SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4604-18T2

TONY PING YEW,

Plaintiff-Appellant,

v.

INSERVCO INSURANCE

SERVICES, INC.,

Defendant-Respondent.

__________________________

Submitted May 11, 2020 – Decided June 22, 2020

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-5407-18.

Tony Ping Yew, appellant pro se.

Margolis Edelstein, attorneys for respondent (Emery J. 

Mishky and Stephanie Yoon-Sun Cho, on the brief).

PER CURIAM

Tony Ping Yew appeals from an order dismissing with prejudice his 

complaint that Inservco Insurance Services, Inc., the third-party claims 

NOT FOR PUBLICATION WITHOUT THE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.
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administrator for Robert Wood Johnson University Hospital (RWJUH), failed 

to negotiate a settlement of Yew's claim against the hospital. The court found

Inservco had no duty to engage in settlement negotiations with plaintiff because 

it was not the hospital's insurer. Having reviewed Yew's arguments in light of 

the record and applicable law, we affirm.

After Yew's godfather died at RWJUH, Yew filed two separate 

complaints, later consolidated, alleging medical malpractice by the hospital and 

its staff.

1

 He also filed a complaint against Inservco alleging unfair trade 

practices, bad faith, and gross negligence for failure to negotiate a settlement

with him on behalf of RWJUH. Yew alleged he was a "third party with [a]

vested interest." He attached as an exhibit to his complaint a letter from Inservco

denying his claim. In the letter, Inservco asserted it was a "third party 

administrator for . . . RWJUH . . . with regard to their professional and general 

liability self-insurance claims program."

Inservco moved for dismissal of Yew's complaint for failure to state a 

claim under Rule 4:6-2(e). Inservco argued it had no duty to engage in 

settlement negotiations with Yew because it was a third-party claims 

administrator, not an insurer.

1

 Those complaints were later dismissed with prejudice. 
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After oral argument, the court found Inservco established it was not the 

insurer of the named defendants in the medical malpractice case. The court 

noted Inservco was a third-party claims administrator, and thus, had no duty to 

negotiate a settlement on behalf of RWJUH. The trial judge stated orally she

would grant Inservco's motion to dismiss without prejudice, but on the same day 

entered an order granting the motion with prejudice. The judge also denied as 

moot Yew's motions to compel discovery and to amend his complaint to add 

Inservco's parent, Penn National Insurance.

Yew filed a motion for reconsideration, and leave to amend the complaint 

to add Penn National. The court denied Yew's motions, holding he had not 

presented anything new. Yew then filed yet another motion to amend his

complaint to add Penn National as a defendant. The court treated this motion as 

a "second Notice of Motion for Reconsideration," and denied it as well. 

Yew appeals from these orders. Yew argues: the court considered matters 

outside the record; his complaint should not have been dismissed because he 

alleged sufficient facts to support his claims; the court erred by dismissing his

complaint with prejudice; the judge created an appearance of impropriety; and 

his motions to compel discovery and amend his complaint should not have been 

dismissed as moot. 
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We review de novo the trial court's dismissal order under Rule 4:6-2(e), 

Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 

N.J. 91, 108 (2019), applying the same standard as the trial court, 

MasTec Renewables Constr. Co., Inc. v. SunLight Gen. Mercer Solar, LLC, 462

N.J. Super. 297, 309 (App. Div. 2020). "Our review is limited to the 'legal 

sufficiency of the facts alleged in the complaint.'" J-M Mfg. Co. v. Phillips &

Cohen, LLP, 443 N.J. Super. 447, 453 (App. Div. 2015) (quoting Donato v. 

Moldow, 374 N.J. Super. 475, 482 (App. Div. 2005)). We assume plaintiff's

factual allegations are true, and draw all inferences in plaintiff's favor. Ibid. 

Nonetheless, dismissal is appropriate if "the complaint states no basis for relief 

and discovery would not provide one[.]" Banco Popular N. Am. v. Gandi, 184 

N.J. 161, 166 (2005).

