SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0491-19T1

KING WIRELESS, LLC,

Plaintiff-Appellant,

v.

MIDVALE INDEMNITY 

COMPANY,1

Defendant-Respondent.

Submitted October 7, 2020 – Decided

Before Judges Fuentes and Rose.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-7800-17.

Michael I. Lubin, attorney for appellant.

Burke & Potenza, P.A., attorneys for respondent (Joel 

R. Bellush, on the brief).

PER CURIAM

1

 Improperly pled as GEICO Insurance Company.

NOT FOR PUBLICATION WITHOUT THE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.

October 27, 2020
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In this insurance coverage dispute, plaintiff King Wireless, LLC, appeals 

from a March 15, 2019 Law Division order granting summary judgment to 

defendant Midvale Indemnity Company. The motion judge determined 

defendant had properly cancelled a commercial insurance policy for nonpayment of premiums and, as a result, he dismissed the complaint in its entirety. 

Because defendant complied with the notice provisions set forth in N.J.A.C. 

11:1-20.2(e), we affirm. 

As required by Rule 4:46-2(c), we view the facts in the light most 

favorable to plaintiff. See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 

520, 523 (1995). Those facts are summarized as follows. 

Plaintiff, a limited liability company, operated an electronics store on 

Ferry Street in Newark. Defendant issued a commercial insurance policy to 

plaintiff for the period from June 14, 2016 to June 14, 2017. The policy was 

procured during a telephone conversation between plaintiff's sole owner, Nader 

Moussa, and Kimberly Crawley, a representative of GEICO Commercial Lines 

Program.2 During the call, Moussa selected $160,000 in coverage and paid the 

initial deposit on the $2576.99 premium by credit card. 

2

 Defendant was the underwriter for GEICO Commercial Lines Program on the 

policy. 
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The parties dispute the method of payment for the remaining premium 

installments: Moussa claims he told Crawley to charge the same credit card; 

defendant3asserts Moussa declined the automatic payment method, choosing 

instead "to receive documents by physical mail." Moussa acknowledged he 

thereafter received a copy of the policy, which was sent to plaintiff's address on 

Ferry Street.

On June 24, 2016, defendant issued a billing statement listing the 

remaining monthly payment schedule. The billing statement also contained an 

"Important Note," advising plaintiff it could "pay by phone with [its] credit card 

or an electronic check[,]" or "via automated recurring deductions from [its] 

checking account or credit card." In plaintiff's responses to defendant's material 

statement of facts in support of its summary judgment motion, plaintiff neither 

3

 To support its summary judgment motion, defendant filed the affidavit of 

Nathan Miller, a commercial product manager of Homesite Insurance Company. 

According to Miller's affidavit, Homesite and defendant "are affiliates of 

American Family Mutual Insurance Company." Miller conducted a review of 

the record entries of the telephone call between Moussa and Crawley, who did 

not file an affidavit. Miller summarized defendant's procedure for issuing 

insurance during such calls generally and the substance of the parties' call here. 
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admitted nor denied that defendant "mailed" the billing statement; plaintiff did 

not, however, deny receiving the billing statement.4 

It is undisputed that plaintiff did not remit payment for the second 

installment, which was due on July 14, 2016. Moussa claimed he assumed 

installment payments would be charged to plaintiff's credit card, which he 

furnished to Crawley during their call. 

Thereafter, defendant issued a cancellation notice to plaintiff. The notice, 

dated July 25, 2016, stated coverage would terminate on August 14, 2016 at 

12:01 a.m., unless a minimum payment of $214.75 was made by that date. 

Defendant issued a reminder notice, dated August 7, 2016, reflecting the same 

minimum payment due to avoid the cancellation deadline on August 14, 2016. 

When deposed, Moussa denied receiving the cancellation and reminder 

notices. He testified another electronics store was located in plaintiff's building 

and shared the same street address. Moussa claimed mail often was delivered 

4

 See R. 4:46-2(b) (requiring a party opposing a summary judgment motion to 

"either admit[] or disput[e] each of the facts in the movant's statement [of 

material facts]" and deeming admitted the movant's statements "unless 

specifically disputed by citation . . . demonstrating the existence of a genuine 

issue as to the fact"). Plaintiff provided no citation to the record in any of its 

responses or counterstatement of facts.
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to the wrong store and, due to his poor relationship with the owner of that store, 

Moussa would not receive misdelivered mail. 

