                        NOT FOR PUBLICATION WITHOUT THE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-5505-14T1

PAUL J. BANACH and APRIL
BANACH,

        Plaintiffs-Appellants,

v.

ALEX TARAKANOV and ELENA
TARAKANOV,

        Defendants,

and

NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,

     Defendant-Respondent.
——————————————————————————————————

              Argued May 18, 2017 – Decided September 12, 2017

              Before Judges Hoffman, O'Connor and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No. L-
              6238-13.

              Barry D. Epstein argued the cause for
              appellants   (The  Epstein   Law  Firm,   PA,
              attorneys; Mr. Epstein, of counsel and on the
              brief; Michael A. Rabasca, on the brief).
            David T. Robertson argued the cause for
            respondent (Harwood Lloyd, LLC, attorneys; Mr.
            Robertson, of counsel and on the brief).

PER CURIAM

      Plaintiffs Paul and April Banach1 filed suit against defendant

New Jersey Manufacturers Insurance Company (NJM) asserting claims

of negligence, gross negligence, and willful misconduct relating

to   inadequate   underinsured   motorist    (UIM)2    coverage   in   their

commercial automobile insurance policy.          Plaintiffs now appeal

from two Law Division orders: the first denied their motion to

amend their complaint, and the second granted NJM's motion for

summary judgment, dismissing their complaint.

      In denying plaintiffs' motion to amend their complaint, the

Law Division concluded the "purported amendment . . . would be

futile" and also "prejudicial" to NJM. From our review, the record

does not support these conclusions.          We therefore reverse the

order denying plaintiffs leave to amend their complaint.

      In   considering   NJM's   summary    judgment    motion,   the   Law

Division refused to consider the report of plaintiffs' expert,

concluding it constituted a net opinion.       Plaintiffs' expert based


1
    For ease of reference, we refer to plaintiffs by their first
names. We do not intend any disrespect by this informality.
2
    According to NJM's Commercial Auto Insurance Buyer's Guide,
uninsured motorist (UM) and UIM coverages are "sold together."
Frequently, the combined coverage is referred to as UM/UIM
coverage.
                           2                            A-5505-14T1
his   opinions   upon   his    extensive       experience      in   New    Jersey's

insurance market and its regulation, after reviewing all relevant

parts of the record.     Following our review of the expert's report,

we reject the trial court's conclusion that plaintiff's expert

offered   a   net   opinion.          The    judge   further    concluded       that

plaintiffs' claim against NJM is barred by N.J.S.A. 17:28-1.9.

Because the record reveals factual questions whether NJM satisfied

the criteria to benefit from the immunity provided by this statute,

we reverse the trial court's grant of summary judgment and remand

for trial.

                                        I.

      Viewing the record in the light most favorable to plaintiffs

as the non-moving parties, see Angland v. Mountain Creek Resort,

Inc., 213 N.J. 573, 577 (2013), we discern the following facts.

On May 27, 2013, Paul sustained serious bodily injuries while

operating his motorcycle in Paramus.               The accident occurred when

defendant Elena Tarakanov, while driving a car owned by her

husband, defendant Alex Tarakanov, made an improper left-hand turn

in front of Paul.       IFA Insurance Company insured the Tarakanov

vehicle, providing $100,000 of bodily injury liability coverage.

Plaintiffs    ultimately      settled       with   the   Tarakanovs       for   their

$100,000 policy limit.        Foremost Insurance Company insured Paul's



                                  3                                         A-5505-14T1
motorcycle;   however,      the    policy     included   only   liability   and

collision coverage.

      On January 21, 2000, NJM issued a business auto policy to

plaintiffs' newly formed company, Paul Banach Construction LLC

(Banach Construction).       The policy provided $500,000 of liability

coverage but only $100,000 of UM/UIM coverage.

      April handled the insurance for Banach Construction.             Before

purchasing the policy from NJM, which does not have brokers or

agents,   April   spoke     with   one   of    its   representatives   on   the

telephone.    According to April, "I asked them to just let me know

what I had to have.       I went by their guidance[,]"          and "[I] asked

them what would be my benefit to have."                  Referring to NJM's

coverage selection form3 (CSF), April said,

           Basically they went over it and told me just
           to sign my name and fax it[,] and they would
           do the rest.

                  . . . .

           After . . . a discussion[,] they advised me
           that they would put what I needed.

                  . . . .

