Filing 27

OPINION filed. Signed by Judge Anne E. Thompson on 9/11/2017. (mmh)

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I NOT FOR PUBLICATION RECEIVED I I UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY I AT 8:30 W/LL'---.-;IA~M:-::T:--:-. W~A-LS_H_M CLERK I I LINDA DEAN, SEP 1 f 2017 Plaintiff, v. I I Civ. No. 15-6336 NEW ENGLAND LIFE INSURANCE COMPANY a.k.a. NEW ENGLAND : FINANCIAL, A METLIFE COMPA}f\7, NEW ENGLAND MUTUAL LIFE I INSURANCE COMPANY, METROPOLITAN LIFE INSURANqE COMPANY trading as METLIFE, AB C CORPS 1-X, JOHN DOES, I-XX, I OPINION 1 1 1 I Defendants. I I METROPOLITAN LIFE INSURANCp COMPANY, Third Party Plaintiff, V. I I ASHLEY SMALLING and SYDNEE \ SMALLING, I Third Party Defendants. I I THOMPSON, U.S.D.J. This matter comes before the Cotut upon the motion by Defendants New England Life I I Insurance Company and Metropolitan Life Insurance Company ("MetLife") 1 for Summary I ! I I 1 Plaintiff~ MetLife is also a Third Party this action, having brought a claim against Third Party Defendants Ashley and Sydnee Smalling~ I I ! I I Judgment. (ECF No. 19.) PlaintiffLirtda Dean ("Plaintiff') opposed and filed a Cross Motion I for Summary Judgment on Colint OneJ (ECF No. 24.) MetLife, New England Life Insurance I Company, and New England Mutual Uife Insurance Company (collectively "Defendants") I I replied and opposed. (ECF No. 25.) fe Court will decide these motions based upon the written submissions and without oral argumeni pursuant to Fed. R. Civ. P. 78(b). For the reasons set I forth below, Defendants' Motion for skrunary Judgment will be granted and Plaintiffs Cross I . Motion for Summary Judgment will bei denied. IBACKGROUND This controversy arises out of t4e payment of a life insurance policy by Defendants to Third Party Defendants. Plaintiff argu~s that Defendants should have paid the life insurance I proceeds to Plaintiff. ! I The uncontroverted facts are as follows: In June of 1991, Raymond Smalling (the I "Decedent") obtained an individual lifel insurance policy listing Plaintiff, his spouse at the time, 1 I as the beneficiary. (Defs.' Undisputed Statement of Material Facts ("SOF"), 1, ECF No 19-2.) ' ! I The Decedent died on July 16, 2013. (~d.) The beneficiary designation remained unchanged until that time. (Id.) I I I Between July 22 and July 30, 20113, Plaintiff, Mary Brenner (the Decedent's sister), and I Ashley and Sydnee Smalling (D~cedentjs children) notified Defendants of the Decedent's death. I (Id.,, 2-6.) Ms. Brenner and Ashley artd Sydnee Smalling indicated that Plaintiff and the Decedent had divorced and provided DJendants with the Judgment of Divorce and Property and Separation Agreement between PlaintiJand Decedent. (Id. mf 5--6.) In their communications I and those documents, Ms. Brenner and Ashley and Sydnee Smalling argued that Plaintiff was no ! longer the beneficiary and Ashley and Sydnee were the new beneficiaries. (Id.) They argued I I I 2 ,• that Ashley and Sydnee were to receij the insurance benefits once they reached the age of I majority. (Id.) Ashley and Sydnee stated that they had reached the age of majority and therefore I requested that the policy proce~ds be i~sued directly to them. (Id., 6.) They further stated to I Defendants, "Our mother has since mylfathers [sic] death 'disowned' us." (Id.) I . On August 2, 2013, Plaintiff ca~led Defendants and told them, inter alia, that the I Decedent was required to maintain a life insurance policy for their children, per the Judgement of • I Divorce, and the policy in questton was the only one she knew of. (Id.