DEGENNARO v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA et al

Filing 27

OPINION. Signed by Judge Brian R. Martinotti on 6/22/2017. (seb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
:
:
Plaintiff,
:
v.
:
:
AMERICAN BANKERS INSURANCE
:
COMPANY OF FLORIDA;
:
GOVERNMENT EMPLOYEES
:
INSURANCE COMPANY; and
:
ASSURANT SPECIALTY PROPERTY, :
:
Defendants.
:
____________________________________:

ALFRED DEGENNARO,

Civil Action No. 3:16-cv-5274-BRM-DEA

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court are Defendants American Bankers Insurance Company of Florida and
Assurant Specialty Property’s (collectively, “ABIC”) Motion to Dismiss (ECF No. 20) 1 and
Government Employees Insurance Company’s (“GEICO”) (together with ABIC, “Defendants”)
Motion to Dismiss (ECF No. 21), both pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiff Alfred DeGennaro (“Plaintiff”) opposes the motions. (ECF Nos. 23-24.) Pursuant to
Federal Rule of Civil Procedure 78(b), the Court did not hear oral argument. For the reasons set
forth below, ABIC and GEICO’s Motions to Dismiss are GRANTED WITHOUT PREJUDICE.

1

American Bankers Insurance Company of Florida is an indirect wholly-owned subsidiary of
Assurant, Inc. (ECF No. 20-2 at 1 n.1.) Assurant Specialty Property is a brand name and service
mark of Assurant, Inc. and not a legal entity. (Id.) Plaintiff acknowledges it named the wrong
defendant and will amend the Complaint to add Assurant, Inc. (ECF No. 23 at 21.) Nonetheless,
at this time, the Court will refer to both entities as ABIC.

I.

BACKGROUND
For the purposes of these motions to dismiss, the Court accepts the factual allegations in

the Complaint as true and draws all inferences in the light most favorable to Plaintiff. See Phillips
v. Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). Further, the Court also considers any
“document integral to or explicitly relied upon in the complaint.” In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis in original).
Sometime in 2013, Plaintiff contacted GEICO, his automobile insurance carrier at the time,
to discuss obtaining a comprehensive personal liability coverage policy and a one million dollar
umbrella policy. (Compl. (ECF No. 1) ¶¶ 3, 5). “Plaintiff was told that in order to acquire the
comprehensive personal liability coverage with an umbrella policy he would have to acquire a
renter’s insurance policy with $10,000 contents and a minimum of $300,000 comprehensive
personal liability coverage.” (Id. ¶ 4.) He was further informed that “if he purchased the aforesaid
renters policy he would then qualify for a [one] million dollar umbrella coverage policy” and that
“it would cover his auto insurance as well as his renters insurance.” (Id. ¶¶ 5-6).
In January 2014, Plaintiff secured a renter’s policy issued by ABIC, policy number
2659730 (the “Renter’s Policy”), with an initial policy period from January 31, 2014, to January
31, 2015. (Id. ¶ 7.) As required by GEICO, the policy consisted of $300,000 personal liability
coverage per occurrence. (Id. ¶ 13.)
On January 21, 2014, Plaintiff received a letter from GEICO regarding his umbrella policy
and thanking him for choosing GEICO. (Id. ¶ 8.) Specifically, the letter stated:
After careful review of your policy we have determined that you
“may not” meet the required underlying liability limit of $300,000
for each property you own, rent or rent too [sic] own. If you are not
carrying the adequate limit, a gap of coverage could occur. In the
case of a loss you would be personally responsible for the difference

2

. . . . “Failure to meet may result in the cancellation of your umbrella
policy[.]”
(Id. and ECF No. 21-6 at 1.) The letter further indicated Plaintiff should “review his basic
homeowner’s policy for compliance and that failure to meet the required underlying limits may
result in the cancellation of his umbrella policy.” (ECF No. 1 ¶ 9.) It also requested that Plaintiff
“send a copy of [his] declaration page showing the required minimum limits.” (Id.) On January
30, 2014, Plaintiff allegedly received an email from [e-mail] “thanking him for
choosing ABIC for his rental needs and explaining that his coverage would become effective on
January 31, 2014 and included $10,000 personal property and $300,000 personal liability.” (Id. ¶
11.) On January 31, 2014, Plaintiff received an email from [e-mail] “stating they
were glad he chose Assurant and transmitting the full copy of his [R]enter’s [P]olicy along with
the [d]eclaration [p]age.” (Id. ¶ 12.) The declaration page accompanying the Renter’s Policy stated:
COVERAGE
PERSONAL PROPERTY
PERSONAL LIABILITY
MEDICAL PAYMENTS
LOSS OF USE

AMOUNT OF COVERAGE
$10,000 LESS DEDUCTIBLE OF
$300,000 PER OCCURRENCE
$500 PER PERSON
$2,000 PER OCCURRENCE

PREMIUM
$500

$90.00
$24.00
INCL
INCL

(Ex. B to Certif. of Joseph T. Kelleher (ECF No. 20-3) at 10; see ECF No. 1 ¶ 13.) On February 3,
2014, Plaintiff allegedly sent GEICO a fax, referencing the January 21, 2014 letter, transmitting
his Renter’s Policy, and a fax confirmation was received. (ECF No. 1 ¶¶ 19-20.) Plaintiff alleges
GEICO never responded to Plaintiff’s fax. (Id. ¶ 26.)
On February 26, 2014, ABIC alleges it sent Plaintiff an amended declaration page
reflecting that his personal liability was reduced to $100,000 per occurrence. (ABIC’s Br. (ECF
No. 20-2) at 6). Plaintiff alleges he never received the letter. (ECF No. 1 ¶ 54.) However, Plaintiff
admits he received another email from [e-mail] “stating they were glad he chose
Assurant and claiming that they were transmitting the renter’s insurance policy.” (Id. ¶ 21.) No

3

policy was attached to the email, but a revised declaration page was attached, indicating Plaintiff’s
personal liability was now $100,000 per occurrence. (Id.) Specifically, the declaration page
demonstrated:
COVERAGE
PERSONAL PROPERTY
PERSONAL LIABILITY
MEDICAL PAYMENTS
LOSS OF USE