           I didn't really understand any                  of the
           document[,] I'm embarrassed to say.            . . . I
           wanted somebody to guide me[,] and I           was with
           them since I was 17. I wanted them             to guide
           me. I guess I was wrong.



3
    The form is labeled, "COMMERCIAL AUTO COVERAGE SELECTION FORM."
                             4                              A-5505-14T1
        At the end of the phone call, April followed the instructions

she received and signed the CSF in blank, before faxing the form

to NJM.     At her deposition, she confirmed the coverage selections

on the form "aren't my markings[,]" expressing certainty because

"I don't do this x swirly thing."

        The completed CSF selected $500,000 for liability coverage

but only $100,000 for UM/UIM coverage.      The form also reflected

selection of the "No Limitation on Lawsuit Option," above a

paragraph that stated this selection will result in a higher

liability premium.     Thereafter, NJM issued a policy that included

these coverages.

        According to April, "in the years following[,] I would call,

ask if there were any changes I should know about, anything that

I should choose differently[,] and they would tell me to just

write no changes across the top[,] which is what I would always

do."4    In January 2011, April contacted NJM to add a vehicle to

their policy and spoke with NJM representative Ryan Ennis.5     After




4
     The record indicates recordings of at least some of these
conversations are still available; however, the record only
contains the transcript of a January 6, 2011 conversation.
5
    At his deposition, Stanley Brzezinski, NJM's commercial lines
underwriting manager, described Ennis as a "call center rep." All
NJM call center reps hold a New Jersey insurance producer's
license.
                            5                              A-5505-14T1
obtaining the information regarding the additional vehicle, Ennis

initiated the following colloquy with April:

         Q:   Alright. I will put that on there for
              you.   Now do you have your own . . .
              personal auto policy or is this your only
              policy in the household?

         A:   This is it.

         Q:   This is it.    OK . . . because what I
              would suggest adding, since you don't
              currently have a personal auto policy in
              your household . . . there's no coverage
              for yourself or . . . for your husband
              for . . . personal injury protection in
              case you were to . . . borrow anyone's
              vehicle or be a passenger in someone
              else's vehicle.

         A:   Hmm.

         Q:   What we can offer is an endorsement to
              the policy which adds that coverage . . .
              'cause that way you would have . . .
              protection for yourself, personal injury
              for no matter where you're at . . .
              whoever's vehicle you're in, whether it
              be   a    passenger   or   borrowing    a
              vehicle, . . . you would have that
              coverage.

         Q:   How much is that?

         A:   Well, it depends on the . . . options
              that you choose[;] it could be as low as
              about $100 or up to about $200 depending
              on different options that you . . . .

         Q:   A month?

         A:   Uh, no, that's per year.

         Q:   Oh.

                            6                             A-5505-14T1
         A:   It's not, not much money, you know,
              more[,] and it does give you . . . a
              benefit that way since you don't have a
              personal policy, it protects you, you
              know, for personal injury . . . as far
              as it can go.

         Q:   Um. OK. Yeah, I definitely need to look
              into that, well, especially with that
              cost, I mean, it's really not much of a
              difference . . .

         A:   Yeah.

         Q:   . . . broken down.

              . . . .

         A:   It's taking me so long to fill out this
              form. There's so many questions.

         Q:   I know . . .       I know.

         A:   Because I am a generally like a
              person . . . who doesn't, isn't an
              insurance broker or anything, it's really
              hard to understand most of it.

         Q:   Yeah . . . yeah. Well, I mean, what I
              can do with you here, if you have a
              minute, I can . . . go over the price of
              what the difference would be for . . .
              selecting      the     options      and,
              recommend . . . what you would want from
              these.

    Ennis proceeded to "suggest" that April increase the medical

expense limit on plaintiffs' policy from $250,000 to $1 million,

with a $250 deductible (the minimum deductible permitted by law).

April accepted his suggestion.        Ennis then agreed to fax the

coverage selection form to April, telling her "you need to check

                             7                             A-5505-14T1
off everything that we just discussed.           So what I'll do is I'll

put an arrow next to . . . the options that I just chose for you."

April complied, checking off the coverages selected by Ennis and

faxing the form back to him.

