                        NOT FOR PUBLICATION WITHOUT THE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-2182-15T4

C.S. OSBORNE & CO., INC.,

        Plaintiff-Appellant,

v.

THE CHARTER OAK FIRE INSURANCE
CO., and THE TRAVELERS COMPANIES
INC.,

        Defendants,

and

BOLLINGER, INC., n/k/a ARTHUR
J. GALLAGHER & CO.,

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

              Submitted February 2, 2017 – Decided May 1, 2017

              Before Judges Lihotz, Hoffman and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              0211-14.

              Paray Law Group, LLC, attorneys for appellant
              (Paul E. Paray, on the briefs).

              White and Williams, LLP, attorneys for
              respondent (Christopher P. Leise, Marc L.
              Penchansky, and Alicia M. Van Sciver, of
              counsel and on the brief).
PER CURIAM

       Plaintiff C.S. Osborne & Co., Inc. appeals from a December

8, 2015 order granting summary judgment to defendant Bollinger,

Inc.   (Bollinger),    and   dismissing   plaintiff's   claims   against

Bollinger    with   prejudice.1    Bollinger   served   as   plaintiff's

insurance broker from 2001 until 2012, when Superstorm Sandy

flooded and damaged plaintiff's commercial facilities in Harrison.

Plaintiff filed a complaint alleging professional negligence and

related claims against Bollinger2 because its flood insurance

policy provided only $1,000,000 of coverage, well below the amount

of damage to plaintiff's facilities.      Plaintiff alleged Bollinger

had a duty to provide quotes for higher policy limits.             Judge

Francis B. Schultz disagreed and granted summary judgment to

Bollinger, and denied plaintiff's cross-motion for partial summary

judgment.




1   Plaintiff also appeals from a separate December 8, 2015 order
denying its cross-motion for partial summary judgment, as well as
an order denying reconsideration. Plaintiff further claims the
court erred in failing to order a change of venue.

2   Plaintiff also sued its insurance carrier, The Charter Oak
Fire Insurance Company, and its underwriting issuing company, The
Travelers Companies, Inc. (collectively, Travelers).    After the
entry of the orders dismissing Bollinger from the case, plaintiff
proceeded to trial against Travelers, reaching a settlement prior
to verdict.
                            2                             A-2182-15T4
      Plaintiff    repeats       the    same    argument     on    appeal.     After

reviewing the record and applicable law, we conclude Judge Schultz

correctly concluded Bollinger had no duty to provide quotes for

higher policy limits.        We therefore affirm.

                                          I.

      We recite the facts found in the summary judgment record

viewed in a light most favorable to plaintiff.                    Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).                       Plaintiff, a

family business in operation since 1826, manufactures tools used

for leatherwork, upholstery, and other purposes.                      Plaintiff has

its   headquarters,       along        with    manufacturing        facilities,   in

Harrison; it also has manufacturing facilities in St. Louis,

Missouri.

      After     meeting    with        Bollinger,   plaintiff        purchased    an

insurance     policy      from    Travelers       covering        three   commercial

buildings in Harrison, along with its Missouri property.                          The

policy was in effect from sometime in 2004 through the date of

Superstorm Sandy.         The policy excluded water loss but included

"Broad   Form    Flood"    coverage       of   $1,000,000     for    flood   damage.

Bollinger's March 2012 insurance renewal proposal3 stated, "Higher

limits or sub-limits may be available so please advise us if you



3   The proposal listed a total replacement cost of $11,746,950
for plaintiff's buildings and contents at its Harrison location.
                            3                             A-2182-15T4
are interested in higher limits options so that we may secure

quotations    for   your   consideration."         On    October     29,     2012,

Superstorm Sandy flooded and damaged plaintiff's three buildings.

     In March 2012, plaintiff provided Bollinger with an appraisal

dated January 14, 2011, which stated, "The subject property is

situated within flood hazard zone 'X' as depicted on Community

Panel #340221 0081 D, dated August 16, 2006[,] and published by

the Federal Emergency Management Agency (FEMA)."                  The appraisal

stated, "[T]he effect of the flood plain on the value of the

subject property is considered limited."       The appraisal valued the

property at $1,600,000.

     Steve Marshall, a Bollinger insurance broker with thirty

years   of   experience,   handled   plaintiff's        account    since     2001.