AMOUNT OF COVERAGE
$10,000 LESS DEDUCTIBLE OF
$300,000 PER OCCURRENCE
$500 PER PERSON
$2,000 PER OCCURRENCE

PREMIUM
$500

$90.00
$24.00
INCL
INCL

(Ex. C to ECF No. 20-3.) The declaration page also reflected a change in premium from $116 to
$100, and provided Plaintiff a $16 credit. (ECF No. 1 ¶ 21.)
At the end of the policy term, sometime in November 2014, Plaintiff renewed the Renter’s
Policy for the period of January 31, 2015, to January 31, 2016. (Id. ¶ 30.) Like the amended
declaration page sent to Plaintiff in February 2014, the renewal declaration page reflected a
personal liability coverage of $100,000 per occurrence. (Id.) On January 12, 2015, Plaintiff also
received a confirmation email from Assurant listing “personal liability at $100,000 without the
‘per occurrence’ language.” (Id. ¶ 32.)
Plaintiff renewed his Renter’s Policy for a third policy term in December of 2015, for the
period of January 31, 2016, to January 31, 2017. (Id. ¶ 34.) The renewal declaration page reflected
a personal liability coverage of $100,000 per occurrence. (Id.) Plaintiff also received a
confirmation email from Assurant listing “personal liability at $100,000 without the ‘per
occurrence’ language.” (Id.) This time, Plaintiff alleges he reviewed the paperwork and noticed
“incongruities.” (Id. ¶ 35.) Plaintiff contacted one of the Defendants to question the coverage and
“was told that he had a $200,000 gap in coverage for which he would be personally liable.” 2 (Id.
¶ 36.) On January 19, 2016, ABIC allegedly sent Plaintiff an email stating:

2

Plaintiff does not articulate which Defendant he contacted and the record is unclear.
4

Sorry it took so long for me to get back with you. The $300,000.00
liability was added, back when you purchased the policy. After the
underwriters went over the questionnaire and a business was ran
[sic] on the premises the liability was canceled. At that time having
a business on the premises where you live would have disqualified
you from the liability of $300,000.00. That has since changed. You
were refunded 16.00 back on 2/24/14 and a new declaration page
was sent. When we last spoke I’ve increase [sic] the liability to
$300,000.00 and your new premium is 16.78.
I apologize for any inconvenience.
(Id. ¶ 37.)
On February 10, 2016, Plaintiff filed a complaint with the New Jersey Department of
Banking and Insurance (“NJDOBI”) “to address the reduction of his comprehensive personal
liability coverage [in his Renter’s Policy] from $300,000 to $100,000.” (Id. ¶ 45.) NJDOBI
investigated the matter. (Id.) As part of the investigation, ABIC submitted a letter to NJDOBI on
March 8, 2016 responding to Plaintiff’s complaint. (Id. ¶ 45-47.) The letter stated, in part:
[Plaintiff] purchased his Renters Insurance policy RIN
2659730 through our [GEICO] affiliate on January 30, 2014 with an
effective date of January 31, 2014. Once the policy is issued, a
policy package is sent to the insured. . . .
....
During the underwriting period, we determined that due to a
system issue [Plaintiff’s] policy was approved with $300,000
comprehensive personal liability. On February 24, 2014, based on
our underwriting guidelines at the time the policy was purchased,
[Plaintiff] did not qualify for the $300,000 limit because he
conducted business at the insured location. A letter was emailed to
[Plaintiff] at [e-mail] informing him that his
comprehensive personal liability coverage would be reduced from
$300,000 to $100,00 and an update declaration page would be issued
under separate cover . . . .
....
On January 13, 2016, [Plaintiff] contacted out [sic] customer
service department and inquired about the limit of his
5

comprehensive personal liability coverage on his Renters. He was
informed at that time that his limit was $100,000. [Plaintiff] was
asked the qualifying questions in order to increase his
comprehensive personal liability coverage to $300,000. The request
was approved, the increase was processed and confirmation was sent
to [Plaintiff.]
....
At this time, we will honor [Plaintiff’s] request to increase
the liability coverage to $300,000, back to the inception date of the
policy. This change will cause a change in premium from the
inception of $16 for the first term and a prorated amount for the
second term if he wishes to have the change processed.
(Ex. D to ECF No. 20-3.) After completing its investigation, the NJDOBI found:
This is written in response to your request for assistance with your
insurance concern.
The company has provided this Department with the requested
information regarding the matter you wished addressed. In response
to your inquiry, GEICO[3] Insurance records indicate you purchased
a Renters Insurance policy RIN 2659730 on January 30, 2014 with
an effective date of January 31, 2014. You were mailed a policy
package that includes a cover letter that state that it is for new
renter’s insurance protection, underwritten by [ABIC]. During the
underwriting period, records show GEICO determined that due to a
system error your policy was approved with $300,000
comprehensive personal liability. On February 24, 2014, based on
GEICO insurance underwriting guidelines at the time your policy
was purchased, you did not qualify for the $300,000 limit because
you conducted business at the insured location. A letter was emailed
to you at [e-mail] informing you that your
comprehensive personal liability coverage would be reduced from
$300,000 to $100,000 and an updated declaration page would be
issued under a separate cover. GEICO will be put on notice for this
error. At this time, due to the error made GEICO will honor your
request to increase the liability coverage to $300,000, back to the
inception date of the policy. This change will cause a change in
premium from the inception of $16 for the first term and a prorated
amount for the second term if you wish to have the change