     According to Brzezinski, from the time defendant issued its

first policy to plaintiffs in 2000, to the time of Paul's accident,

NJM had a "practice and procedure" of including "a coverage

selection form (CSF) and a Buyer's Guide," as required by law,

with every application for a business auto insurance policy, and

each and every renewal.     Although Brzezinski said NJM did not have

a practice or policy of aligning an insured's liability coverage

with the insured's UM/UIM coverage, he admitted he did not know

the industry standard outside of NJM.      When asked if he was "aware

of any statistic at NJM of the percentage of policies that do not

match liability with UM[-]UIM," he responded, "It's low."

     Additionally, Brzezinski was asked about April's testimony,

"that she was told to sign [the CSF] and send it back and the

representative would fill in the coverage and place the check

marks for the applicable coverage."             Plaintiff's counsel then

inquired, "Is that the way it's supposed to go?           Is that proper

procedure?"      Brzezinski responded, "It's backward."

     In August 2013, plaintiffs filed their complaint seeking

damages   from    Tarakanov,   alleging   she    negligently   caused   the

                                8                                 A-5505-14T1
accident.     Thereafter,         plaintiffs    filed    an      amended   complaint

adding NJM as a defendant, alleging NJM "seriously and flagrantly

failed   to   meet    its     obligations      to    plaintiff,     including        its

obligation to properly advise plaintiff of coverages, the effect

of   coverages,       the      inadequacy       of     coverages,       has       given

misinformation       and    has   otherwise     failed      to   properly       furnish

information of proper insurance coverages in its dealing with

plaintiff."    Plaintiffs further alleged NJM's conduct "represents

negligence,   gross        negligence,   willful      and    wanton   conduct        and

malice as a matter of law."

     After    receiving       discovery,    plaintiff        obtained      an    expert

report from Armando M. Castellini.                  According to his certified

biography, Castellini has been a technical consultant and expert

witness to attorneys in insurance matters and litigation involving

approximately 1700 cases in twenty-four states.6


6
    Castellini's biography further states he previously served in
various positions within the insurance industry, including:
president of the Independent Insurance Agents of New Jersey; the
New Jersey Insurance Commissioner's agent representative to the
governing committee of the Automobile Insurance Plan; member of
the committees involved in the drafting, enactment, and
implementation of the New Jersey No-Fault Law; vice-president of
the Insurance Broker's Association of New Jersey; member of the
New Jersey Department of Insurance Task Force on Banking and
Insurance; Member of the New Jersey Automobile Full Insurance
Underwriting Association's Rules and Forms Committee; member of
the New Jersey Department of Insurance Commissioner's Producer
Advisory Committee; director of the New Jersey Association of
Insurance Licensing Schools.

                                    9                                           A-5505-14T1
      Before issuing his report, Castellini reviewed voluminous

records,   including    "[a]pproximately        700   pages       of     documents

produced   by    [defendant]    consisting   of   [c]overage           [s]election

[f]orms and policy declaration pages."

      According to Castellini,

           Because insurance companies believed they
           could   not    "under-write"   the   exposures
           presented by UM and UIM coverages, they
           generally tended to be adverse to selling the
           coverages, and the statutory change that made
           it the insured's option to purchase increased
           limits of UM/UIM when prior to this it had
           been the insurer's option to sell increase[d]
           limits was not well received by most insurance
           companies. An . . . example of this reaction
           is found in [NJM's memo from around January
           1974].     These memos from management to
           personnel of carriers were clearly intended
           to avoid the application of the statutory
           change, and a direction to not "sell"
           increased limits of UM/UIM – unless an insured
           was wise enough to understand the coverage,
           its availability, and the serious nature of
           the exposure they faced absent the coverages.

      Castellini attached a copy of the January 1974 NJM memo to

his   report.7      Addressed    to   "SALES,     CLAIMS      &    UNDERWRITING

PERSONNEL," the memo stated, in relevant part:

           . . . Insureds may now purchase high limits
           of coverage to protect themselves more fully
           against damage or injury by an uninsured
           motorist and by so doing, automatically
           receive an extension of their coverage to


7
   At his deposition, Brzezinski stated the individuals listed on
the memo "were attorneys with [NJM] and the president of the
company."
                            10                            A-5505-14T1
            include     Under-insured     Motorist      Coverage    as
            well.

                   . . . .

            At present[,] it is not our intent to actively
            market this new form of coverage. You
            nevertheless should be aware of its existence
            and the fact that on an insured's request, we
            will provide it.