~ 7.)2 On August 5, I Plaintiff again called Defendants and c'anged her statement to say she believed she was the beneficiary of the policy. (Id. , 9.) I On August 5, 2013, Defendants icontacted Ashley and Sydnee to request signed i Claimant's Statements and an original ~ertified copy of the Decedent's death certificate. (Id., 10.) Ashley and Sydnee provided the ~uested documents on August 8, 2013. (Id., 11.) I Based on the provisions of the Judgmen~ of Divorce and the Property Settlement agreement, I Ashley and Sydnee's signed documents~ and the death certificate, on August 13, 2013, I Defendants issued a check each to Ashley and Sydnee Smalling, each for fifty percent of the policy proceeds. (Id. , 12.) At the time[ the proceeds were paid, it is undisputed that Ashley had I turned eighteen three years prior in 2010 and Sydnee had turned eighteen the year prior in 2012. I (Id. ,, 20, 22.) I ! I - Plaintiff and the Decedent had a Judgment of Divorce dated May 17, 2006, which incorporated and attached their Ptoperty!Settlement Agreement (''PSA") dated September 6, . 2 I . In her statement of undisputed facts th~t accompanies her cross motion for summary judgment, "Plaintiff objects to Paragraph 7, in that it is not complete as to all the items of all of the things I Plaintiff advised MetLife." (ECF No. 24-2, at 11.) This does not dispute the contents of Paragraph 7; therefore, the Court treats i~ as undisputed with the caveat of incompleteness. 3 2001. (Id. 1 15.) The PSA stated, "The [Decedent] shall maintain and pay the premium for I insurance coverage in the amount of Seventy Five Thousand ($75,000.00) Dollars naming the I . children as equal beneficiaries and naming the Wife trustee until the children are emancipated."3 (Id.~ 17, citing PSA Article VL) It all stated in a separate article, ''The child support shall be ! equally allocated until emancipation as defined by statute and case law." (Id., citing PSA Article I I III.) Plaintiff and the Decedent also executed a Custody and Visitation Agreement ("CVA") 1 more than a year later on March 3, 20or. (Id. , 16.) The CVA is not mentioned in or attached to cyA contained a specific definition of emancipation that I the Judgment of Divorce. (Id.). The I depended on the happening of certain events in Ashley and Sydnee's lives. (Id. 1 18, citing CVA I I Section 2.8.) On March 7, 2014, Plaintiff filr a complaint in New Jersey Superior Court (Dean /)4 arguing that the same Defendan~s sho4d have paid her the policy proceeds, as the listed beneficiary or as trustee for her unemaricipated children under the PSA provision and CVA . I definition. That case was removed to f~detal court and dismissed by this Court on January 29, I 2015 for failure to state a claim. On July 31, 2015, Plaintiff filed the Complaint in this action (Dean II) in New Jersey I Superior Court. Defendants removed to this Court on August 21, 2015. Plaintiff again argued . : I that under the CVA's definition of"emkcipation," neither Ashley nor Sydnee was emancipated, I and, therefore, the policy proceeds should have been paid to Plaintiff as their trustee. (ECF No. 1-2.) Plaintiff filed a five-count ComplLt alleging: (1) breach of contract, (2) breach of implied • I 3 Plaintiff seeks not only the actual damages in the amount of the policy proceeds, but also compensatory and punitive damages, whlch raises the amount in controversy above the required · jurisdictional amount for federal diversity jurisdiction under 28 U.S.C. § 1332. 4 Dean v. New England Mut. Life Ins. C~., 2015 WL 404743 (D.N.J. June 21, 2015). I I 4 I covenant of good faith and fair dealing, (3) misrepresentation and/or omission, (4) negligence, I 5 party's case, and on which that party ~11 bear the burden of proof at trial." Celotex, 477 U.S. at I 322. I I ANALYSIS I I. Defendants' Motion for Sumbiarv Judgment A. N.J.S.A. l 7B:24-5 and Gold Faith Action I Defendants first argue that the1 should be granted summary judgment on all counts because Plaintiff has alleged nq facts ~at Defendants' payment was not made in good faith, and under New Jersey law, a good faith pa}rment by a life insurer in accordance with the terms of ! the policy or contract fully discharges by claims against the insurer. I New Jersey law states, Whenever the proceeds of or ~ayments under a life or health insurance policy or annuity contract heretofore or ~ereafter issued become payable in accordance with the terms of such policy or cbntract, or the exercise of any right or privilege thereunder, payment thereof by the insurer in accordance therewith or in accordance with any written a~signment thereof shall fully discharge the insurer from all claims under the polic~ or contract. 