3

Throughout the letter, NJDBOI mistakenly refers to GEICO instead of ABIC as the party who
issued the Renter’s Policy.
6

processed. After considering all the information available to us, it
appears that the matter has been favorably resolved.
In view of the information provided, unless advised to the contrary,
we will consider the matter resolved and close our file. Thank you
for contacting us.
(Ex. A to ECF No. 20-3 and ECF No. 1 at 64.) Plaintiff admits “Defendants corrected the gap in
coverage.” (ECF No. 1 ¶ 80.)
Instead of paying the additional premium to increase the per occurrence personal liability
limit of the Rental’s Policy, Plaintiff cancelled both his Renter’s Policy and umbrella policy. (Id.)
Notably, Plaintiff never made a claim under the Renter’s Policy or umbrella policy. (Id. ¶¶ 15253.)
Nonetheless, on August 30, 2016, Plaintiff filed a Complaint asserting fourteen counts: (1)
a New Jersey Consumer Fraud Act (“CFA”) violation against ABIC regarding the “changing
terms” of the Renter’s Policy (Count One); (2) a CFA strict liability claim against GEICO
regarding the “changing terms” of the Renter’s Policy (Count Two); (3) a CFA strict liability claim
against GEICO regarding the “changing terms” of the Renter’s Policy (Count Three); (4) a CFA
violation against ABIC regarding the “selling” of the Renter’s Policy (Count Four); (5) a deceitful
and unconscionable CFA violation against GEICO regarding the “selling” of the Renter’s Policy
(Count Five); (6) a CFA violation against GEICO regarding the “selling” of the Renter’s Policy
(Count Six); (7) a CFA violation against Defendants regarding the “selling” of the GEICO
umbrella and automobile insurance policies (Count Seven); (8) a tortious interference with
prospective economic advantage claim against Defendants (Count Eight); (9) a common law fraud
claim against Defendants (Count Nine); (10) an intentional breach of contract claim against
Defendants (Count Ten); (11) a breach of a fiduciary duty claim against Defendants (Count
Eleven); (12) a breach of contract claim against Defendants (Count Twelve); (13) a CFA strict
7

liability claim against Defendants regarding the “changing terms” of all insurance policies (Count
Thirteen); and (14) a CFA strict liability claim against Defendants regarding “changing terms” of
“issued policies” (Count Fourteen). (See id. ¶¶ 82-204.) Plaintiff seeks $172,800,000 in damages.
(Id. at 41.)
On November 10, 2016, in lieu of filing an answer, Defendants filed separate motions to
dismiss. (ECF Nos. 20-21.) Plaintiff opposes the motions. (ECF Nos. 23-24.) 4
II.

LEGAL STANDARD
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

district court is “required to accept as true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable to the [plaintiff].” Phillips, 515 F.3d at
228. “[A] complaint attacked by a . . . motion to dismiss does not need detailed factual allegations.”
Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the factual allegations in the
complaint are true, those “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is

4

Plaintiff’s briefs in opposition are nearly identical.
8

liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
requirement.’” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than ‘an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
While as a general rule, a court many not consider anything beyond the four corners of the
complaint on a motion to dismiss pursuant to 12(b)(6), the Third Circuit has held “a court may
consider certain narrowly defined types of material without converting the motion to dismiss [to
one for summary judgment pursuant under Rule 56].” In re Rockefeller Ctr. Props. Sec. Litig., 184
F.3d 280, 287 (3d Cir.1999). Specifically, courts may consider any “‘document integral to or
explicitly relied upon in the complaint . . . .” In re Burlington Coat Factory Sec. Litig., 114 F.3d
at 1426 (emphasis in original).
Additionally, fraud based claims are subject to a heightened pleading standard, requiring a
plaintiff to “state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ.
P. 9(b). The level of particularity required is sufficient details to put the defendant on notice of the
“precise misconduct with which [it is] charged.” Frederico v. Home Depot, 507 F.3d 188, 200 (3d
Cir. 2007) (citation omitted). At a minimum, Rule 9(b) requires a plaintiff to allege the “essential

9

factual background that would accompany the first paragraph of any newspaper story—that is, the
‘who, what, when, where and how’ of the events at issue.” In re Suprema Specialties, Inc. Sec.
Litig., 438 F.3d 256, 276-77 (3d Cir. 2006) (citation omitted). The heightened pleading standard
set forth in Rule 9(b) applies to Plaintiff’s CFA and common law fraud claims. Dewey v.
Volkswagen AG, 558 F. Supp. 2d 505, 524 (D.N.J. 2008) (applying Rule 9(b) to CFA and common
law fraud claims).
III.

DECISION
A. CFA (Counts One, Two, Three, Four, Five, Six, Seven, Thirteen, and Fourteen)
Nine of the fourteen counts in Plaintiff’s Complaint are claims against Defendants for

violations of the CFA. Counts One and Four are CFA violations against ABIC; Counts Two, Three,
Five, and Six are CFA violations against GEICO, and Counts Seven, Thirteen, and Fourteen are
CFA violations against all Defendants. (See ECF No. 1 ¶¶ 82-204.) Defendants argue none of these
counts state a claim against Defendants under the CFA. (ECF No. 20-2 at 15 and GEICO’s Br.
(ECF No. 21-1) at 19.) Specifically, ABIC argues Plaintiff “fails to plead any facts demonstrating
that any of Defendants engaged in any affirmative act or intentional omission that constitutes an
unconscionable or deceptive practice or that they violated any regulation enacted under the CFA.”
(ECF No. 20-2 at 16.) It further argues Plaintiff did not ascertain a loss. (Id. at 20-23.) GEICO
argues the Complaint fails to allege any “unlawful practice” performed by GEICO. (ECF No. 211 at 20.) GEICO further argues Plaintiff did not ascertain a loss as a result of an unlawful practice.
(Id. at 29.) Plaintiff argues he has sufficiently pled CFA causes of action. Specifically, he argues
he sustained an ascertainable loss because he was exposed to “peril.” (ECF No. 23 at 4-17 and
ECF No. 24 at 4-17.)
The CFA states, in pertinent part:

10

The act, use or employment by any person of 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, is
declared to be an unlawful practice; . . . .
N.J.S.A. § 56:8-2. Courts have interpreted this section to require the following three elements to
state a cause of action under the CFA: “1) unlawful conduct by defendant; 2) an ascertainable loss
by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss.”
Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009) (citing Int’l Union of Operating Eng’rs
Local No. 68 Welfare Fund v. Merck & Co., Inc., 192 N.J. 372, 389 (2007)).
An “unlawful practice” is defined as:
The act, use or employment by any person of 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. “The [CFA] creates three categories of unlawful practices: affirmative acts,
knowing omissions, and violations of state regulations.” Maniscalco v. Brother Int’l Corp. (USA),
627 F. Supp. 2d 494, 499 (D.N.J. 2009) (quoting Vukovich v. Haifa, No. 03-737, 2007 WL 655597,
*9 (D.N.J. Feb 27, 2007) (citing Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 (1994))). Affirmative
acts require no showing of intent on behalf of the defendant. See Cox, 138 N.J. at 17; Fenwick v.
Kay Am. Jeep, Inc., 72 N.J. 372, 378 (1977). “Thus, a defendant who makes an affirmative
misrepresentation is liable even in the absence of knowledge of the falsity of the misrepresentation,

