain language and the purpose of

Umbrella coverage, which is to provide excess liability insurance, not first-party

UM or UIM coverage. Encompass emphasizes that the umbrella endorsement

is plain and unambiguous, a proposition Daniel cannot reasonably dispute.

Encompass also emphasizes that the named insureds had no reasonable

expectation of umbrella UIM coverage, as Mr. Lobosco specifically advised

Daniel's father that the umbrella endorsement did not include UM and UIM

excess coverage. Encompass argues that the 2014 amendment to the Coverage

Summary is irrelevant and inadmissible.




                                                                          A-2938-17T3
                                       19
                                        B.

      Appellate courts "review[] an order granting summary judgment in

accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217

N.J. 22, 38 (2014) (citations omitted).      Our function is not "to weigh the

evidence and determine the truth of the matter but to determine whether there is

a genuine issue for trial." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986)); accord R. 4:46-2(c). A trial court's determination that a party is entitled

to summary judgment as a matter of law is not entitled to any "special

deference," and is subject to de novo review. Cypress Point Condo. Ass'n v.

Adria Towers, L.L.C., 226 N.J. 403, 415 (2016) (citation omitted).

      Basic legal principles guide courts construing language in insurance

policies. "The doctrine that courts do not lightly interfere with freedom of

contract must be applied cautiously and realistically with regard to complex

contracts of insurance, since such contracts are highly technical, extremely

difficult to understand, and not subject to bargaining over the terms." Sparks v.

St. Paul Ins. Co., 100 N.J. 325, 335 (1985). Insurance policies "are contracts of

adhesion, prepared unilaterally by the insurer, and have always been subject ed




                                                                            A-2938-17T3
                                        20
to careful judicial scrutiny to avoid injury to the public." Ibid. (citing Di Orio

v. N.J. Mfrs. Ins. Co., 79 N.J. 257, 269 (1979)).

      "The fundamental principle of insurance law is to fulfill the objectively

reasonable expectations of the parties." Werner Indus., Inc. v. First State Ins.

Co., 112 N.J. 30, 35 (1988). Generally, when interpreting an insurance policy,

we give its words their plain, ordinary meaning. Kimber Petroleum Corp. v.

Travelers Indem. Co., 298 N.J. Super. 286, 300 (App. Div. 1997). Courts should

not "engage in a strained construction to support the imposition of liability."

Progressive Cas. Ins. Co. v. Hurley, 166 N.J. 260, 273 (2001) (citation omitted).

      If a policy's language is clear, the policy should be enforced as written to

fulfill the reasonable expectations of the parties.    Passaic Valley Sewerage

Comm'rs v. St. Paul Fire & Marine Ins. Co., 206 N.J. 596, 608 (2011). Courts

must "'avoid writing a better insurance policy than the one purchased.'" Villa v.

Short, 195 N.J. 15, 23 (2008) (quoting President v. Jenkins, 180 N.J. 550, 562

(2004)).

      On the other hand, if a policy's terms are ambiguous "they are construed

against the insurer and in favor of the insured, in order to give effect to the

insured's reasonable expectations." Flomerfelt v. Cardiello, 202 N.J. 432, 441

(2010) (citing Doto v. Russo, 140 N.J. 544, 556 (1995)).


                                                                          A-2938-17T3
                                       21
      Here, the parties' dispute as to whether ambiguities exist in the Encompass

Policy's Coverage Summary concerning umbrella coverage appears to turn on

terms of art undefined in the policy. The Coverage Summary states umbrella

coverage "applies to all 'covered exposures' and 'additional covered exposures.'"

Encompass claims the language is clear because the purpose of umbrella

coverage is to provide excess liability insurance, not first party UM or UIM

coverage. Thus, according to Encompass, there is no ambiguity in the Coverage

Summary. Moreover, the umbrella endorsement plainly and clearly excludes

UM and UIM coverage.

      It is questionable whether an unsophisticated insured would understand

industry terminology undefined in an insuring agreement. Nevertheless, we

conclude the trial court's decision was correct. Daniel's mother and father were

the policyholders. They had no expectation of umbrella UIM coverage. Mr.

Lobosco had specifically informed Daniel's father the policy did not include

umbrella UIM coverage. Daniel's father never forgot that disclosure, nor did he

ever entertain any contrary belief. To the contrary, his knowledge that the policy

contained no umbrella UM or UIM coverage, and his expressed desire to obtain

such coverage if available, were critical elements of Daniel's claim against the

Lobosco defendants. Under such circumstances, we will not "engage in a


                                                                          A-2938-17T3
                                       22
strained construction to support the imposition of liability." Progressive Cas.

Ins. Co., 166 N.J. at 273.