Marshall and his team worked with plaintiff to assist with any

insurance or risk management issues. Marshall testified he managed

client relationships, made sure clients were happy, made sure

"things [were] done proper[ly]," and replaced canceled policies

with more suitable policies to meet his clients' needs.                     In his

deposition,    Marshall    stated    he   toured    plaintiff's        Harrison

facilities in 2001 and 2004.

     Beginning in 2004, Marshall and plaintiff's president saw

each other at monthly board meetings of a local cemetery. Marshall

testified that unlike most clients, plaintiff's president had

                               4                                           A-2182-15T4
access to him on almost a monthly basis to discuss any follow-up

issues regarding insurance renewals.            Plaintiff's expert witness

opined that because elevations were low with a river nearby, a

discussion about flooding should have occurred.

     On March 20, 2003, Bollinger wrote plaintiff suggesting it

purchase terrorism coverage, which plaintiff purchased.                    On June

2, 2004, after meeting plaintiff's president, Marshall advised

plaintiff to explore coverage for Employment Practices Liability

Insurance    (EPLI).        The   message    also     stated,   "If       the   cost

[outweighs] the benefit then [plaintiff] can always decline to

purchase    the   coverage."       On   March   24,    2005,    while     advising

plaintiff    of   revised    premiums,      Marshall    detailed      a   "Package

policy," which included earthquake coverage, and recommended the

higher deductible.

     On June 28, 2006, Kelly Lamb, an account executive with

Bollinger, provided plaintiff's president with a products recall

coverage application for review after noticing the absence of such

coverage in plaintiff's policy.              Lamb concluded, "If you are

interest[ed] in purchasing this coverage in the future, kindly

forward this completed application . . . so that we may obtain

pricing on your behalf."

     On March 30, 2007, Lamb wrote plaintiff's president regarding

insurance renewals.     In the letter, Lamb confirmed a conversation

                                  5                                         A-2182-15T4
on March 30, 2007, between plaintiff's president and Marshall,

during which plaintiff's president declined coverage for Pollution

Liability,     Directors   &    Officers   Liability,    and     Employment

Practices Liability. On April 13, 2009, Lamb confirmed plaintiff's

purchase of a new Directors & Officers Liability Policy, and an

EPLI policy.

     On February 8, 2010, Lamb informed plaintiff it may need to

increase the amount of its "ERISA Bond" in order to comply with

The Employee Retirement Income Security Act (ERISA), depending on

the amount of assets in its retirement plan.          On March 28, 2011,

Lamb provided plaintiff's president with a Workers Compensation

Renewal Quotation and a Management Liability Renewal Proposal for

review.   Lamb also included optional Crime Coverage and Increased

Directors & Officers Liability limits for review.

     On   March   31,   2011,   Lamb   confirmed   plaintiff's    president

declined primary flood coverage as originally quoted on a renewal

proposal and noted, "Flood Coverage will be excess to the Missouri

location as a result of this location being situated in a hazardous

flood zone[,] according to Travelers' records."           The email also

noted plaintiff retained the Management Liability Program but

declined optional Crime Coverage quotations.           In a November 23,

2015 certification in support of plaintiff's cross-motion for

partial summary judgment, plaintiff's counsel asserted unsolicited

                                 6                                  A-2182-15T4
flood coverage quotations were provided solely for plaintiff's

Missouri facility in 2011 and 2012.        In a December 1, 2015

certification, Marshall explained that once the high-hazard flood

zone was determined, the policy would leave plaintiff without

flood coverage in Missouri up to $500,000 on building loss and

contents; therefore, Bollinger proposed the new coverage.

     On September 5, 2014, plaintiff filed an amended complaint

against Bollinger, alleging broker malpractice, negligence, breach

of contract, violation of the implied covenant of good faith, and

consumer fraud.    On May 8, 2015, plaintiff filed a motion to

disqualify the initial judge assigned to the case, vacate an April

10, 2015 order granting Bollinger's motion to compel and extend

discovery, and transfer the venue from Hudson County to Essex

County.   Bollinger opposed plaintiff's motion.

     On May 29, 2015, the initial judge granted plaintiff's motion

to disqualify herself4 and vacate her April 10, 2015 order.      The

initial judge declined to consider plaintiff's motion for a change

of venue, but specifically stated, "If any party seeks a discovery

extension and/or a change of venue, two motions must be filed as

the Assignment Judge will hear all change of venue applications


4   The judge noted, "This court   failed to realize that Travelers
is a party inasmuch as Travelers   was neither the movant [nor] the
opposing party on the [April 10,   2015] motion." The record shows
the judge previously worked for    a law firm that handled matters
for Travelers.
                            7                               A-2182-15T4
and     all   matters   in   which     this   court       has     a    conflict."