11

negligence or the intent to deceive.” Vukovich, 2007 WL 655597, at *9 (citation omitted). “In
contrast, when the alleged consumer fraud consists of an omission, a plaintiff must show that the
defendant acted with knowledge, thereby making intent an essential element of the fraud.” Id.
“The third category of unlawful acts consists of violations of specific regulations
promulgated under the [CFA].” Cox, 138 N.J. at 18-19. “In those instances, intent is not an element
of the unlawful practice, and the regulations impose strict liability for such violations.” Id. (citation
omitted). Unlawful acts expressly regulated by other statutes, regulations, or rules not promulgated
under the CFA can give rise to a CFA claim. See Henderson v. Hertz Corp., No. L-6937-03, 2005
WL 4127090, at *5 (N.J. Super. Ct. App. Div. June 22, 2006); Lemelledo v. Beneficial Mgmt.
Corp. of Am., 150 N.J. 255, 266-73 (1997). However, the CFA does not create strict liability for
violations of other statutes, regulations, or rules not promulgated under the CFA. See Henderson,
2005 WL 4127090, at *5.
An “ascertainable loss” is one that is “quantifiable or measurable.” Thiedemann v.
Mercedes-Benz USA, LLC, 183 N.J. 234, 248. (2005). A “plaintiff must suffer a definite, certain
and measurable loss, rather than one that is merely theoretical.” Bosland, 197 N.J. at 558. However,
New Jersey courts have found that “if the defendant or a non-party takes action to ensure that
plaintiff sustains no out-of-pocket loss or loss of value prior to litigation, then plaintiff’s CFA
claim may fail.” D’Agostino v. Maldonado, 216 N.J. 168, 194 (2013); see Thiedemann, 183 N.J.
at 251-52 (finding no ascertainable loss when defendant repaired defect in accordance with terms
of warranty); Meshinsky v. Nichols Yach Sales, Inc., 110 N.J. 464, 468, 475 (1988) (finding no
ascertainable loss because defendant repaid bank loan). In Thiedemann, the court dismissed CFA
claims against the manufacturer of an automobile, who sold automobiles with defective fuel
gauges, for lack of an ascertainable loss. Thiedemann, 183 N.J. at 251. When the gauge defect was

12

discovered, the manufacturer repaired the issues at no cost to the consumer, pursuant to the
warranty of sale. Id. at 241-42. While the plaintiffs experienced difficulties with stalled engines
and depleted gas tanks before the repairs, and were concerned about potential negative perceptions
about their vehicles on future resale, they presented no out-of-pocket expenses or other
“objectively verifiable damages” arising out of the circumstances. Id. at 242.
Courts support alleged damages based on an out-of-pocket theory or a benefit of the
bargain theory. See Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84, 99-103 (D.N.J.2011);
Thiedemann, 183 N.J. at 248. “An out-of-pocket-loss theory will suffice only if the product
received was essentially worthless.” Mladenov v. Wegmans Food Mkts., Inc., 124 F. Supp. 3d 360,
374 (D.N.J. 2015). “A benefit-of-the-bargain theory requires that the consumer be misled into
buying a product that is ultimately worth less than the product that was promised.” Id. (citation
omitted).
Additionally, plaintiffs must set forth allegations sufficient to show those losses are
causally connected to defendant’s alleged conduct. Bosland, 197 N.J. at 557. It is not sufficient to
make conclusory or broad-brush allegations regarding defendant’s conduct; plaintiff must
specifically plead those facts. Torres-Hernandez, No. 3:08-CV-1057-FLW, 2008 WL 5381227, at
*7 (D.N.J. Dec. 17, 2008). This requires, for example, pleading when and to whom the alleged
fraudulent statements were made. See Dewey, 558 F. Supp. 2d at 527.
The Court finds Plaintiff has failed to plead any facts demonstrating Defendants engaged
in an unlawful conduct in violation of the CFA. Plaintiff’s Complaint alleges nine counts of CFA
violations against Defendants. All counts relate to the same fact pattern, the “selling” and
“changing terms” of the Renter’s Policy, but fall in all three categories of unlawful practices. (See
ECF No. 1 ¶¶ 82-204.) He alleges Defendants affirmatively changed his policy terms with intent

13

to deceit him, omitted to tell him about the change in the terms, and that Defendants violated state
regulations. (Id.) Accordingly, the Court evaluates each of the claims and finds Plaintiff fails to
state a claim for each.
As to ABIC, Plaintiff alleges ABIC’s “violated the applicable regulations and/or laws
regarding notice, changing terms and/or cancellation of the aforesaid two renter’s polices” and
“violation of said applicable laws and/or regulations constitutes strict liability” under the CFA. (Id.
¶ 87-88, 192-93, 200-02 (Counts One, Thirteen, and Fourteen).) Specifically, he alleges ABIC
failed to comply with the New Jersey Administrative Code, section 11:1-20.2, governing notices
of renewal, cancelation, and non-renewal of commercial and homeowner’s insurance policies. (Id.
¶ 62.) Plaintiff further argues reduction of the personal liability coverage in February 2014 was
“surreptitious[], improper[], knowing[], deceitful[], illegal, and malicious[] . . . with the intent of
leaving Plaintiff without knowledge of a gap of $200,000 in each policy for each of the two years
for which he was personally liable.” (Id. ¶¶ 112, 137 (Counts Four and Seven).)
Plaintiff offers no factual allegations to support his bare conclusions that ABIC acted
deceitfully either through an affirmative act or through an omission. Indeed, the Complaint reflects
the opposite. Although Plaintiff initially sought and secured a Renter’s Policy consisting of
$300,000 personal liability coverage per occurrence in January 2014, id. ¶ 13, and ABIC changed
that policy a month later, Plaintiff has failed to prove the affirmative act of changing the policy
was deceitful or that ABIC omitted to tell Plaintiff of the change in terms.
On February 26, 2014, ABIC alleges it sent Plaintiff an amended declaration page
reflecting that his personal liability was reduced to $100,000 per occurrence. (ECF No. 20-2 at 6).
Plaintiff alleges he never received the letter; and for the purposes of this motion the Court accepts
that statement as true. (ECF No. 1 ¶ 54.) Nevertheless, Plaintiff admits he received an email from