      Castellini      cited   "the   introduction        of   the    Basic     Auto

Policy . . . and the Special Auto Policy" as explaining "why the

very large majority [of] Insurance Producers have developed the

practice of recommending high limits of liability coverage so that

their clients may then procure up to those high limits for their

protection    against    [u]ninsured      and    [u]nderinsured      drivers      or

vehicles."

      Castellini      further    opined,        "[I]n    today[']s       insurance

environment in New Jersey, it is very rare to find a [p]ersonal

or [c]ommercial [a]uto policy that does not have UM/UIM limits

that match the policy's liability limits – and when that occurs,

it   is   deemed   to    be   violative    of     [industry]    standards       and

practices."    He therefore concluded, NJM

            failed to conform to the generally accepted
            standards and practices relative to the
            matching of an insured's UM/UIM limits to the
            policy's liability limits; arbitrarily and
            capriciously established is own internal
            processes and procedures with regard to UM/UIM
            sales and limits; and did so intentionally and
            willfully; in violation of the statute as well
            as the industry practice.
                              11                                           A-5505-14T1
He further noted, "A very minimal increase in the UM/UIM premium

would    have    been   charged   for    the   increase    from       $100,000    to

$500,000."

       In December 2014, NJM filed a motion for summary judgment.

The trial court heard oral argument on January 23, 2015, and

reserved decision.

       Plaintiffs then filed their motion to amend their complaint,

seeking to include an allegation that NJM violated the New Jersey

Consumer Fraud Act8 (CFA).            Following oral argument on May 29,

2015, a different judge denied plaintiffs' motion.                He first noted

that in Myska v. New Jersey Manufacturers Insurance Company, 440

N.J.    Super.   458,   485   (App.     Div.   2015),   appeal    dismissed       as

improvidently granted, 224 N.J. 523, 524 (2016), this court held,

"[T]he CFA is not appropriate where a regulatory scheme deals

specifically,      concretely,    and     pervasively     with    a    particular

activity implying a legislative intent not to subject parties to

multiple regulations that as applied will work at cross purposes."

He then concluded,

            We now have a regulatory system where a party
            is entitled to purchase what they call
            insurance which is a basic policy which gives
            people recovery for property damage of $5,000
            and medical bills for $10,000 and provides no
            liability insurance.      People buy those
            policies.   They get sued.   They think they

8
    N.J.S.A. 56:8-1 to -206.
                                  12                                       A-5505-14T1
           have insurance, but they have no liability
           insurance. . . .

                The fact that . . . there's no contest
           and no dispute that NJM offered the option of
           having the insured purchase UM/UIM coverage
           to equal the amount purchased by the insured
           for liability coverage.    There's no dispute
           as to that.     That was the option of the
           consumer, and the consumer chose not to do it.

                 . . . .

           Based   upon  that   highly   regulatory   and
           statutory scheme, the purported amendment to
           include the claim for a violation of the [CFA]
           would be futile, and it would certainly be
           prejudicial to this defendant who has been
           litigating this case without that allegation
           presented before [it] until two weeks before
           trial.

     On   June   18,   2015,   the   first   judge   issued    his   reserved

decision, granting NJM's summary judgment motion and dismissing

all claims against NJM with prejudice.          The judge set forth his

reasons in a thirty-eight-page written opinion.               He first noted

that plaintiffs were not entitled to assert a UIM claim because

Tarakanov had $100,000 of liability coverage, and plaintiffs had

the same amount of UIM coverage.       He then concluded, "Even if . . .

a mistake could be found in this case, the [c]ourt cannot find

that any fraudulent or unconscionable conduct has taken place to

merit reformation."

     The judge further ruled that plaintiffs' "expert's opinion

in this case will play no part in the discussion of whether

                                13                                    A-5505-14T1
[plaintiffs] are entitled to reformation of the insurance policy

or damages, because [the expert] has rendered an inadmissible net

opinion."     The judge further found that NJM was "entitled to

immunity under N.J.S.A. 17:28-1.9," providing it with "a shield

against both claims for reformation and damages." He therefore

granted NJM's summary judgment motion and dismissed plaintiffs'

complaint.    This appeal followed.

                                        II.

     We first address the Law Division order denying plaintiffs'

motion to amend their complaint to assert a CFA claim. Our Supreme

Court has "made clear that 'Rule 4:9-1 requires that motions for

leave to amend be granted liberally' and that 'the granting of a

motion to file an amended complaint always rests in the court's

sound discretion.'"      Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490,

501 (2006) (quoting Kernan v. One Washington Park Urban Renewal

Assocs.,    154   N.J.   437,    456-57       (1998)).   "That   exercise    of

discretion requires a two-step process: whether the non-moving

party will be prejudiced, and whether granting the amendment would

nonetheless be futile."         Ibid.