1 N.J.S.A. 17B:24-5. 5 Together, subsequent case law and this statute provide three payment I possibilities by which the insurer is absplved of all obligation and presumed to have acted in good faith. First, this provision "fully ~rotects the insurer when it pays the policy proceeds to the named beneficiary." Vasconi v. Guhrdian Life Ins. Co. ofAm., 590 A.2d 1161, 1167 (N.J. 1991 ). Second, the payment is valid wien in accord with the exercise of a right or privilege , within the policy or, third, with I an assignment under the policy. See N.J.S.A. 17B:24-5. As the I New Jersey Supreme Court has explain~d, this good faith statute is designed to fully insulate I insurers: "In the event of a post-paymeJt dispute, the insurer will simply not be involved, I i Court has jurisdiction over the present matter pursuant to 28 U.S.C. § 1332, diversity I jurisdiction. Therefore, it properly applies the law of the state in which it sits, New Jersey. 5 This · I I I 6 having properly executed [their] duty ~der the policy to pay the named beneficiary." Vasconi, 590 A.2d at 1167. An effective change ofbeneficfary under an insurance policy requires '"substantial compliance' with the method prescrib1 in the policy to change the beneficiary," such that the I insured makes every reasonable effort Ito effectuate the change. Fox v. Lincoln Fin. Grp., 109 A.3d 221, 225 (N.J. Super. 2015). N~ Jersey law recognizes a limited exception to this requirement when spouses enter into a Idivorce decree and execute a property settlement I I agreement that purports to fully distrib}ite and settle all questions related to marital assets-in I such circumstances that agre~ent co°]trols. See Fox, 109 A.3d at 225-26 (citing Vasconi, 590 A.2d at 1166 ("A beneficiary designatibn must yield to the provisions of a separation agreement . I expressing an intent contrary to the pol~cy provision.")). I Defendants argue that they pai1 out the Decedent's policy to Ashley and Sydnee-who are the named beneficiaries according tb the Judgment of Divorce-based on the documentation I the daughters provided to them. i Plaint~ff argues that the policy was not executed in accordance with its terms, and even accepting the elrfect of the Judgment of Divorce and PSA, the benefit should have been paid to Plaintiff as ~tee until Sydnee and Ashley's emancipation. (Pl.' s I Cross Motion Summ. J. at 18-19, ECF No. 24-1.) I . I It is undisputed that the terms of the contract designated Plaintiff as the only beneficiary. I (Defs.' SOP, 1, ECF No 19-2). It is al~o undisputed that Plaintiff was no longer the beneficiary following her divorce from the DecedeJt. (Id., 17; Pl.'s SOF, 10, ECF No. 24-2). The policy I provides the Owner with the right or prifvilege to change the owner or beneficiary of the policy: I "A change of Owner or Beneficiary must be written form satisfactory to the Company, and must I I be dated and signed by the Owner who is making the change." (Life Policy, Section 11: Owner , . I 7 and Beneficiary, Ex. A, ECF No. 19-4~) 6 The PSA states in Article VI, Life Insurance, "The Husband shall maintain and pay the pfruum for insurance coverage in the amount of Seventy Five Thousand ($75,000.00) dollars n~ing the children as equal beneficiaries and naming the . Wife as trustee until the children are dnancipated." (Kurtz Deel., Ex. H, ECF No. 19-4.) The parties do not dispute that this insuran~ policy is the one referenced by the Judgment of Divorce and PSA and the one at issue in this caSe. (See Defs.' SOF, 14; Pl.'s SOF ,, 15-16.) The PSA that designated Ashley and Sydnee as the Decedent, who was both the ~eneficiaries was a written document, dated and signed by Ownj and Insured party