14

[e-mail] attaching a revised declaration page, indicating Plaintiff’s personal
liability was reduced to $100,000 per occurrence. (Id. ¶ 21.) The declaration page reflected a
change in premium from $116 to $100, and provided Plaintiff with a $16 credit. (Id.) Further,
toward the end of the first policy term, sometime in November 2014, Plaintiff renewed the Renter’s
Policy for the period of January 31, 2015 to January 31, 2016. (Id. ¶ 30.) Like the amended
declaration page sent to Plaintiff in February 2014, the renewal declaration page reflected a
personal liability coverage of $100,000 per occurrence, not $300,000. (Id.) On January 12, 2015,
Plaintiff also received a confirmation email from Assurant listing “personal liability at $100,000
without the ‘per occurrence’ language.” (Id. ¶ 32.) Finally, sometime in December 2015, Plaintiff
renewed his policy for a third policy term from January 31, 2016 to January 31, 2017. (Id. ¶ 34.)
Similarly, the renewal declaration page reflected a personal liability coverage of $100,000 per
occurrence. (Id.) Plaintiff also received a confirmation email from Assurant listing “personal
liability at $100,000 without the ‘per occurrence’ language.” (Id.)
Contrary to Plaintiff’s allegations that Defendants acted deceitfully “with the intent of
leaving Plaintiff without knowledge of a gap of $200,000 in each policy for each of the two years,”
the Complaint demonstrates otherwise. Plaintiff was clearly put on notice that his personal liability
coverage was reduced. (Id. ¶ 21 and Ex. C to ECF No. 20-3.) Plaintiff’s argument the February
2014 email from [e-mail], attaching a revised declaration page and indicating
Plaintiff’s personal liability was reduced to $100,000 per occurrence, was “extremely misleading”
because Plaintiff had just obtained the $300,000 per occurrence policy a month before is
unpersuasive. (ECF No. 1 ¶ 23.) The declaration page attached to the email clearly and
unambiguously put him on notice of a policy change and explicitly reflected personal liability at

15

$100,000 per occurrence. Lastly, the fact that Plaintiff did not acknowledge the correspondences
sent by ABIC until his third renewal is of no effect.
This Court also finds Plaintiff has not pled ABIC acted unlawfully pursuant to the CFA by
violating state regulations. Plaintiff argues ABIC should be strictly liable pursuant to the CFA
because it violated New Jersey Administrative Code, Section 11:1-20.2. (Id. ¶ 62.) New Jersey
Administrative Code, Section 11:1-20.2 states in pertinent part:
(a) No policy shall be nonrenewed upon its expiration date unless a
valid written notice of nonrenewal has been mailed or delivered to
the insured in accordance with the provisions of this subchapter. For
the purpose of this subchapter, policies not having a fixed expiration
date shall be deemed to expire annually on the anniversary of their
inception.
....
(d) No cancellation, other than a cancellation based upon
nonpayment of premium or for moral hazard as defined in (f) below,
shall be valid unless notice is mailed or delivered by the insurer to
the insured, and to any person entitled to notice under the policy, not
more than 120 days nor less than 30 days prior to the effective date
of such cancellation except, however, that failure to send such notice
to any designated mortgagee or loss payee shall invalidate the
cancellation only as to the mortgagee's or loss payee's interest.
(e) A policy shall not be cancelled for nonpayment of
premium unless the insurer, at least 10 days prior to the effective
cancellation date, has mailed or delivered to the insured notice as
required in this subchapter of the amount of premium due and the
due date. The notice shall clearly state the effect of nonpayment by
the due date. No cancellation for nonpayment of premium shall be
effective if payment of the amount due is made prior to the effective
date set forth in the notice.
(f) A policy shall not be cancelled for moral hazard unless
the insurer, at least 10 days prior to the effective termination date,
has mailed or delivered to the insured notice as required in this
subchapter and the basis for termination conforms to the []
definitions of moral hazard
....
(g) No nonrenewal or cancellation shall be valid unless the
notice contains the standard or reason upon which the termination is
premised and specifies in detail the factual basis upon which the
insurer relies.
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(h) All notices of nonrenewal and cancellation, except those
for nonpayment of premium, must contain a statement which shall
be clearly and prominently set out in boldface type or other manner
which draws the reader's attention advising the insured that the
insured may file a written complaint about the cancellation or
nonrenewal with the New Jersey Department of Banking and
Insurance, Division of Enforcement and Consumer Protection, PO
Box 325, Trenton, New Jersey 08625–0325. The statement also
shall advise the insured to contact the Department of Banking and
Insurance immediately, in the event he or she wishes to file a
complaint.
(i) No nonrenewal or cancellation shall be valid unless notice
thereof is sent;
1. By certified mail; or
2. By first class mail, if at the time of mailing the insurer has
obtained from the Post Office Department a date stamped proof of
mailing showing the name and address of the insured, and the
insurer has retained a duplicate copy of the mailed notice.
....
(m) Each notice of renewal or nonrenewal by an insurer
authorized to transact medical malpractice liability insurance in this
State for a medical malpractice liability policy shall comply with the
requirements applicable to such notices set forth in (a) through (l)
above, except that such notices shall be mailed or delivered by the
insurer to the insured not less than 60 days prior to the expiration of
the policy.
N.J.A.C. 11:1-20.2. First, this regulation deals exclusively with the cancellation or non-renewal of
policies. Here, it is uncontested that the Renter’s Policy was renewed three times. Further, at no
time did ABIC cancel or fail to renew the Renter’s Policy. Because this regulation does not discuss
the changing of policy terms, the Court finds Plaintiff has not sufficiently pled ABIC violated New
Jersey Administrative Code, Section 11:1-20.2.
Further, the CFA only allows for strict liability when a defendant violates “specific
regulations promulgated under the [CFA].” Cox, 138 N.J. at 18-19. Unlawful acts expressly
regulated by other statutes, regulations, or rules can give rise to a CFA claim, but do not impose
strict liability. See Henderson, 2005 WL 4127090, at *5; Lemelledo, 150 N.J. at 266-73.