Notwithstanding this direction, plaintiff did not file a change

of venue motion with the Assignment Judge.

      The case was then reassigned to Judge Schultz, who decided

the cross-motions for summary judgment under review, granting

Bollinger's motion for summary judgment and denying plaintiff's

cross-motion for summary judgment.        In a concise written opinion,

Judge    Schultz   summarized   each    party's     arguments.          Bollinger

contended it was not required "to advise a client of the need to

raise its already existing limits or to provide any other manner

of risk assessment services absent a 'special relationship[,]'

which Bollinger asserts never existed."           Plaintiff countered that

a   "special    relationship"   existed,      but   did    not        contend   the

relationship required Bollinger to merely advise plaintiff of

higher policy limits; instead, plaintiff asserted the special

relationship required Bollinger to solicit additional quotes for

higher flood insurance limits and offer the quotes for higher

coverage to plaintiff.

      The judge noted, "Those cases that have found a special

relationship involve situations where the special relationship was

related to the special duty that was breached."                 In this case,

                   The extensive discovery covering the
              twelve[-]year       relationship      between
              [plaintiff] and Bollinger involving many
              different insurance products provides fertile
                                8                                          A-2182-15T4
           ground   for   either    proving   a   special
           relationship   regarding    providing   actual
           quotes for specified higher limits or showing
           that there was no such relationship.       The
           court is well satisfied that no such special
           relationship has been established.         The
           plaintiff is in effect saying "you go first"
           meaning it was not sufficient for Bollinger
           to advise plaintiff of higher limits at higher
           costs and invite a request for same. Rather
           Bollinger should have listed all the possible
           quotes for all the possible higher limits.
           Since flood was only one type of insurance
           Bollinger provided [plaintiff], assumedly
           Bollinger was obligated to do the same with
           all the various categories of insurance it
           provided [plaintiff].

                It is rather clear that there was no
           history of such a thing between the two.
           Bollinger's motion to dismiss counts alleging
           negligence and malpractice is granted.

     The   judge     further   concluded,    "The    record     discloses    no

suggestion that 'but for' any alleged wrongdoings by Bollinger,

Travelers would have paid more than they did.          In fact, the record

clearly establishes no proximate cause can be shown regarding

these   theories."      Therefore,   the    court    dismissed   plaintiff's

remaining claims against Bollinger.

     Plaintiff moved for reconsideration, essentially arguing that

when the court decided whether the parties' relationship gave rise

to a legal duty, it decided issues of credibility and questions

of fact not subject to summary judgment.        Following oral argument,

Judge   Schultz    denied   plaintiff's    motion,    finding    he   did   not


                                9                                     A-2182-15T4
"overlook[] any law," misstate "any fact," or make "a credibility

determination."    This appeal followed.

                                     II.

       When reviewing a grant of summary judgment, we employ the

same   standards   used   by   the   motion   judge   under    Rule     4:46.

Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162,

167 (App. Div.), certif. denied, 154 N.J. 608 (1998).            First, we

determine whether the moving party has demonstrated there were no

genuine disputes as to material facts, and then we decide whether

the motion judge's application of the law was correct.           Atl. Mut.

Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31

(App. Div.), certif. denied, 189 N.J. 104 (2006).             In so doing,

we view the evidence in the light most favorable to the non-moving

party.   Brill, supra, 142 N.J. at 523.       We accord no deference to

the motion judge's conclusions on issues of law, Estate of Hanges

v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010);

Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995), which we review de novo.          Dep't of Envtl. Prot. v.

Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

       It is well-settled that "to render a person liable on the

theory of negligence there must be some breach of duty, by action

or inaction, on the part of the defendant to the individual

complaining, the observance of which duty would have averted or

                               10                                     A-2182-15T4
avoided the injury."    Brody v. Albert Lifson & Sons, Inc., 17 N.J.

383, 389 (1955).    Determination of whether a duty exists turns on

questions of "fairness and policy that, in turn, implicate many

factors."    Fackelman v. Lac d'Amiante du Quebec, 398 N.J. Super.

