                        NOT FOR PUBLICATION WITHOUT THE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-4860-15T1



M&S WASTE SERVICES, INC.,

        Plaintiff-Appellant,

v.

PRAETORIAN INSURANCE CO.,

        Defendant-Respondent,

and

RICHARD LECOMTE and
STATE OF NEW JERSEY DIVISION
OF WORKERS COMPENSATION,

     Defendants.
_______________________________

              Argued November 13, 2017 - Decided August 24, 2018

              Before Judges Messano and Accurso.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Docket No.
              L-1977-12.

              Ralph P. Ferrara argued the cause for
              appellant (Ferrara Law Group, attorneys;
              Ralph P. Ferrara and Morgan J. Zucker, on
              the briefs).
         James P. Ricciardi, Jr. argued the cause for
         respondent (White Fleischner & Fino, LLP,
         attorneys; James P. Ricciardi, Jr., on the
         brief).

PER CURIAM

    This matter, a dispute over cancellation of a workers'

compensation policy for non-payment of premium, returns to us

following our remand in 2014.   See M&S Waste Servs. v.

Praetorian Ins. Co., A-4246-12 (App. Div. Aug. 14, 2014) (slip

op. at 9).   We reversed summary judgment to defendant Praetorian

Insurance Co. and remanded to determine whether its alleged

prior practice of accepting late premiums and reinstating the

policy after cancellation reasonably led plaintiff M&S Waste

Services, Inc. to assume "to its detriment, that the policy

would be reinstated" when Praetorian cashed M&S's premium check

ten days after the date the policy was to be cancelled for non-

payment in October 2011.   Ibid.

    Following some additional discovery on remand, Praetorian

in 2015 again moved for summary judgment.   The court dismissed

M&S's bad faith claim and ruled that Praetorian complied with

its statutory obligations for cancelling the policy under

N.J.S.A. 34:15-81(b), thus granting the motion in part.   Finding

the factual dispute we found over the parties' course of dealing

relating to the acceptance of late premium payments not to have


                                   2                        A-4860-15T1
been "addressed and eliminated" by the additional discovery,

however, the court denied Praetorian summary judgment in part,

and the parties proceeded to a plenary hearing on that issue

before another judge.

    That judge took testimony over the course of two days from

M&S's principal and the individual overseeing Praetorian's

workers' compensation operations and permitted the parties to

read into the record deposition testimony from her predecessor,

no longer employed by the company.   After hearing from the

witnesses and considering the documents in evidence and the

arguments of counsel, the judge put a comprehensive opinion on

the record rejecting M&S's claims.   Specifically, the judge,

although not "doubt[ing] [M&S's principal's] sincerity or his

bona fides at all," found "all of the prior cancellation notices

were paid before the cancellation took effect, and this one

wasn't."

    Recapping his detailed findings, the judge stated:

                I don't view this as a situation where
           equitable estoppel applies whatsoever. The
           course of conduct was that [M&S's principal]
           always paid before the last date due, before
           the cancellation took place. This is the
           time that he didn't, and it cost him,
           dearly, because he didn't have coverage.
           Unfortunately, he didn't know about it,
           because, for whatever reason, he didn't pay
           attention to it until after the claim came
           in. He didn't pay attention to it when he

                                3                         A-4860-15T1
           got notice of the audit, and I understand
           that in the context that he had previously
           had workers' compensation insurance with
           different carrier or different carriers, and
           knew that they do an audit to adjust the
           premium at the end of the year. But this
           wasn't the end of his . . . policy. This
           was in December/January. His policy goes —
           is supposed to go until April — the end of
           April. So, again, it didn't set bells off
           in his head that there was something amiss.

                He's a reasonable person. He's a
           reasonable businessman, and he made a
           mistake in the Court's eyes that can't be
           justified under the circumstances. So, for
           those reasons I find in favor of the
           defendant. I don't think there's a change
           in the policy. I don't think it's a
           situation where it . . . the grace [period]
           applies, and even if it did, he passed it.

    M&S appeals, arguing two points, one that the trial court

"committed reversible errors in its findings of fact and

conclusions of law which led to the erroneous dismissal of

claims."   We reject that argument as without sufficient merit to

warrant discussion in a written opinion.    See R. 2:11-

3(e)(1)(E).    Final determinations of the trial court in a non-

jury case are subject to a limited and well-established scope of

review:    "'we do not disturb the factual findings and legal

conclusions of the trial judge unless we are convinced that they

are so manifestly unsupported by or inconsistent with the

competent, relevant and reasonably credible evidence as to

offend the interests of justice[.]'"   In re Trust Created By

                                 4                          A-4860-15T1
Agreement Dated December 20, 1961, ex rel. Johnson, 194 N.J.

276, 284 (2008) (quoting Rova Farms Resort, Inc. v. Investors

Ins. Co. of Am., 65 N.J. 474, 484 (1974)).   Applying that

standard provides us no basis to disturb the judge's careful

findings here.