      Daniel has cited no New Jersey case, or any case for that matter, in which

a court has declared that an insurance policy includes coverage the parties to the

insurance contract know does not exist. We decline to do so. Daniel's parents,

who purchased the Encompass Policy, had no belief that the policy provided

UIM umbrella coverage, let alone an objectively reasonable belief. They knew

the Encompass Policy provided no such coverage. We decline to write a better

insurance policy than the one Daniel's parents knew they purchased. See Villa,

195 N.J. at 23.

                                        IV.

      Next, Daniel argues that the trial court erred by failing to apply the correct

burden of proof when it granted the Lobosco defendants' motion for an

involuntary dismissal at the close of Daniel's proofs. Daniel asserts the burden

of proof did not require him to establish both the terms and conditions of the

insurance policy Lobosco should have procured and the underwriting guidelines

in effect for such policies. Daniel adds the trial court did not give him the benefit

of all reasonable inferences as required by the applicable standard of review.




                                                                             A-2938-17T3
                                        23
      The Lobosco defendants respond that Daniel invited the trial court to

require prima facie evidence of causation and is thus barred from taking a

different position on appeal. In addition, the Lobosco defendants argue the court

correctly followed well-settled causation principles in determining that Daniel

failed to establish a prima facie case of professional negligence, as Daniel

offered no admissible evidence of the terms of the 2011 coverage or the

underwriting guidelines that applied to it.

      Daniel replies that the doctrine of invited error is inadmissible and

reiterates that the trial court misapplied the burden of proof.

      The Supreme Court has explained the duty owed by an insurance broker

to a member of the public.

            When engaged by a member of the public to obtain
            insurance, the law holds [an insurance broker] to the
            exercise of good faith and reasonable skill, care and
            diligence in the execution of the commission. He is
            expected to possess reasonable knowledge of the types
            of policies, their different terms, and the coverage
            available in the area in which his principle seeks to be
            protected.

            [Rider v. Lynch, 42 N.J. 465, 476 (1964).]

      If the broker "neglects to procure the insurance, or if the policy is void or

materially deficient, or does not provide the coverage [the broker] undertook to

supply, because of his failure to exercise the requisite skill of diligence, he

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becomes liable to his principal for the loss sustained thereby." Sobotor v.

Prudential Prop. & Cas. Ins. Co., 200 N.J. Super. 333, 338 (App. Div. 1984). A

duty of an insurance broker is no different than the duty owed by an insurance

agent. "The difference between a broker and an agent lies in the duties and

responsibilities owed to the insurance carrier, not to the insured." Id. at 337 n.1.

Significantly,

            [i]t is not necessary for the client in order to establish a
            breach of duty to prove that he laid out for the broker
            the elements of a contract of insurance. It is sufficient
            to show that he authorized procurement of the insurance
            needed to cover the risks indicated and that the broker
            agreed to do so but failed or neglected to perform his
            duty. The terms of the contract to procure the
            insurance, the scope of the risk and subject matter to be
            covered, may be found by implication. The principal
            does not sue on the contract of insurance; he seeks
            recovery for the loss occasioned by the failure to
            procure such a contract or such a valid contract.

            [Lynch, 42 N.J. at 477.]

      The trial court determined Daniel's proofs were sufficient to show that

RLI coverage was available when the Encompass policy renewed in 2011, and

that the Lobosco defendants had a special relationship with Daniel's father,

which they breached. The court further determined, however, that Daniel had

failed to establish the terms of the policy and the underwriting criteria. We agree

with Daniel that the court erred in doing so.

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                                        25
      "A motion for involuntary dismissal only should be granted where no

rational juror could conclude that the plaintiff marshaled sufficient evidence to

satisfy each prima facie element of a cause of action." Dutton v. Rando, 458

N.J. Super. 213, 230 (App. Div. 2019) (quoting Godfrey v. Princeton

Theological Seminary, 196 N.J. 178, 197 (2008)). Thus, when deciding a Rule

4:37-2(b) motion for involuntary dismissal at the end of the plaintiff's case, a

court must decide "whether 'the evidence, together with the legitimate inferences

therefrom, could sustain a judgment in . . . favor' of the party opposing the

motion." Dolson v. Anastasia, 55 N.J. 2, 5 (1969) (quoting Rule 4:37-2(b)).

"[I]f, accepting as true all the evidence which supports the position of the party

defending against the motion and according him the benefit of all inferences

which can reasonably and legitimately be deduced therefrom, reasonable minds

could differ, the motion must be denied." Ibid. (citing Bozza v. Vornado, Inc.,

42 N.J. 355 (1964)). We apply the same standard as the motion judge. Dutton,

458 N.J. Super. at 230.

      Daniel's expert, Seigel, testified about the RLI underwriting guidelines for

2014 and 2016, and testified based on his broad experience in the insurance

industry that the 2011 guidelines would have been at least as broad, not

narrower. This testimony was not stricken as a net opinion. Evaluating the


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                                       26
testimony under the standard that governs a motion for a voluntary dismissal, a

reasonable juror could have readily inferred the underwriting guidelines for the

RLI policy would have not excluded Daniel's parents or their family members.