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Plaintiff’s CFA claims against GEICO fail for similar reasons. As to GEICO, Plaintiff
alleges GEICO
knew of and cooperated with [] ABIC in the violation of applicable
regulations and/or laws concerning notice, changing terms, and/or
cancellation of two renter’s policies causing the $200,000 gap
between the renters policies and the umbrella polices each of the two
years.
(ECF No. 1 ¶ 97 and see ¶¶ 192-94 (Counts Two and Thirteen).) He further alleges, in the
alternative, that
even if [GEICO] was unaware that [] ABIC . . . violated the
applicable regulations and/or laws regarding notice, changing terms
and/or and cancellation of the two renter’s policy, due to [GEICO]
requiring the Plaintiff to purchase the policies through [] ABIC and
the strategic partnership between these [] Defendants, [GEICO] is
also strictly liable under the CFA for the violation of the two renter’s
policies.
(Id. ¶ 103 and see ¶¶ 201-02 (Counts Three and Fourteen).) Further, he argues GEICO
knew of and cooperated with [] ABIC [] in surreptitiously,
improperly, purposefully, knowingly, deceitfully, maliciously, and
illegally changing the terms of the renter’s policies by decreasing
the $300,000 in liability coverage to $100,000, with the intent of
leaving the Plaintiff without knowledge of a gap of $200,000 in each
policy for each of the two years for which he was personally liable.
(Id. ¶ 124 and see ¶ 137 (Counts Five and Seven).) Even if GEICO
did not cooperate and was not aware that [] ABIC . . . were
surreptitiously, improperly, knowingly, deceitfully, maliciously and
illegally changing the terms of the renter’s policy, because [GEICO]
required that Plaintiff acquire his underlying coverage from []
ABIC, and due to its relationship with [ABIC], [GEICO] is also
liable under the CFA for each of the violations regarding each of the
policies for each of the two years.
(Id. ¶ 129 (Count Six).) Since Plaintiff alleges GEICO cooperated with ABIC to violate regulations
and deceit him in selling and changing the terms of the Renter’s Policy, all claims against GEICO
rely on whether or not ABIC’s conduct was unlawful under the CFA. Because the Court finds
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Plaintiff’s allegations as to ABIC’s unlawful conduct fail to meet both the CFA and Federal Rule
of Civil Procedure 9(b)’s requirement, Plaintiff’s allegations as to GEICO also fail.
Even if the Court found Plaintiff’s facts were pled with sufficient particularity to
demonstrate Defendants acted unlawfully in violation of the CFA, it finds Plaintiff has failed to
plead an “ascertainable loss.” An “ascertainable loss” is one that is “quantifiable or measurable,”
Thiedemann, 183 N.J. at 248, and “definite, certain and measurable [], rather than one that is
merely theoretical.” Bosland, 197 N.J. at 558. Here, Plaintiff admits he never made a claim under
the renter’s or umbrella policy, was never denied coverage, or forced to cover any gap in coverage.
(Id. ¶¶ 152-53.) Instead, he argues he sustained an “ascertainable loss” because he was exposed to
“peril” due to the reduction of the liability limits of the ABIC Renter’s Policy (ECF No. 23 at 417 and ECF No. 24 at 4-17.) His exposure to peril is not “quantifiable or measurable” pursuant to
the CFA.
Even if the gap in coverage constituted an ascertainable loss, which the Court finds it does
not, New Jersey courts have found that “if the defendant or a non-party takes action to ensure the
plaintiff sustains no out-of-pocket loss or loss of value prior to litigation, then plaintiff's CFA claim
may fail.” D’Agostino, 216 N.J. at 194; see Thiedemann, 183 N.J. at 251-52 (finding no
ascertainable loss when defendant repaired defect in accordance with terms of warranty);
Meshinsky, 110 N.J. at 468 (finding no ascertainable loss because defendant repaid bank loan).
Here, Plaintiff admits “Defendants corrected the gap in coverage.” (ECF No. 1 ¶ 80.) In fact, ABIC
agreed to increase the liability coverage to $300,000 per occurrence “back to the inception date of
the policy” so long as Plaintiff paid the $16 premium. (Ex. D to ECF No. 20-3.) Further, the
Renter’s Policy
is an “occurrence”-based policy, which applies so long as the
“occurrence” at issue takes place during the period in which the
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policy is in effect, regardless of whether the claim against the
insured as a result of the “occurrence” is made after the policy ends.
Thus, if in the future, a claim is made against Plaintiff based on an
“occurrence” that took place when the ABIC policy was in place,
ABIC would owe coverage for that claim, and so long as [Plaintiff]
pays the additional premium, the ABIC policy would provide
liability coverage up to $300,000 per “occurrence”.
(GEICO Reply Br. (ECF No. 25) at 7 n.3.) Because ABIC agreed to correct the gap in coverage
back to the inception date of the policy prior to litigation, Plaintiff has not suffered an ascertainable
loss. Plaintiff’s cancellation of the policy, instead of accepting ABIC’s offer is of no consequence.
Accordingly, the Court finds the above allegations fail to meet both the CFA and Federal Rule of
Civil Procedure 9(b)’s particularity requirement and GRANTS ABIC and GEICO’s Motions to
Dismiss all CFA claims (Counts One, Two, Three, Four, Five, Six, Seven, Thirteen, and Fourteen)
WITHOUT PREJUDICE.
B. Common Law Fraud (Count Nine)
Count Nine of Plaintiff’s Complaint alleges a claim against Defendants for “fraudulent sale
of automobile, umbrella and renters insurance.” (ECF No. 1 ¶¶ 157-67.) Specifically, Plaintiff
alleges
163) Though the [GEICO] auto insurance policy still carried
the umbrella coverage, the coverage was still flawed because to
carry the auto insurance, the Plaintiff was forced to unknowingly
carry $200,000 exposure of personal liability on the
renters/umbrella side of his coverage during each of the two years
rendering the automobile polices and umbrella policies deficient.
164) In fact, these automobile, umbrella and renters policies
were deceitfully sold because Defendants . . . were surreptitiously,
purposefully, knowingly, deceitfully, and maliciously creating a
$200,000 gap in liability coverage between the renters policy and
umbrella policy per year for the two years.
165) Defendants represented that they were providing
Plaintiff proper, apt, and suitable insurance coverage to induce him
to purchase the policies.
166) Plaintiff relied on the representation when he purchased
the policies to his detriment.
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(Id. ¶¶ 163-66.) ABIC argues Plaintiff fails to allege a “misrepresentation of fact” “creating or
hiding th[e $200,000] gap.” (ECF No. 20-2 at 23-24). GEICO argues Plaintiff “fails to identify the
specific misrepresentations made by GEICO, the date, time, or place the representations were
made, or who made them.” (ECF No. 21-1 at 36-37.) GEICO further alleges Count Nine “does not
explain how Plaintiff relied on the representations by GEICO and how that reliance caused
Plaintiff to sustain damages.” (Id.)
To state a claim for fraud under New Jersey law, a plaintiff must allege “(1) [the defendant
made] a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by
the defendant of its falsity; (3) [the defendant had] an intention that the other person rely on it; (4)
reasonable reliance thereon by the other person; and (5) resulting damages.” Triffin v. Automatic
Data Processing, Inc., 394 N.J. Super. 237, 246 (App. Div. 2007) (citing Gennari v. Weichert Co.
Realtors, 148 N.J. 582, 610 (1997)).
Plaintiff makes only a conclusory allegation that Defendants committed fraud in selling
and changing the terms of the policy, without alleging any specific facts regarding the elements of
this fraud claim. Plaintiff pleads no facts demonstrating Defendants misrepresented any facts; that
Defendants knew the representation was false; or that Plaintiff was injured as a result. Although
Plaintiff initially sought and secured a Renter’s Policy consisting of $300,000 personal liability
coverage per occurrence in January 2014 (ECF No.1 ¶ 13) and ABIC changed that policy a month
later, Plaintiff has failed to prove ABIC or GEICO misrepresented any facts. Plaintiff was clearly
put on notice that his personal liability coverage was reduced. (Id. ¶ 21 and Ex. C to ECF No. 203.) The declaration page attached to ABIC’s February 2014 email clearly put him on notice of a
policy change and unambiguously reflected personal liability at $100,000 per occurrence. (Id.)
Even if the Court accepts Plaintiff’s argument that ABIC originally misrepresented the Renter’s
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Policy would cover $300,000 per occurrence, Plaintiff has failed to allege facts demonstrating
ABIC or GEICO knew the representation was false. Lastly, Plaintiff has failed to plead he suffered
damages as a result of the $200,000 gap. Here, Plaintiff admits he never made a claim under the
renter’s or umbrella policy, was never denied coverage, or forced to cover any gap in coverage.
(ECF No. 1 ¶¶ 152-53.) As such, Plaintiff has failed to state a claim against Defendants for fraud,
particularly under the heightened pleading standard of Rule 9(b). Accordingly, Defendants’
Motions to Dismiss Plaintiff’s common law fraud claim (Count Nine) are GRANTED
WITHOUT PREJUDICE.
C. Tortious Interference With Prospective Economic Advantage (Count Eight)
Count Eight of Plaintiff’s Complaint alleges “[d]ue to [] Defendants [sic] surreptitious,
knowing, deceitful, malicious and illegal conduct, Plaintiff did not exercise his right to purchase
suitable insurance policies (automobile, renters, and umbrella) from other companies for a two
year period which would have provided him the proper protection.” (ECF No. 1 ¶ 152.) ABIC
argues Plaintiff’s claim “fails because it offers only conclusory allegations that lack any of the
specificity required to adequately plead [a tortious inference] claim.” (ECF No. 20-2 at 25.)
Specifically, Plaintiff’s Complaint “does not identify any alternative insurance carrier with whom
[Plaintiff] had a prospective relationship, nor does it allege any action [Plaintiff] took in pursuit of
a relationship with an alternative insurance carrier.” (Id. at 26.) GEICO contends Plaintiff’s
Complaint does not plead any of the elements required of a tortious interference claim. (ECF No.
21-1 at 35.) Specifically, GEICO argues the Complaint “fails to allege that Plaintiff made any
effort to purchase insurance from other insurers, that he would have been able to purchase the
insurance had he made these efforts, or that GEICO was aware that Plaintiff was attempting to