    M&S's second point, that the motion judge erred in granting

partial summary judgment to Praetorian based on the court's

finding that Praetorian complied with the statutory requirements

for cancelling the workers' compensation policy, requires

discussion.

    N.J.S.A. 34:15-81, the statute that governs cancellation of

workers' compensation policies, provides in pertinent part that:

         No such policy shall be deemed to be
         canceled until:

              a. At least ten days' notice in
         writing of the election to terminate such
         contract is given by registered mail by the
         party seeking cancellation thereof to the
         other party thereto; and

              b. Until like notice shall be filed in
         the office of the commissioner of banking
         and insurance, together with a certified
         statement that the notice provided for by
         paragraph "a" of this section has been
         given; and

              c. Until ten days have elapsed after
         the filing required by paragraph "b" of this
         section has been made.



                               5                             A-4860-15T1
M&S does not dispute that Praetorian provided M&S with the

notice required by subsection (a).    The question is whether the

"like notice" it provided to CRIB, the Compensation Rating and

Inspection Bureau, and specifically its "certified statement

that the notice provided for by paragraph 'a' of this section

has been given," complied with N.J.S.A. 34:15-81(b).

    The Supreme Court addressed the certified statement

requirement in Sroczynski v. Milek, 197 N.J. 36, 41 (2008).

There, New Jersey Manufacturers sent its insured notice of

cancellation of its workers' compensation policy for non-payment

of premium by certified mail and filed its "like notice" with

the Commissioner of the Department of Banking and Insurance via

the electronic file transfer protocol (FTP) established by CRIB.

Id. at 39-40.   The judge of compensation found NJM did not

effectively cancel the policy because it failed to file a

written "certified statement" when it transmitted the data by

way of the FTP, notwithstanding NJM's reliance on the CRIB

manual in filing its "like notice."   Id. at 41.

    We affirmed the decision on appeal, rejecting NJM's

arguments that the compensation judge engaged in "a hyper-

technical approach to statutory construction" and that NJM's

"failure to provide the 'certified statement' represent[ed] an

inconsequential deviation from the statutory requirements."

                                6                           A-4860-15T1
Sroczynski v. Milek, 396 N.J. Super 248, 256 (App. Div. 2007).

Instead, we concluded accepting those arguments "would require

us to ignore a portion of the statutory scheme that the

Legislature believed was important, and would in effect

constitute a rewriting of the statute by this court."      Ibid.

    The Supreme Court affirmed in a per curiam opinion for the

reasons we expressed, adding that "[t]he language of N.J.S.A.

34:15-81 is clear and unambiguous, allowing for no

interpretation other than that filing a certified statement with

the Commissioner is a prerequisite to effectuating the

cancellation of coverage."   Sroczynski, 197 N.J. at 43.    The

Court concluded "the use of the FTP system to transmit data

about policy cancellations, without any accompanying

certification, cannot be effective in light of the clear and

unambiguous demands of N.J.S.A. 34:15-81(b)."   Ibid.

    The Court also emphatically rejected NJM's argument that

its submission without the certified statement substantially

complied with the statute, writing:

         [T]his is not a case that satisfies the
         policies that inform the substantial
         compliance doctrine. Here, the Legislature
         did not simply require notice to the
         Commissioner but also commanded that the
         insurer provide a certification by an
         employee attesting to the truthfulness of
         the fact that proper notice was afforded the
         insured. Although the legislative history

                                7                            A-4860-15T1
           of the Act is sparse, it seems obvious that
           the purpose of that provision was to place
           personal responsibility on an employee of
           the insurer to assure that proper notice of
           cancellation was given and to require that
           employee to certify to that fact,
           recognizing the legal implications of a
           false certification. The electronic
           provision of information to the
           Commissioner, without a certification,
           completely defeats the notion of personal
           responsibility that the certification
           provision was intended to secure. It was,
           thus, not simply a technical misstep. As
           such, the insurer could derive no comfort
           from a substantial compliance analysis which
           is meant to ameliorate the harsh
           consequences of actions that meet the spirit
           of a law but technically fall short.

           [Id. at 44.]