     A plaintiff may pursue a CFA claim "against an insurance

company for 'fraudulent, deceptive or other similar kind of selling

or advertising practices,' [but] there are limits on the statute's

application."      Myska, supra, 440 N.J. Super. at 485 (quoting

                                  14                                  A-5505-14T1
Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 271 (1978)).        "To

prevail on a CFA claim, a plaintiff must establish three elements:

'1) unlawful conduct by defendant; 2) an ascertainable loss by

plaintiff; and 3) a causal relationship between the unlawful

conduct and the ascertainable loss.'"      Id. at 484 (quoting Zaman

v. Felton, 219 N.J. 199, 222 (2014)).     Under the CFA, an "unlawful

practice" includes

          any   unconscionable   commercial   practice,
          deception, fraud, false pretense, false
          promise, misrepresentation, or the knowing,
          concealment, suppression, or omission of any
          material fact with intent that others rely
          upon   such   concealment,   suppression   or
          omission, in connection with the sale or
          advertisement of any merchandise or real
          estate, or with the subsequent performance of
          such person as aforesaid, whether or not any
          person has in fact been misled, deceived or
          damaged thereby.

          [N.J.S.A. 56:8-2.]

     In   Myska   we   further    noted   that,   although   "the   CFA

'encompass[es] the sale of insurance policies as goods and services

that are marketed to consumers,' it was not intended as a vehicle

to recover damages for an insurance company's refusal to pay

benefits." Myska, supra, 440 N.J. Super. at 485 (quoting Lemelledo

v. Benefit Mgmt. Corp., 150 N.J. 255, 270 (1997)). We nevertheless

agreed that "Lemelledo authorizes pursuit of a private right of

action against an insurance company for 'fraudulent, deceptive or


                             15                                A-5505-14T1
other similar kind of selling or advertising practices.'"                 Ibid.

(quoting Daaleman, supra, 77 N.J. at 271).

       Here, plaintiffs do not seek to recover damages for an alleged

refusal to pay benefits; instead, plaintiffs seek reformation of

their NJM policy to match their UM/UIM coverage with their $500,000

of liability coverage.           In their initial complaint against NJM,

plaintiffs alleged NJM's conduct represents "gross negligence,

willful and wanton conduct and malice as a matter of law."                These

allegations not only loosely track the exception to the immunity

statute, N.J.S.A. 17:28-1.9, they also allege conduct that would

violate    the    CFA's   broad    proscription   "of     any    unconscionable

commercial practice, deception . . . , misrepresentation, or the

knowing, concealment, suppression, or omission of any material

fact     with    intent   that    others   rely   upon    such    concealment,

suppression or omission."          N.J.S.A. 56:8-2.

       Based upon our review of the record, including the admitted

"backward" procedure followed in the initiation and amendment of

plaintiffs' policy, and the opinions of plaintiff's expert, we

reject    the    conclusion      plaintiff's   proposed    amended   complaint

"would be futile."        Additionally, we discern no prejudice to NJM

by the proposed amendment since the CFA claim is based on the same

underlying facts and events set forth in the original pleading.

We further conclude NJM has no cause to complain of the late

                                    16                                  A-5505-14T1
assertion of claims grounded on the same conduct already alleged

in the complaint.    We hold that no cognizable prejudice will inure

to NJM by the amendment sought by plaintiffs. We therefore reverse

the May 29, 2015 order denying plaintiffs' motion to file an

amended complaint.

                                       III.

      We next address the rejection of the report of plaintiffs'

expert as a net opinion.       The admissibility of expert testimony

is committed to the sound discretion of the trial court.               Townsend

v. Pierre, 221 N.J. 36, 52 (2015).            A trial court's grant or denial

of a motion to preclude expert testimony is entitled to deference

on appellate review.      Ibid.     Our Supreme Court has instructed us

to "apply [a] deferential approach to a trial court's decision to

admit expert testimony, reviewing it against an abuse of discretion

standard."    Id. at 53 (alteration in original) (quoting Pomerantz

Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)).