Seigel testified expressly that such disqualifiers as youthful operators or

operators with previous DWI charges did not exist. Seigel added that as the

Yablonskys presented no more than standard risks, they would have fit within

the RLI program.

      In addition, Seigel testified that an excess policy, as distinguished from

an umbrella policy, generally tracked the terms of the underlying coverage.

Although his testimony on this point was at times ambiguous, he testified

expressly that in his opinion the coverage was available: "it was excess

uninsured/underinsured motorist coverage in the RLI policy."

      Seigel's testimony supported a reasonable inference that the RLI policy

would have provided the Yablonskys with $1,000,000 in excess umbrella

coverage. Daniel had no burden to disprove policy exclusions. Generally, a

defendant asserting an insurance policy's exclusion has the burden of proving i t.

      In view of the Supreme Court's holding in Lynch concerning a broker's

duty and proof of breach of that duty, 42 N.J. at 477, Seigel's testimony, and our

standard of review, we conclude Daniel's proofs should have survived the


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                                       27
Lobosco defendants' involuntary dismissal motion. Daniel having established

through Seigel that excess UM coverage was available to the Yablonskys, it was

incumbent upon the Lobosco defendants to prove RLI underwriting guidelines

or policy exclusions would have precluded coverage.

      The Lobosco defendants emphasize general principles of proximate

causation and strenuously argue that without proving the terms and conditions

of a policy, neither Daniel nor any similarly situated plaintiff can sustain the

burden of proving causation. We reject that argument for two reasons. First,

considering Daniel's expert's testimony, Daniel submitted proofs that, when

viewed under the liberal standard governing involuntary dismissal motions,

established a factual dispute for the jury to resolve. Second, as the Supreme

Court made clear in Lynch, the insured does not sue on a contract of insurance;

rather, the insured seeks recovery for the loss occasioned by the failure to

procure such a contract. Ibid. Seigel's testimony established that a $1,000,000

excess UIM policy was available to the Yablonsky family and the Lobosco

defendants breached their duty by failing to procure it. Under the standard

applicable to a motion for an involuntary dismissal at trial, Daniel's claim should

have survived the motion.




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                                       28
      We have considered the Lobosco defendants' remaining arguments and

found them to be without sufficient merit to warrant further discussion. R. 2:11-

3(e)(1)(E). Accordingly, we reverse the order involuntarily dismissing Daniel's

case and remand the case for retrial.

                                        V.

      Last, we address the order that granted summary judgment to Encompass

and dismissed the Lobosco complaint for contractual indemnification. Our

review of the trial court's grant of summary judgment to Encompass is de novo,

Cypress Point Condo. Ass'n, 226 N.J. at 415, as is our interpretation of the

agency agreement, Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011).

      The indemnification agreement requires, as a prerequisite, that any

"claims, losses, damages, liabilities, judgments or settlements, including

reasonable costs, expenses and attorneys' fees . . . aris[e] out of the relationship

of the parties under the terms of this Agreement." Daniel's claim against the

Lobosco defendants did not arise out of the Encompass-Lobosco Group agency

agreement. Rather, they arose out of a separate and independent duty Mr.

Lobosco owed to Daniel's father, and concerned Mr. Lobosco's failure to inform

Daniel's father of an insurance product provided not by Encompass, but by RLI




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through the Big I, as evidenced by the first complaint Daniel filed, which did

not include Encompass.

      The agency agreement's indemnification provision also required that the

claim against the Lobosco Group be caused by an act or omission of Encompass,

and not by any conduct of the Lobosco Group that caused, contributed to or

compounded such act, error or omission. Here it was not an act or omission by

Encompass, but an omission by Mr. Lobosco that gave rise to Daniel's claim

against the Lobosco defendants.       The clear and unambiguous terms of the

indemnification    provision   thus     preclude   the   Lobosco     defendants'

indemnification claim. See Kieffer, 205 N.J. at 223 ("If an indemnity provision

is unambiguous, then the words presumably will reflect the parties'

expectations."). Accordingly, we affirm the trial court's order that granted

summary judgment to Encompass and dismissed the Lobosco defendants'

indemnification claim against Encompass.

      Affirmed in part, reversed in part, and remanded for retrial of plaintiff's

claim against the Lobosco defendants. We do not retain jurisdiction.




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