    The record on summary judgment on remand established that

Praetorian used an outside vendor, Madison Consulting Group, to,

in the words of its former head of workers' compensation

operations, "transmit [Praetorian's] statistical code quoting

data to the respective workers comp bureaus, in this case, New

Jersey."   The record contains a transmittal letter, FORM TL-1,

to CRIB dated September 30, 2011, submitting by electronic FTP

twenty records reflecting transactions for the period from

September 22, 2011 through September 29, 2011.   The transmittal

letter does not reference M&S, but the parties agree that among

the records submitted under cover of that letter on September



                                8                          A-4860-15T1
30, 2011, was a notice of cancellation to M&S mailed on the same

date.    The transmittal letter provides:

           9. The person signatory hereto certifies on
           behalf of the (Praetorian Insurance Company)
           and its property casualty affiliates that
           all attached data furnished herewith are
           correct and in accordance with the company's
           records. The undersigned, on behalf of the
           carriers, further certifies that like notice
           of election to terminate the stated
           contracts of insurance have been given to
           the employers in accordance with the
           requirements of N.J.S.A. 34:15-81.

The certification is signed by Ernest Rogers, Madison Consulting

Group.

    The summary judgment record also reflects a "New Jersey

Approved Form for Filing Notice of Cancellation by Carrier,"

Form 116-B, which references M&S specifically, and states that

notice of cancellation "was mailed Employer" on September 30,

2011.    That form contains a certification signed by the

president of Praetorian on the same date, stating:

"CERTIFICATION THE UNDERSIGNED INSURANCE CARRIER CERTIFIES THAT

LIKE NOTICE OF ELECTION TO TERMINATE THE STATED CONTRACT OF

INSURANCE HAS BEEN GIVEN THE EMPLOYER IN ACCORDANCE WITH

REQUIREMENT OF N.J.S.A. 34:15-81."

    The parties dispute, however, when that Form 116-B was

filed with CRIB.    Praetorian asserts the form was mailed to CRIB

on September 30, 2011.    Praetorian, however, presented no proof

                                 9                          A-4860-15T1
of mailing on summary judgment.     M&S asserts in accordance with

a letter from the Director of CRIB produced in discovery, that

Praetorian's Form 116-B was not filed with CRIB until March 23,

2012, well after both the purported date of cancellation and the

January 2012 accident and resulting workers' compensation claim

precipitating this suit.

    Relying on the Supreme Court's opinion in Sroczynski, M&S

argued the certification by an employee of Madison Consulting

Group did not satisfy Praetorian's obligation for a certified

statement under N.J.S.A. 34:15-81(b) because Madison's employee,

Rogers, "plainly had no personal knowledge that the notice was

sent to [M&S] and could not certify to that fact as required by

the statute."   Because N.J.S.A. 34:15-81(c) provides that no

policy "shall be deemed to be cancelled . . . [u]ntil ten days

have elapsed after the filing required by paragraph 'b' of this

section," M&S contended the policy was not effectively cancelled

on October 17, 2011.

    M&S argued Praetorian's attempt "to 'cure' the defect" by

"backdate[ing]" its hard copy filing of Form 116-B with CRIB,

well after the accident was reported to Praetorian and after

Praetorian appeared in the workers' compensation hearing to deny

coverage supported a bad faith claim.     Praetorian denied the



                               10                           A-4860-15T1
allegations, claiming its Form 116-B was mailed to CRIB on

September 30, 2011.

    The motion judge found "there were no genuine issues of

material fact regarding [Praetorian's] compliance with the

statutory requirements regarding the cancellation of the

policy."   The judge distinguished Sroczynski on the basis that

the insurer in that case, NJM, "failed to provide any

certification at all."   The court rejected the Sroczynski

Court's analysis that the purpose of the certification

requirement "was to place personal responsibility on an employee

of the insurer to assure that proper notice of cancellation was

given and to require that employee to certify to that fact,

recognizing the legal implications of a false certification,"

Sroczynski, 197 N.J. at 44, because "the statute does not

explicitly . . . impose the requirement that an employee provide

the certification, and . . . no other court decisions have

imposed that certification [requirement]."

    The motion judge found the certification attesting to

notice of cancellation to the employer was made by Ernest

Rogers, "on behalf of" Praetorian.   The judge rejected M&S's

reliance on the "CRIB Manual," which provides that cancellation

notices submitted in other than hard copy Form 116-B, e.g., via

electronic FTP, must be accompanied by the New Jersey

                               11                            A-4860-15T1
Transmittal Letter and "contain the signature of the carrier in

Item 9 [the certification]," because "[t]he manual does not

explicitly state that an employee's signature is required."

    The court concluded "[t]hat Mr. Rogers was not an employee

[of] Praetorian does not constitute a violation of the statute.

The purpose of the statute was effected, in that the state was

put on notice of the cancellation and defendant had, in fact,

received the like notice, as certified."   Although acknowledging

the parties' dispute over when Praetorian filed its Form 116-B,

the court found it immaterial based on its conclusion that Mr.

Rogers's certification "on behalf of" Praetorian on the

transmittal letter, FORM TL-1 satisfied the carrier's

obligations under N.J.S.A. 34:15-81(b).