Applying that standard, we discern no error. Contrary to Yew's

arguments, the court did not improperly consider materials outside his complaint 

in finding Inservco was not an insurer. The trial court relied on an exhibit 

attached to the complaint which stated Inservco was a "third party administrator 

for . . . RWJUH . . . with regard to their professional and general liability selfinsurance claims program." See Myska v. N.J. Mfrs. Ins. Co., 440 N.J. Super. 

458, 482 (App. Div. 2015) ("In evaluating motions to dismiss, courts consider 
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'allegations in the complaint, exhibits attached to the complaint, matters of 

public record, and documents that form the basis of a claim. '") (quoting Gandi, 

184 N.J. at 183). 

We are also satisfied that the trial court correctly found that Yew failed to 

allege sufficient facts to state a claim against Inservco. Generally, "the insurer 

has an affirmative duty to explore settlement possibilities." 

Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 493 (1974). However, 

in this case, Inservco is not the insurer.

Furthermore, Yew is neither the insured, nor the insured's assignee. "An 

insurer's duty of good faith and fair dealing . . . has never been applied in New 

Jersey to recognize a bad-faith claim by an individual or entity that is not the 

insured or an assignee of the insured's contract rights." Ross v. Lowitz, 222 N.J. 

494, 514 (2015). In addition, Yew provided no proof that he was authorized to 

negotiate with anyone to settle a claim arising out of alleged medical malpractice

in his godfather's treatment; he filed suit in his own name, and not as a 

representative of the decedent or the estate. See Kern v. Kogan, 93 N.J. Super. 

459, 473 (Law Div. 1967) (noting that "the administrator Ad prosequendum is 

the proper party to bring a wrongful death action and the general administrator 

is the proper party to institute a survival action").
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Although a motion to dismiss pursuant to Rule 4:6-2(e) is ordinarily 

granted without prejudice to filing an amended complaint, see Printing MartMorristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 (1989), dismissal with

prejudice is appropriate if any effort to amend would be futile, Johnson v.

Glassman, 401 N.J. Super. 222. 246-47 (App. Div. 2008). The defects in

plaintiff's pleading against Inservco are incurable. Therefore, dismissal with

prejudice was warranted.2

2

 Although the order dismissing the complaint with prejudice was proper, we 

are constrained to express our disapproval of the judge's decision, at the close 

of oral argument, to entertain Inservco's counsel's request to speak to the judge 

off-the-record, and, apparently ex parte. After the judge orally decided to 

dismiss the complaint, counsel and plaintiff pro se each stated he wished to ask 

a question. The judge heard plaintiff first. He asked if the order would be 

without prejudice and the judge assured him it would. Then, the court turned to 

Inservco's counsel. 

Court: Counsel, you had a question?

Counsel: Yes.

Court: Okay.

Counsel: I was hoping off the record, just 'cause it's 

simply about --

Court: Oh, okay. Hold on one second.

The transcript ends there, without indicating the subject of the 

conversation. Plaintiff speculates that the conversation led the judge to convert 

the order to dismissal with prejudice, despite her oral assurance to the contrary. 

There is no evidence that the judge and counsel discussed the case at all. Yet, 

plaintiff's concern is a reasonable outcome of the court's decision to entertain an 

ex parte conversation with counsel, particularly inasmuch as counsel inquired 
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Finally, Yew's appeal of the court's orders denying his motions to amend 

his complaint to add Penn National is moot. After the court entered its order in 

this case, Yew successfully filed a complaint against Penn National in a separate 

lawsuit. A dispositive order has already been entered in that case. See Advance 

Elec. Co., Inc. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166

(App. Div. 2002) (stating that a case is moot if a "judgment cannot grant 

effective relief").

To the extent not addressed, plaintiff's remaining points lack sufficient 

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed. 

immediately after the court ruled and the subject of the discussion was not 

disclosed. "[J]udges must avoid acting in a biased way or in a manner that may

be perceived as partial." DeNike v. Cupo, 196 N.J. 502, 514 (2008). However, 

the misstep does not warrant reversal, as plaintiff requests, as the complaint 

remains incurably flawed. See Goldfarb v. Solimine, 460 N.J. Super. 22, 34 

(App. Div.) (noting that the appropriate remedy for an appearance of impropriety 

"depends on the facts and circumstances"), certif. granted on other grounds, 240 

N.J. 83 (2019).