474, 486 (App. Div. 2008).        "Th[is] inquiry involves a weighing

of the relationship of the parties, the nature of the risk, and

the public interest in the proposed solutions."           Cheng Lin Wang

v. Allstate Ins. Co., 125 N.J. 2, 15 (1991) (quoting Kelly v.

Gwinnell, 96 N.J. 538, 544 (1984)).

     "The existence of a duty to exercise reasonable care to avoid

a risk of harm to another is a question of law," Fackelman, supra,

398 N.J. Super. at 486, subject to our de novo review. "Of course,

the legal determination of the existence of a duty may differ,

depending on the facts of the case."       Wang, supra, 125 N.J. at 15.

     An insurance broker's liability for negligent acts affecting

an insured has been addressed by our Supreme Court, which noted

"[t]he   import    of   the    fiduciary   relationship    between    the

professional and the client is no more evident than in the area

of insurance coverage."       Aden v. Fortsh, 169 N.J. 64, 78 (2001).

            Insurance intermediaries in this State must
            act in a fiduciary capacity to the client
            "[b]ecause of the increasing complexity of the
            insurance   industry   and   the   specialized
            knowledge required to understand all of its
            intricacies."     Walker v. Atl. Chrysler
            Plymouth, Inc., 216 N.J. Super. 255, 260 (App.
            Div. 1987) (quoting Sobotor v. Prudential
                              11                                 A-2182-15T4
               Prop. & Cas. Ins. Co., 200 N.J. Super. 333,
               341 (App. Div. 1984)); see also N.J.A.C.
               11:17A-4.10 ("An insurance producer acts in a
               fiduciary capacity in the conduct of his or
               her insurance business.").     The fiduciary
               relationship gives rise to a duty owed by the
               broker to the client "to exercise good faith
               and reasonable skill in advising insureds."
               Weinisch v. Sawyer, 123 N.J. 333, 340 (1991).

               [Id. at 78-79.]

      The scope of the duty an insurance broker owes an insured was

initially discussed in Rider v. Lynch, 42 N.J. 465 (1964).                          The

facts    in    Rider   reflect     a    prospective   insured,       who     requested

automobile       liability      coverage      to   address    a     unique    set     of

circumstances, relied on the insurance broker's recommendation of

the type of policy to procure to insure the potential risk from

the   intended     use.      Id.       at   470-71.   Actually,       the     policy's

limitations, which were not revealed to the insured by the broker,

excluded the identified risks. Id. at 471-74. Coverage was denied

when a collision occurred.              Id. at 474.

      The broker who advised the insured to obtain a specific policy

was     held    liable    for    damages      resulting      from    the     negligent

procurement of insurance.               Id. at 476.       "The Court noted that

because of the nature of the principal-agent relationship the

broker was charged with the knowledge that the policy did not fit

his client's need and, even if the broker was not aware of the

limited policy coverage, he was under a duty to examine and reject

                                       12                                      A-2182-15T4
the policy himself before delivering it to the [insured]."           Aden,

supra, 169 N.J. at 80 (citing Rider, supra, 42 N.J. at 481).            An

insured is "entitled to rely upon and believe that the broker had

fulfilled his [or her] undertaking to provide the coverage . . .

agreed   upon,   and   that   the   policy   sent   .   .   .   represented

accomplishment of that undertaking."         Rider, supra, 42 N.J. at

482.   The Court noted:

           One who holds himself [or herself] out to the
           public as an insurance broker is required to
           have the degree of skill and knowledge
           requisite to the calling. When engaged by a
           member of the public to obtain insurance, the
           law holds him [or her] to the exercise of good
           faith and reasonable skill, care and diligence
           in the execution of the commission. He [or
           she] is expected to possess reasonable
           knowledge of the types of policies, their
           different terms, and the coverage available
           in the area in which his [or her] principal
           seeks to be protected. If he [or she] neglects
           to procure the insurance or if the policy is
           void or materially deficient or does not
           provide the coverage he [or she] undertook to
           supply, because of his [or her] failure to
           exercise the requisite skill or diligence, he
           [or she] becomes liable to his [or her]
           principal for the loss sustained thereby.

           [Id. at 476.]