to the Life Policy, and fully and ! explicitly incorporated into the Judgm~t of Divorce. (See Judgment of Divorce, Kurtz Deel., i Ex. G, ECF No. 19-4; PSA, KllflZ Decj·· Ex. H.) Defendants paid Ashley and Sydnee directly on the basis that the Judgment ofOivorce pamed the daughters as beneficiaries, 7 and that both daughters had passed the age of 18 and: were presumptively emancipated under New Jersey law. 8 (Defs.' Br. at 11, Defs.' SOF mf 6, 7, 9,115, 20, 22.) It is undisputed that Defendants had no knowledge of the CVA and its alternatile definition of emancipation prior to payment. (Defs.' I 6 The Court notes that the present situaLn does not meet the requirements of a valid assignment under the Policy. The Policy expressly provided for absolute assignments (change of Owner and Beneficiary) and collateral assignmentsl (change of neither), and the terms of the policy require a signed copy of an assignment form be received by the insurance company, which did not happen in this case. (Life Policy, Section 11: dwner and Beneficiary, ECF No. 19-4, Ex. A). 7 It appears that the Judgment of Divorde and PSA required the Insured, i.e. the Decedent, to maintain a life insurance policy in the atnount of $75,000.00 with Ashley and Sydnee as I beneficiaries and Plaintiff as trustee until their emancipation. The Judgment of Divorce and PSA do not name this policy specifically nor[ were Defendants aware of the divorce, Judgment of Divorce, or PSA prior to the death of the Insured. Plaintiff alleged that this was the only life insurance policy the Insured had, so the' Judgment of Divorce and PSA must apply. Defendants do not dispute that. · 8 Pursuant to N.J.S.A. 9:17B-3, "[a]ttai$ient of age 18 establishes prima facie, but not conclusive, proof of emancipation." Ntvburgh v. Arrigo, 443 A.2d 1031, 103 7 (N .J. 1982). It is undisputed that at the time the proceeds• were paid in 2013, Ashley had turned eighteen three years prior and Sydnee had turned eightben the year prior. (Id. ,, 20, 22.) I 8 I SOF 1115, 16.) Therefore, it appears that this change of beneficiary was satisfactory to the 1 I Company (Defendants) and could be Jn exercise of a right or privilege under the policy to satisfy I I N.J.S.A. 17B:24-5. However, construing these fact~ in the light most favorable to the non-moving party, I Decedent's actions may not have met the policy terms to qualify as an exercise of a right or I privilege under the policy. The policy [references, though does not explicitly require, that the written form of change should be recei~ed by the Company. (Life Policy, Section 11 : Owner ! I and Beneficiary, Ex. A, ECF No. 19-4.~ The Judgment of Divorce and PSA were not provided to ! I Defendants when the change was mad~ or prior to Decedent's death; rather, Defendants learned of this information from Ms. Brenner, ishley, Sydnee, and Plaintiff collectively. (Defs.' SOF I iMf 1-7 .) Therefore, the Court will also ~xamine the effect of the PSA on the policy by operation . I of law, not simply the policy's terms. It is undisputed that the PSA was executed pursuant to the I Judgment of Divorce between Plaintiff and Decedent. (Defs. SOF, 15.) The PSA also provided 1 for a mutual release and waiver ~frigh~ to each ex-spouse's property following the execution of I the agreement and purported to be a "rJ,olution of all issues dividing the parties." (Kurtz Deel., I i Ex. H.) (emphasis added); see Fox, 109\A.3d at 225. Therefore, although the Decedent did not inform Defendant of the change and wak not necessarily in compliance with the terms of the policy, the effect of a PSA under NJ la1 that disposes of and settles all issues of marital assets is clear. By operation oflaw, the PSA ex~ressly substituted Ashley and Sydnee as named I beneficiaries, with the proceeds payablel to Plaintiff as trustee until their emancipation. Once I again, Defendants paid Ashley and syJee as new beneficiaries on the belief and understanding I that they were emancipated at the time. I 