      N.J.R.E. 702 and 703 frame our analysis for determining the

admissibility of expert testimony.             N.J.R.E. 702 identifies when

expert testimony is permissible and requires the experts to be

qualified in their respective fields.             N.J.R.E. 703 addresses the

foundation for expert testimony. Expert opinions must "be grounded

in   'facts   or   data   derived      from     (1)   the   expert's   personal

observations, or (2) evidence admitted at the trial, or (3) data

                                  17                                    A-5505-14T1
relied upon by the expert which is not necessarily admissible in

evidence but which is the type of data normally relied upon by

experts.'"    Townsend, supra, 221 N.J. at 53 (quoting Polzo v. Cty.

of Essex, 196 N.J. 569, 583 (2008)).

     "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . .

which     forbids   the   admission   into   evidence     of   an    expert's

conclusions that are not supported by factual evidence or other

data.'"     Id. at 53-54 (alteration in original) (quoting Polzo,

supra, 196 N.J. at 583).        Therefore, an expert is required to

"'give the why and wherefore' that supports the opinion, 'rather

than a mere conclusion.'"       Id. at 54 (quoting Borough of Saddle

River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)).             The net

opinion rule directs "that experts 'be able to identify the factual

bases   for   their   conclusions,    explain   their    methodology,      and

demonstrate that both the factual bases and the methodology are

reliable.'"     Id. at 55 (quoting Landrigan v. Celotex Corp., 127

N.J. 404, 417 (1992)).        In short, the net opinion rule is "a

prohibition against speculative testimony."             Harte v. Hand, 433

N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer,

301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154

N.J. 607 (1998)).

     Plaintiffs argue the Law Division abused its discretion when

it rejected Castellini's report as a net opinion.                   We agree.

                                18                                    A-5505-14T1
Castellini    based    his   report        on   his    extensive     background,

education, and experience, along with his review of the significant

record in this case.         He has been actively involved in the

insurance business and its regulation for many years, dating back

to the enactment of No Fault Insurance in New Jersey.                He properly

based   his   conclusions    on    these     facts    and   experiences.      See

Townsend, supra, 221 N.J. at 53 (quoting Polzo, supra, 196 N.J.

at 583).

                                       IV.

     Our review of a ruling on summary judgment is de novo.

Parsons v. Mullica Twp. Bd. of Educ., 440 N.J. Super. 79, 83 (App.

Div. 2015).    We apply the same legal standard as the trial court.

Ibid.      Summary   judgment     is   appropriate     when   "the   pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law."                 R. 4:46-

2(c).    When determining whether the record contains a genuine

issue of material fact, the court must consider "whether the

competent evidential materials presented, when viewed in the light

most favorable to the non-moving party, are sufficient to permit

a rational factfinder to resolve the alleged disputed issue in



                                  19                                     A-5505-14T1
favor of the non-moving party."        Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995).

     NJM   argues   the   Law   Division      properly    granted    summary

judgment, claiming entitlement to immunity, pursuant to N.J.S.A.

17:28-1.9, which provides, in pertinent part:

           a. [N]o . . . insurer . . . shall be liable
           in an action for damages on account of the
           election of a given level of motor vehicle
           insurance coverage by a named insured as long
           as those limits provide at least the minimum
           coverage required by law or on account of a
           named insured not electing to purchase [UIM]
           coverage, collision coverage or comprehensive
           coverage.   Nothing in this section shall be
           deemed to grant immunity to any person causing
           damage as the result of [its] willful, wanton
           or grossly negligent act of commission or
           omission.

           b. The coverage selection form required
           pursuant to [N.J.S.A. 39:6A-23] shall contain
           an acknowledgement by the named insured that
           the limits available to him for [UM] coverage
           and [UIM] coverage have been explained to him
           and a statement that no . . . insurer . . .
           shall be liable in an action for damages on
           account of the election of a given level of
           motor vehicle insurance coverage by a named
           insured as long as those limits provide at
           least the minimum coverage required by law or
           on account of a named insured not electing to
           purchase [UIM] coverage, collision coverage or
           comprehensive coverage, except for that person
           causing damage as the result of [its] willful,
           wanton or grossly negligent act of commission
           or omission.

N.J.S.A.   17:28-1.9   was   enacted    "to    abrogate    prior    judicial

decisions holding insurers, agents, and brokers liable for failing

                                20                                   A-5505-14T1
to   advise    their    customers    of   the   availability   of   additional

[UM/UIM] coverage" and to quell the "explosion of litigation by

providing blanket immunity except in cases of willful, wanton, or

gross negligence." Strube v. Travelers Indem. Co., 277 N.J. Super.