22

obtain this other insurance and that it intentionally interfered with Plaintiff’s attempt to purchase
the insurance and did so maliciously.” (Id.) The Court agrees with Defendants.
To state a claim for tortious interference with prospective economic advantage, a plaintiff
must allege
a plaintiff’s reasonable expectation of economic benefit or
advantage, (2) the defendant’s knowledge of that expectancy,
(3) the defendant's wrongful, intentional interference with that
expectancy, (4) in the absence of interference, the reasonable
probability that the plaintiff would have received the anticipated
economic benefit, and (5) damages resulting from the
defendant’s interference.
Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 186 (3d Cir. 1992) (citing Printing Mart–
Morristown v. Sharp Elec. Corp., 116 N.J. 739, 751 (1989)). “A complaint must demonstrate that
a plaintiff was in ‘pursuit’ of business” and “that the interference was done intentionally and with
‘malice.’” Printing Mart–Morristown, 116 N.J. at 751. “Even at the pleading stage, a plaintiff may
not rest a claim . . . on a mere hope that additional contracts or customers would have been
forthcoming . . . . The complaint must allege facts that . . . would give rise to a reasonable
probability that particular anticipated contracts would have been entered into.” Novartis Pharm.
Corp. v. Bausch & Lomb, Inc., No. 07-5945 (JAG), 2008 WL 4911868, at *7 (D.N.J. Nov. 13,
2008) (quoting Advanced Power Sys., Inc. v. Hi-Tech Sys., Inc., 801 F. Supp. 1450, 1459 (E.D. Pa.
1992)).
Here, Plaintiff fails to articulate what particular economic advantage or contract he lost
as a result of Defendants alleged interference. Plaintiff does not identify one insurance carrier,
company, or other entity, with whom he currently does business, or would have done business
with but for Defendants alleged interference. Further, Plaintiff’s Complaint does not allege any
specific contract or economic advantage lost by virtue of Defendants alleged interference. Plaintiff