9 Because New Jersey law creates a presumption that the insurer acted in good faith, I Defendants are discharged of all subsJquent liability based on Defendants' conduct here by I issuing the proceeds to the changed bdneficiaries under a privilege or right of the policy, or in the I 1 alternative, to the named beneficiarieslby operation oflaw. See N.J.S.A. 17B:24-5. The Court . I will consider each claim and its viability in light of this provision. . I B. Counts I and II: Breach of bontract and Breach of Implied Covenant of Good Faith . I and Fair Dealing Defendants argue that summaJ judgment should be entered in their favor on Counts One I and Two under the good faith provisioh, or in the alternative because there was no valid contract I I between Plaintiff and Defendants, and ltherefore no basis for the contract claims presented in I Counts One and Two. (Defs.' Br. at 12-13, 15-16.) Plaintiff argues that Defendants had "a I contractual obligation to pay someone, which is Linda Dean as trustee ...." (Pl.'s Br. at 14, ECF 1 I No. 24-1.) She appears to base her co~tract claims on the obligations described in the Judgment of Divorce, the PSA, and the CVA. (S~e id. at 14-17). She does not base her claims on the life I insurance policy itself or her former stJtus as named beneficiary. 9 (Id.) I I In this case, Plaintiff argues in Count One that Defendants breached the terms of the I . . contract by paying Ashley and Sydnee rhen they were not emancipated, rather than Plaintiff as trustee. In Count Two, she argues that rat payment and process leading up to the payment was in bad faith and breached the implied c?venant of good faith and fair dealing. Specifically, Plaintiff alleges that Defendants acted ih bad faith, with improper ~otive in the payment of the I 9 If she did, she would not have ,a conJct claim on this basis because it is undisputed that she was no longer the intended beneficiary,land therefore lacked standing based upon the contract. See Broadway Maint. Corp. v. Rutgers, !State Univ., 447 A.2d 906, 909 (N.J. 1982) (a third party beneficiary with contractual standing to sue exists only where there is contractual intent to recognize a right to performance in the third person). 1 I 10 policy proceeds by failing to pay her ~ trustee pursuant to contractual obligations; Defendants I mishandled the claim and failed to pay the property, resulting in her own monetary damages. I (Compl. ifif 40-42, ECF No. 1-2.) Plafntiff further alleges that "Defendant deliberately and with ! ill motives and bad faith [sic], represe*tations were made to Plaintiff and Plaintiff [sic] counsel I so as the Plaintiff would not pursue a claim or law suit against the defendant ...." (Id. . if 43.) I The key fact in dispute in the pleadings is whether Ashley and Sydnee were legally I emancipated, either pursuant to New J~rsey law or the definition set forth in the CVA, at the time I Defendants issued the policy proceedsJ, In response to Plaintiffs contentions, Defendants claim ! that they did not know about the existepce of the CVA or its alternate definition of I "emancipation" until after Plaintifffil~ her first lawsuit. (Defs.' Br. at 11-12 (referencing Dean I 1)). It is undisputed that Ashley and S~dnee were named beneficiaries under the PSA. (Defs.' I . SOF if 17.) It is further undisputed that Defendant issued the proceeds under the presumption of emancipation that attaches when an individual reaches 18 years of age. (Defs.' Br. at 11, Defs.' I SOF mf 6, 7, 9, 15, 20, 22.) I I However, because the Court has found that N.J.S.A. 17B:24-5 is applicable to the present . . I . suit, Defendant is discharged of all liability and absolved of involvement with post-payment I disputes. Vasconi, 590 A.2d at 1167. The parties' disagreement over the appropriate age of emancipation presents such a post-paJent dispute, which does not have bearing on the outcome I of this claim, nor is it essential to the cause of action. Anderson, 477 U.S. at 248. Moreover, New Jersey's good fjith statute limits the source of liability for insurers. In I Hirsch v. Travelers Insurance Compan,, 380 A.2d 715, 717 (NJ. Super. 