236, 237, 242 (App. Div. 1994), aff'd o.b., 142 N.J. 570 (1995).

      Immunity applies as long as the insurer establishes the

following:

              (1) the named insured's coverage limits were
              at least the minimum coverage required by law;

              (2) the named insured's alleged damages were
              not caused by a "willful, wanton or grossly
              negligent act of commission or omission;" and

              (3) the carrier complied with the coverage
              selection requirements of N.J.S.A. 17:28-
              1.9(b).

              [Baldassano v. High Point Ins. Co., 396 N.J.
              Super. 448, 453-54 (App. Div. 2007).]

In   addition,     an    insurer     must   have    obtained   an    insured's

acknowledgement that the available UM/UIM coverage limits were

explained to him, and the insurer will not be liable for the

insured's selection of coverage that was chosen in accordance with

subsection (a) of the immunity statute.            N.J.S.A. 17:28-1.9(b).

      If applying for a new policy, the insured must check-off the

options elected on the coverage selection form and then sign and

return the form to the insurer.             N.J.S.A. 39:6A-23(a); N.J.A.C.

11:3-15.7(a).      A completed, executed coverage selection form is

                                    21                                 A-5505-14T1
"prima   facie   evidence   of    the   insured's   knowing   election   or

rejection of any option."        N.J.S.A. 39:6A-23(e).

     Significantly, in Avery v. Wysocki, 302 N.J. Super. 186, 190-

192 (App. Div. 1997), we held:

           [T]he insured's completion and execution of
           the coverage selection form is a condition of
           the grant of immunity by subsection a. It is
           plain that the purpose of the immunity is to
           shift   the   responsibility    for   coverage
           selection from the insurer to the insured. It
           is also plain that under the legislative
           scheme, the mechanism by which the insured is
           enabled to make an informed coverage choice
           and thereby to protect himself is the coverage
           selection form mandated by N.J.S.A. 39:6A-23
           . . . . We think it clear that without this
           protection, the grant of the immunity by
           N.J.S.A. 17:28-1.9a would have far harsher
           consequences than the Legislature intended.
           That is to say, the subsection a immunity is
           based on the assumption that the insurer will
           have complied with the dictates of N.J.S.A.
           39:6A-23 by providing the insured with an
           adequate description of available coverages
           and their limits.

                 . . . .

           We recognize the salutary purposes of the
           immunity. We also appreciate, however, that
           insistence on meticulous compliance with the
           applicable     coverage    selection     form
           requirements is the legislative trade-off, as
           it were, for according the immunity.

     In Pizzullo v. New Jersey Manufacturers Insurance Company,

196 N.J. 251 (2008), our Supreme Court addressed the immunity

provision at issue in another UIM coverage case involving NJM.           In

Pizzullo, NJM argued that "because it is a direct-writing insurer
                            22                            A-5505-14T1
and does not employ brokers or agents, it had no duty to plaintiffs

other     than     to      comply      with      the     statutory     notification

requirements."          Id. at 263 (citing Andriani v. N.J. Mfrs. Ins.

Co., 245 N.J. Super. 252, 256-57 (App. Div.), certif. denied, 126

N.J.    327   (1991)).         NJM    asserted    "that      its   customer    service

representatives are neither agents nor brokers, because they do

not offer recommendations or advice about insurance needs, give

counsel to the insureds, sell policies or suggest increases or

decreases to coverage."            Ibid.   Notwithstanding "what its customer

service representative said" to the plaintiffs in Pizzullo, NJM

argued that it was "entitled to immunity because it mailed the

plaintiffs       the    Buyer's      Guides   and      Coverage    Selection        Forms

required by the statute."             Ibid.

       After reviewing the history of the immunity statute, the

Court flatly rejected the "blanket immunity" advanced by NJM.                         Id.

at 268.       Viewed in its historical context, the Court concluded

"the    Legislature        meant     the   statute      to    confer   immunity       in

circumstances relating to an insured's election of UIM coverage

when the insured attempts to later shift the blame for a decision

to opt for any level of coverage less than the maximum back onto

the insurer."          Ibid.