       In President v. Jenkins, 180 N.J. 550, 569 (2004), the Court

clarified the scope of an insurance broker's obligations to a

prospective insured, stating the broker is responsible: "(1) to

procure the insurance; (2) to secure a policy that is neither void

nor materially deficient; and (3) to provide the coverage he or
                           13                            A-2182-15T4
she undertook to supply."     However, "[t]he duty of a broker or

agent . . . is not unlimited."        Carter Lincoln-Mercury, Inc.,

Leasing Div. v. EMAR Group, Inc., 135 N.J. 182, 190 (1994).

     Absent a special relationship, "there is no common law duty

of a carrier or its agents to advise an insured concerning the

possible need for higher policy limits upon renewal of a policy."

Wang, supra, 125 N.J. at 11-12.     In Wang, the Court reviewed the

parameters of liability, starting with Rider, "the seminal case .

. . concerning a broker's liability to an insured," and its

progeny.    Id. at 12.   The Court distinguished the basis for the

duty this court found in Sobotor, wherein we ordered the automobile

insurance policy reformed to increase the uninsured/underinsured

motorist coverage because of the agent's failure to have provided

the insured with the "best available" package of insurance, as the

insured had requested.     Sobotor, supra, 200 N.J. Super. at 336,

341-43.    In that instance, we determined a "duty arises when there

is a special relationship between the insurance agent and the

client which indicates reliance by the client on the agent."      Id.

at 338.    The Court acknowledged that the existence of a "special

relationship" evincing reliance by the insured on the broker or

agent could trigger liability.     Wang, supra, 125 N.J. at 15.

     In Wang, however, because there were "no allegations of

special relationship," the Court rejected the plaintiff's argument

                              14                             A-2182-15T4
to impose a duty upon insurers that "required them 'to periodically

and regularly advise [the insureds] of a need to increase the

limits of [their] insurance coverage in light of the appreciated

value of their home[s], inflationary trends in the area, and

increased recoveries being awarded to tort victims.'"                    Ibid.

(alterations in original).    The Court consequently determined "the

policies had been routinely renewed, probably without any contact

between the parties," id. at 16, and "the obligation to inform

homeowners renewing their policies to consider higher liability

limits was not encompassed by the recognized duty of care owed by

agents to their insureds and, therefore, should be imposed, if at

all, by the Legislature."    Carter Lincoln-Mercury, supra, 135 N.J.

at 190 (citing Wang, supra, 125 N.J. at 18-19).

     Plaintiff argues Bollinger had a duty to provide additional

flood quotes for plaintiff's Harrison facilities and breached that

duty when it never provided additional quotes over their twelve-

year relationship.    Plaintiff contends the court improperly relied

on the "special relationship" analysis without considering the

three other prongs of the four-prong Carter test.           Plaintiff also

emphasizes a fiduciary duty New Jersey imputes on brokers.                  See

Aden, supra, 169 N.J. at 79.

     Under   the   four-factor    test,     plaintiff   first    argues     its

relationship   with   Bollinger       was   strong,   special,   and    unique

                                 15                                    A-2182-15T4
relating to procurement of flood insurance.       It asserts Bollinger

was its exclusive broker for over a decade, would unilaterally

review   its   insurance   and   make   recommendations,   and   obtained

additional flood limit quotes for plaintiff's Missouri location.

Plaintiff further claims Bollinger's representative toured the

facility on multiple occasions, and had a long relationship with

plaintiff's president through their positions on an outside board.

In its statement of facts, plaintiff suggests Marshall's visit put

him on notice to the risks associated with the property and gave

rise to a duty.   See Indus. Dev. Assocs. v. F.T.P., Inc., 248 N.J.

Super. 468, 471 (App. Div. 1991).

     We disagree.     Carter did not overrule Wang's holding that

absent a special relationship, "there is no common law duty of a

carrier or its agents to advise an insured concerning the possible

need for higher policy limits upon renewal of a policy."            Wang,

supra, 125 N.J. at 11-12.    Moreover, Bollinger told plaintiff that

"[h]igher limits or sub-limits may be available so please advise

us if you are interested in higher limits options so that we may

secure quotations for your consideration."        Bollinger never told

plaintiff anything that would reasonably cause plaintiff to rely

on his quotes as recommendations for the proper amount of insurance

coverage.