23

must plead an injury that is more concrete than his “right to purchase suitable insurance policies”
from unknown or hypothetical insurance carriers. Accordingly, Defendants’ Motions to Dismiss
Plaintiff’s tortious interference with prospective economic advantage claim (Count Eight) are
GRANTED WITHOUT PREJUDICE.
D. Breach of Fiduciary Duty (Count Eleven)
Count Eleven of Plaintiff’s Complaint alleges “Defendants owed Plaintiff a fiduciary duty
because they were insuring him” and that Defendants breached that duty “surreptitiously,
purposefully, knowingly, deceitfully, and maliciously creating a $200,000 gap in liability coverage
between the renters policy and umbrella policy per year for the [] two years . . . thereby
intentionally breaching their fiduciary obligations under each of the eight (8) contracts of
insurance.” (ECF No. 1 ¶¶ 178-79.) ABIC argues Plaintiff’s “claim for breach of a fiduciary duty
(Count Eleven) fails because [Plaintiff] has not alleged facts sufficient to demonstrate the existence
of a fiduciary duty.” (ECF No. 20-2 at 29.) GEICO argues Plaintiff has failed to allege “special
circumstances” giving rise to a fiduciary duty. (ECF No. 21-1 at 39.)
Under New Jersey law, an insurer owes its insured a fiduciary duty only under certain
circumstances. Polito v. Cont’l Cos. Co., 689 F.2d 457, 462 (3d Cir. 1982). The New Jersey
Supreme Court has found an insurer acting as an agent to the insured when settling claims owes a
fiduciary duty. See Lieberman v. Emp’rs Ins. of Wausau, 84 N.J. 325, 336 (2007). “[A]n insurance
company owes a duty of good faith to its insured in processing a first-party claim.” Pickett v.
Lloyd’s, 131 N.J. 457, 467 (1993). Thus, absent “special circumstances” a claim for fiduciary duty
cannot survive. Reddick v. Allstate N.J. Ins. Co., No. 11-365 (KSH), 2011 WL 6339688, at *7
(D.N.J. Dec. 16, 2011) (citations omitted) (“[A]bsent a special relationship, parties operating in

24

the normal contractual posture, not as principal and agent, are typically not in a fiduciary
relationship.”).
Here, the Complaint does not allege anything to suggest the relationship between Plaintiff
and Defendants exceeds an ordinary contractual relationship. Plaintiff’s basis for finding a
fiduciary relationship is essentially that he was insured by the Defendants. (ECF No. 1 ¶ 178.)
Indeed, neither Plaintiff nor a third-party has made a claim under the renter’s or umbrella policy.
(Id. ¶¶ 152-53.) Therefore, Plaintiff and Defendants never had the occasion to enter into a fiduciary
relationship. Further, as to GEICO, Plaintiff’s Complaint takes issue with the Renter’s Policy, the
policy that caused the $200,000 gap, and it is uncontested GEICO did not issue that policy.
Therefore, GEICO could not have breached a fiduciary duty. As such, Defendants’ Motions to
Dismiss Plaintiff’s breach of fiduciary duty claim (Count Eleven) are GRANTED WITHOUT
PREJUDICE.
E. Breach of Contract (Counts Ten and Twelve)
Count Ten of Plaintiff’s Complaint is for “intentional breach of contract.” (ECF No. 1 at
57.) Defendants argue New Jersey law does not recognize a separate cause of action for
“intentional” breach of contract. (ECF No. 20-2 at 32 n.20 and ECF No. 21-1 at 37.) Because
Plaintiff concedes there is no cause of action for intentional breach of contract in New Jersey, this
Court GRANTS Defendants’ Motions to Dismiss Count Ten. (ECF No. 23 at 28 and ECF No. 24
at 28-29 (“Plaintiff concedes that in New Jersey law there is no action for intentional breach of
contract.”).)
Count Twelve of Plaintiff’s Complaint is for breach of contract as to all Defendants. (ECF
No. 1 at 59-60.) Specifically, Plaintiff alleges:
182) Defendants . . . created a $200,000 gap in liability
coverage between the renters policy and umbrella policy per year
25

for the two years thereby breaching their obligations under the
contract.
183) Though the [GEICO] auto insurance policy still carried
the umbrella coverage, the coverage of the auto and umbrella
policies were still flawed because to carry the auto insurance, []
Plaintiff was forced to unknowingly carry $200,000 exposure of
personal liability due to a $200,000 gap in the liability coverage on
the renters/umbrella side of his coverage for each of the two years
rendering the automobile policies and umbrella policies deficient.
184) In providing deficient and unsuitable insurance policies
because of the $200,000 gap in coverage for the two successive
years of January 2014-15 and January 2015-2016, the Defendants
committed breach of the eight contracts of insurance (4 automobile,
2 renters and 2 umbrella).
185) Plaintiff paid full premiums for the eight policies with
deficient coverage and also was exposed to risk.
(ECF No. 1 ¶¶ 182-85.) ABIC argues Plaintiff fails to allege the gap in coverage was a breach of
any term of his insurance policies and Plaintiff fails to plead any damages arising from any alleged
breach of the insurance contracts. (ECF No. 20-2 at 32-33.) GEICO argues “since GEICO was not
a party to the ABIC Renters policy, Plaintiff may not maintain a cause of action against GEICO
for breach of the policy.” (ECF No. 21-1 at 37.) “Nor may Plaintiff maintain a breach of contract
claim against GEICO Auto policies or under the GEICO Umbrella policies, since Plaintiff does
not allege that GEICO breached any terms or conditions to these policies.” (Id. at 38.)
“A party alleging a breach of contract satisfies its pleading requirement if it alleges (1) a
contract; (2) a breach of that contract; (3) damages flowing therefrom; and (4) that the party
performed its own contractual duties.” Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 210
F. Supp. 2d 552, 561 (D.N.J. 2002) (citations omitted). Because this Court previously found
Plaintiff has failed to plead damages from the $200,000 gap in coverage, it GRANTS Defendants’
Motions to Dismiss Count Twelve WITHOUT PREJUDICE, and need not address the remaining
breach of contract elements.
IV. CONCLUSION
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For the reasons set forth above, Defendants’ Motions to Dismiss are GRANTED
WITHOUT PREJUDICE.

Date: June 22, 2017

/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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