       Because the inadequate UIM coverage in Pizzullo resulted from

inaccurate       responses      the    plaintiff        received     from     the     NJM

                                      23                                       A-5505-14T1
representative,        the   Court     rejected     NJM's     argument     that   the

plaintiff made an "election of . . . coverage," N.J.S.A. 17:28-

1.9(b), that triggered immunity for NJM.                    Pizzullo, supra, 196

N.J. at 269-70.          After concluding the immunity statute did not

apply,   the    Court     reinstated       the   monetary     judgment    previously

entered by the Law Division in favor of the plaintiffs following

trial.   Id. at 274.

     Applying the analysis employed by the Court in Pizzullo, we

are satisfied the record here clearly raises factual questions

precluding summary judgment.               Viewed in the light most favorable

to plaintiffs, April never made an election of any coverages to

trigger immunity in favor of NJM; instead, Ennis offered to make

the policy elections, and April accepted his offer.                  Moreover, in

2000, April signed the CSF before any selections were made, a

procedure      which    NJM's   own    underwriting      manager    described       as

"backward."       The statute grants an insurer immunity upon "the

insured's   completion       and     execution     of   the   coverage    selection

form," Avery, supra, 302 N.J. Super. at 190, not the insurer's

"call center rep."           On remand, we expect the trial court will

address, with the benefit of a full trial record, whether NJM's

handling    of    plaintiffs'         policy      resulted     in   the    required

"meticulous compliance with the applicable coverage selection form

requirements."         Id. at 192.

                                      24                                     A-5505-14T1
     Of further note, the Court in Pizzullo reaffirmed well-

established principles that we find apply to the unusual factual

circumstances under review:

            An insurance company is "expert in its field
            and its varied and complex instruments are
            prepared by it unilaterally whereas the
            assured or prospective assured is a [lay
            person] unversed in insurance provisions and
            practices."   Gibson v. Callaghan, 158 N.J.
            662, 669, (1999) (quoting [Allen v. Metro.
            Life Ins. Co., 44 N.J. 294, 305 (1965)]).
            Because of the substantial disparity in the
            sophistication of the parties, and because of
            the highly technical nature of insurance
            policies,   we   have   long   "assume[d]   a
            particularly vigilant role in ensuring their
            conformity to public policy and principles of
            fairness."   Id. at 669-70 (quoting Voorhees
            v. Preferred Mut. Ins. Co., 128 N.J. 165, 175
            (1992)).

            [Pizzullo, supra, 196 N.J. at 270.]

     The record also contains substantial evidence that supports

the opinion of plaintiffs' expert that NJM arbitrarily established

its own internal processes and procedures regarding the sale of

UM/UIM coverage, contrary to "accepted standards and practices

relative to the matching of an insured's UM/UIM limits to the

policy's liability limits." The record contains no contrary expert

opinions.

      In addition, notwithstanding the contention of NJM counsel

at oral argument that "it's NJM's practice not to advise as to

coverages,"    the   record   contains   compelling   evidence   to   the

                               25                                A-5505-14T1
contrary.     The record clearly reflects that Ennis advised April

regarding the option and the benefit of adding an endorsement to

plaintiffs' commercial auto policy that would provide plaintiffs

with personal injury protection (PIP) coverage, if they were

driving or occupying a non-owned vehicle.           He also recommended

plaintiffs increase the medical expense benefits portion of their

PIP coverage from $250,000 to $1 million.          April accepted these

recommendations and Ennis amended plaintiffs' policy to implement

these important changes.9

     Having    identified    two   major   deficiencies   in    plaintiffs'

policy, and having rectified them for plaintiffs, a major issue

that remains is why Ennis failed to identify the deficiency of

plaintiffs' UM/UIM coverage not matching their liability coverage.

One possible explanation, advanced by plaintiffs' expert, is that

NJM maintained a policy, dating back to 1974, to "not . . .

actively     market"   UIM   coverage.       The   record      contains   no

documentation announcing a change in the policy announced in NJM's

1974 memo.

     We conclude the record clearly indicates factual questions

precluding summary judgment: first, whether NJM complied with the



9
   We do not suggest any criticism of the changes Ennis recommended
and made to plaintiffs' policy. To the contrary, it appears these
changes reflected wise counsel and resulted in much improved
coverage for plaintiffs.
                             26                             A-5505-14T1
coverage   selection    requirements      of    the   immunity    statute,    and

second, whether NJM caused plaintiffs' damages by a "willful,

wanton   or   grossly   negligent   act    of    commission      or   omission."

N.J.S.A. 17:28-1.9.

    Reversed and remanded.      We do not retain jurisdiction.




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