                                 16                               A-2182-15T4
       Next, plaintiff argues Marshall knew of the catastrophic risk

of    flood.      Plaintiff     stresses        that   Bollinger's       2012    renewal

proposal       listed    $11,746,950       as   the    replacement      cost    for   its

Harrison buildings and their contents, an amount over ten times

greater than the $1,000,000 flood limit for a property located in

a    flood    plain.        Bollinger's     insurance        proposal    also    clearly

informed plaintiff of its ability to offer more insurance coverage.

Bollinger did not have any more information than plaintiff, and

nothing in the record shows Bollinger acted to cause plaintiff to

rely on it to recommend the proper amount of insurance coverage.

       Plaintiff        also   claims      Bollinger       could      have     requested

additional quotes from Traveler's underwriter, Karen Ladner, who

had    authority       to   provide    $5,000,000       in    total     flood    limits.

Assuming this is true, we find it irrelevant to whether or not

Bollinger had a duty to provide additional quotes to plaintiff.

       Finally,     under      the    fourth     factor,      plaintiff      cites    the

National Flood Insurance Act of 1968, 42 U.S.C.A. § 4011(c), to

support its contention Bollinger's duty is in the public interest.

According to plaintiff, reasonable skill, judgment, and experience

dictate Bollinger should have known the $1,000,000 flood limit was

inadequate. Plaintiff asserts finding a duty in this case comports

with    the    broker's      responsibility       to   exercise       good   faith    and

reasonable skill.           We disagree.        An insurance broker is not an

                                      17                                         A-2182-15T4
insurance consultant; if plaintiff wanted an insurance consultant,

it could have retained one.    Bollinger's policy proposal clearly

stated it would receive payment from the insurer or another third

party, and Bollinger did nothing to suggest it worked for anyone

else.

     Plaintiff cites various dicta in Wang, supra, 125 N.J. 2,

which found the absence of a duty, to argue the duty of a broker

may differ depending upon the facts of the case.     However, Wang

explicitly stated, "We conclude there is no common law duty of a

carrier or its agents to advise an insured concerning the possible

need for higher policy limits upon renewal of the policy."      125

N.J. at 11-12.

     Plaintiff next contends Bollinger had a duty to provide

quotes, not to advise on specific purchases.       Plaintiff cites

Walker, supra, 216 N.J. Super. at 260-61, in which this court

considered reliance on specialized, professional expertise to find

a duty to inform of available coverage, and plaintiff argues

Bollinger told plaintiff to purchase other insurance coverage but

never additional flood coverage, thereby creating this sort of

reliance.   Given Bollinger's offer to provide additional quotes

of more flood insurance, we disagree.

     Plaintiff argues Bollinger did not satisfy its duty when its

proposal advised plaintiff that higher limits may be available.

                              18                           A-2182-15T4
Plaintiff asserts the motion judge should not have focused upon

the presence or absence of a "special relationship" in determining

Bollinger's duty, and additionally erred by improperly acting as

a factfinder when she determined no such relationship existed.                 We

disagree because we conclude Wang, supra, 125 N.J. at 11-12,

required the trial court to determine whether the parties' past

dealings established a special relationship.            We further reject

plaintiff's argument the judge improperly acted as a factfinder.

The record reveals no genuine disputes as to any material facts.

     Plaintiff further argues the judge should not have dismissed

its claims for breach of implied duty of good faith and breach of

contract.    Plaintiff argues it sufficiently pled the failure to

act as a claims advocate and a conflict of interest with Travelers,

so the judge should not have dismissed these claims. This argument

lacks    merit.    The   record    not   only   fails   to   support      these

alternative claims, but we also agree with Judge Schultz that "the

record   clearly   establishes     no    proximate   cause   can   be     shown

regarding these theories."

     We further agree with Bollinger that the issue of venue is

not appropriately before us because the initial judge declined to

rule on the motion to transfer venue.           Plaintiff does not argue

the first judge erred when she declined to order a change of venue.

Plaintiff should have secured a ruling from a subsequent judge if

                                  19                                    A-2182-15T4
it intended to challenge venue on appeal.    Zaman v. Felton, 219

N.J. 199, 226-27 (2014); see also Nieder v. Royal Indem. Ins. Co.,

62 N.J. 229, 234 (1973) ("[O]ur appellate courts will decline to

consider questions or issues not properly presented to the trial

court when an opportunity for such a presentation is available

unless the questions so raised on appeal go to the jurisdiction

of the trial court or concern matters of great public interest").

We therefore decline to address the issue further.

     Affirmed.




                            20                             A-2182-15T4