1977), the New Jersey Superior Court found that even where a property settlement agreement pursuant to a divorce I creates alternative obligations for insurapce companies, "[i]n a direct action against the I I I I I I I 11 I companies ... plaintiffs' claim must rrst upon the responsibility of the insurers under the terms of their policies." Here, Defendants chuld arguably be liable under the Judgment of Divorce and I PSA, although not parties to said contj-acts, 10 because they paid out the proceeds of the life insurance policy pursuant to their undbtanding of these documents, thereby incorporating those I . ' terms into the terms of the policy. cJe law on N.J.S.A 17B:24-5, however, expressly precludes I such contractual claims. It is already Jstablished that Defendants properly discharged their I duties under the policy's terms by issufng proceeds to Ashley and Sydnee either as named beneficiaries by operation of law or substituted beneficiaries in exercise of a right under the · policy. Supra Section I.A. Even thou~ the PSA informed and altered Defendants' conduct, i Plaintiff cannot sustain a claim againstl Defendants on the basis of these agreements. I On balance, summary judgme~t in favor of Defendants on both Counts I and II is appropriate. I C. Count III: Misrepresentatiob and/or Omission I Defendants argue they should b:e granted summary judgment on Count Three of Plaintiffs Complaint. In Count ThreJ, Plaintiff alleges that Defendants "misled and i deceived" Plaintiff by representing that she was not entitled to payment of the proceeds in I I favor of Ashley and Sydnee and by misstating New Jersey law regarding emancipation ''with the intention that Plaintiff rely on this ~epresentation and not pursue a claim against 10 th~ There must be a contract between parties in order for a party to bring a breach of contract or breach of the implied covenant of good faith and fair dealing claim against the other. EnviroFinance Grp., LLC v. Envtl. Bar~ier Co., LLC, 113 A.3d 775, 787 (N.J. Super. 2015) ("To prevail on a breach of contract claim, a party must prove a valid contract between the parties, the opposing party's failure to perform a ddfined obligation under the contract, and the breach caused the claimant to sustain damages.p; Gallo v. PHH Mortg. Corp., 916 F. Supp. 2d 537, 550--51 (D.N.J. 2012) (party must show a valid contract to bring a claim for breach of the · implied covenant of good faith and fair oealing). 1 1 12 I I Defendants." (Compl. mf 46-47.) F1i111her, Plaintiff alleges that Defendants "intended that .the Plaintiff rely to her detriment on imisrepresentation and/or omissions as described above, and not pursue any claim against th~. Defendants." (Id. 148.) Defendants argue that Plaintiff . ! is unable to show any of the four elements of a negligent misrepresentation or omission claim. I (Defs.'Br.at17-18.) I I For her misrepresentation or OIJ;lission claim, Plaintiff would have to show at trial either the four elements of a negligent misreJresentation or omission claim or the additional element of malicious intent by Defendants for an i~tentional misrepresentation claim. Kaufman v. i-Stat Corp., 754 A.2d 1188, 1195 (N.J. 200~). Plaintiff would have to show at trial: (1) that I Defendants' statement was incorrect, (2) that it was negligently made, (3) that Plaintiff I justifiably relied upon it, and (4) that s~e suffered economic loss or injury as a consequence. . I Mason v. Coca-Cola Co., 774 F. Supp. l2d 699, 704 (D.N.J. 2011); Kaufnian, 754 A.2d at 1195. I The element of reliance is the same for ~oth fraudulent or intentional misrepresentation and I negligent misrepresentation claims. Ka,ufman, 754 A.2d at 1195. In this case, there is no allegatio~ that Plaintiff relied in any way upon Defendants' I , I statements about Ashley and Sydnee's emancipation or the appropriate party to receive the I I insurance proceeds. To the contrary, Plkintiff alleges throughout her Complaint and motion brief that she continuously contested J?efend~ts' position that Ashley and Sydnee were emancipated and the appropriate parties to receive thb insurance proceeds. (Compl. 