    We review summary judgment using the same R. 4:46-2

standard as the trial judge.   RSI Bank v. Providence Mut. Fire

Ins. Co., __ N.J. __ (Aug. 7, 2018) (slip op. at 13-14); Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).     Our

review of questions of law is de novo, without deference to any

interpretive conclusions we believe mistaken.   Nicholas v.

Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, L.P. v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).   As the Court

has recently reminded, "[o]ur function is not 'to weigh the

evidence and determine the truth of the matter but to determine

                               12                         A-4860-15T1
whether there is a genuine issue for trial.'"   Petro-Lubricant

Testing Labs., Inc. v. Adelman, 233 N.J. 236, 256 (2018)

(quoting Brill, 142 N.J. at 540).

    Applying that standard here leaves no doubt that summary

judgment on Praetorian's compliance with the cancellation

requirements of N.J.S.A. 34:15-81(b) was inappropriate on this

record.   The motion judge erred in rejecting the Court's

statement in Sroczynski that "the purpose of [N.J.S.A. 34:15-

81(b)] was to place personal responsibility on an employee of

the insurer to assure that proper notice of cancellation was

given and to require that employee to certify to that fact,

recognizing the legal implications of a false certification,"

Sroczynski, 197 N.J. at 44, because "the statute does not

explicitly . . . impose the requirement that an employee provide

the certification, and . . . no other court decisions have

imposed that certification [requirement]."

    The rule on dicta of our Supreme Court is clear and not

open to debate.   See State v. Dabas, 215 N.J. 114, 136 (2013);

State v. Breitweiser, 373 N.J. Super. 271, 282 (App. Div. 2004).

Simply stated, "matters in the opinion of a higher court which

are not decisive of the primary issue presented but which are

germane to that issue . . . are not dicta, but binding decisions

of the court."    State v. Rose, 206 N.J. 141, 183 (2011) (quoting

                                13                          A-4860-15T1
5 Am. Jur. 2d Appellate Review § 564 (2007)).    As the Court has

explained:

            [A]ppellate courts are bound by the Supreme
            Court's considered dicta almost as firmly as
            by the Court's outright holdings,
            particularly when, as here, a dictum is of
            recent vintage and not enfeebled by any
            subsequent statement. If lower courts felt
            free to limit Supreme Court opinions
            precisely to the facts of each case, then
            our system of jurisprudence would be in
            shambles, with litigants, lawyers, and
            legislatures left to grope aimlessly for
            some semblance of reliable guidance.

            [Rose, 206 N.J. at 183 (quoting McCoy v.
            Mass. Inst. of Tech., 950 F.2d 13, 19 (1st
            Cir. 1991)).]

    The Court's analysis of the purpose of the certification

requirement in Sroczynski is binding and controls the outcome of

this case.    The motion judge's finding that "[t]he purpose of

the statute was effected" by notice to CRIB of the cancellation

without regard to the efficacy of the certified statement was

expressly rejected by the Court in Sroczynski.    See 197 N.J. at

43-44.

    Accordingly, we reverse the entry of summary judgment to

Praetorian on its compliance with the requirements of N.J.S.A.

34:15-81.    We also vacate the judgment on the bad faith claim

limited to the issue of whether Praetorian attempted to "cure"

its failure to submit a properly certified statement to CRIB at


                                14                         A-4860-15T1
the time it purported to cancel M&S's policy by backdating the

FORM 116-B tat CRIB claims was filed in March 2012, in the event

the court determines Praetorian failed to file a properly

certified statement when it purported to cancel the policy in

2011.   We remand for further proceedings to resolve these two

discrete issues.

    We portend nothing as to the outcome by our comments.       We

also do not preclude Praetorian from attempting to prove, in

addition to the fact that it filed its FORM 116-B on September

30, 2011, that Ernest Rogers had personal knowledge of the

mailing of the cancellation notice to M&S and his company's

relation to Praetorian was such that his certification on the

FORM TL-1 "attesting to the truthfulness of the fact that proper

notice was afforded" M&S substantially complied with the

legislative purpose "to place personal responsibility on an

employee of the insurer to assure that proper notice of

cancellation was given and to require that employee to certify

to that fact, recognizing the legal implications of a false

certification."    Sroczynski, 197 N.J. at 44.

    We end by noting our dismay at having to again remand a

matter first presented to us five years ago.     The parties'

apparent unwillingness to conduct the discovery necessary to

resolve the obvious factual dispute underlying Praetorian's

                                15                          A-4860-15T1
filing of its certified statement with CRIB should not be

permitted to continue on remand.

    Affirmed in part, reversed in part and remanded for further

proceedings as limited in this opinion.




                              16                            A-4860-15T1