1120, 23, 26-34; Pl. 's I SOF W38, 42; see also Pl.'s Br.;at 4"-8) Therefore, Plaintiff has failed to establish the existence 1 • . i of facts that could satisfy the third elem~nt of this claim, which she would have to show at trial; I the Court must grant summary judgmen~ against her on Count Three. Celotex, 477 U.S. at 322. I I I I I I I 13 D. Count IV: Negligence I Defendants argue they should l;>e granted summary judgment on Count Four of I Plaintiff's Complaint again based on the good faith provision, or in the alternative, Plaintiff's I . . I failure to show Defendants owed her 8i duty of care. In Count Four, Plaintiff alleges that Defendants owed Plaintiff "a duty of r~asonable care in investigating whether or not indeed the I children Ashley and Sydnee were in fapt emancipated under the P.S.A. on [sic] such other . I d,ocuments concerning their emancipatton that may exist, before making payment to the appropriate party'' anci "Defendants m¥e no proper investigation of the laws of New Jersey I pertaining to Ashley and Sydney's emancipation, or such investigation was negligently I performed." (Compl. W52-53.) \ I Applying the same principle discussed above pursuant to Defendants' satisfaction of the I policy under N.J.S.A. 17B:24-5, Defen~ants are absolved of liability resulting from post1 payment disputes, Vasconi, 590 A.2d at 1167, and are only bound to the terms of their own I . policies, Hirsch, 380 A.2d at 717. Plairltiff's negligence claim once again rests on Ashley and I Sydnee's emancipated status under the <;,VA. Plaintiff's negligence claim is both a post-payment I dispute and a claim based on contracts dther than Defendants' proprietary insurance policies. See supra Section J.B. It is undisputed ~at Defendants paid under their understanding of the I terms of the Judgment of Divorce and Pf A, based on evidence available to them at the time. (Defs.' SOP~ 14.) Because this paymeJt is presumed to be in good faith under New Jersey law, I supra Section I.A., Defendants are fully \discharged of obligation on this type of clai~. I Therefore, there is no issue of material fact for the Court to consider and summary judgment on Count IV will be granted. I i 14 I E. Count V: Consumer Fraud I Defendants seek summary judgment on Count Five, Plaintiffs claim of consumer fraud. I In order to have standing to bring a under the Consumer Fraud Act, the plaintiff must be a I i consumer of a good from the defendatj.t. See, e.g., Lieberson v. Johnson & Johnsoh Consumer i I Cos., Inc., 865 F. Supp. 2d 529, 537 (ID.N.J. 2011) (finding plaintiff lacked standing where she I did not purchase or use the complain~ of item herself because she could not establish an I individualized injury in fact). In this case, Plaintiff was not the consumer; the Decedent was the I I consumer through his policy with Delendant. Therefore, Plaintiff does not have standing to bring a claim against Defendants for ~olation of the Consumer Fraud Act and Defendants must I be granted summary judgment on thisl Count. II. I Plaintiff's Cross Motion for Summary Judgment I Plaintiff cross-moved for ~ary judgment on Count I, the Breach of Contract Claim. I For the reasons stated in section LB above, because N.J.S.A. 17B:24-5 applies, Defendants I cannot be liable on Plaintiffs claims, :and there is no issue of material fact for the Court to I consider. Therefore, Plaintiffs cross [motion must be denied. I I CONCLUSION I For the foregoing reasons, Defendants' Motion for Summary Judgment will be granted, and Plaintiff's Cross Motion for follow. Date: sumlary Judgment will be denied. A corresponding order will I or Ju//"~ 15

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