In his affidavit, Miller asserted the notice of cancellation

was mailed from the offices of a print and mail vendor 

used by [defendant] in Omaha, Nebraska. In 

accordance with New Jersey statute and regulation, 

[defendant] retained a proof of mailing of various 

cancellation notices mailed on July 26, 2016, including 

that which was sent to King Wireless LLC at [XXX] 

Ferry Street in Newark. A copy of that proof of 

mailing, bearing the July 26, 2016 stamp of the Omaha, 

Nebraska office of the United States Postal Service is 

attached as Exhibit D.

According to plaintiff's answers to interrogatories, on September 2, 2016, 

after a neighboring store was burglarized, Moussa called defendant to ensure 

plaintiff's policy "was in full force and effect." Moussa claimed defendant 

verified coverage during that call, but he did "not know the name of the person 

he spoke with."5 Two months later, a fire caused damage to plaintiff's place of 

business. Defendant denied the claim because the policy had been cancelled for 

nonpayment of premium. In November 2017, plaintiff filed its complaint 

against defendant, seeking to recover damages sustained as a result of the fire. 

5

 Plaintiff provided its telephone records in discovery. The telephone records 

provided on appeal do not contain any September 2016 calls.
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Defendant moved for summary judgment at the end of the discovery 

period. The motion judge heard argument from counsel and immediately 

thereafter issued a brief oral decision in defendant's favor. In essence, the judge 

determined "defendant cancelled the policy pursuant to the administrative code, 

and [as such] . . . the notice [wa]s presumed to be received" provided defendant 

followed the mandates of N.J.A.C. 11:1-20.2. This appeal followed.

On appeal, plaintiff reprises its argument that a genuine issue of fact 

regarding its method of payment precludes summary judgment. In doing so, 

plaintiff emphasizes the "key factual issue" is "not whether the policy was 

cancelled for nonpayment of premiums, but whether it [wa]s properly 

cancelled." Toward that end, plaintiff maintains: "The question was not 

whether defendant followed the New Jersey Administrative Code regarding 

cancellation of an insurance policy, whether it actually sent a notice of 

cancellation or whether plaintiff received the notice of cancellation."

We review the trial court's grant of summary judgment de novo. Templo 

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 

199 (2016). Employing the same standard the trial court uses, we review the 

record to determine whether there are material factual disputes and, if not, 

whether the undisputed facts viewed in the light most favorable to plaintiff 
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nonetheless entitle defendant to judgment as a matter of law. Ibid.; Brill, 142 

N.J. at 540; see also R. 4:46-2(c). We owe no deference to the trial court's legal 

analysis or interpretation of a statute. Palisades at Fort Lee Condo. Ass'n v. 100 

Old Palisade, LLC, 230 N.J. 427, 442 (2017) (citation omitted). 

The governing principles are well-established. The Commissioner of 

Banking and Insurance is authorized to promulgate rules and regulations 

regarding insurance non-renewal and cancellation notices. N.J.S.A. 17:29C-1; 

Piermount Iron Works, Inc. v. Evanston Ins. Co., 197 N.J. 432, 439-40 (2009). 

Pursuant to that authority, the Commissioner has adopted, among other 

provisions, N.J.A.C. 11:1-20.1. Pursuant to subsection (e) of this regulation: 

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.

Further, a notice of cancellation or non-renewal is not valid unless it 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 
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address of the insured, and the insurer has retained a 

duplicate copy of the mailed notice.

[N.J.A.C. 11:1-20.2(i).]

We have held, albeit in the context of automobile insurance coverage, that 

to be effective, notices of cancellation must be sent in strict compliance with 

applicable statutory and regulatory provisions. See, e.g., Lopez v. N.J. Auto. 

Full Ins. Underwriting Ass'n, 239 N.J. Super. 13, 20 (App. Div. 1990). We have 

also recognized, however, that "[a]n insured need not actually receive a 

cancellation notice in order for it to be effective, provided that the statutory 

proof of mailing has been satisfied." Hodges v. Pa. Nat. Ins. Co. on Behalf of 

NJAFIUA, 260 N.J. Super. 217, 222-23 (App. Div. 1992) (citation omitted). 

Thus, the determinative factor is the mailing of the notice, not its receipt. See

Needham v. N.J. Ins. Underwriting Ass'n, 230 N.J. Super. 358, 369 (App. Div. 

1989). 

Here, however, plaintiff does not challenge whether defendant complied 

with N.J.A.C. 11:1-20.2. An issue not briefed is deemed waived. See Gormley 

v. Wood-El, 218 N.J. 72, 95 n.8 (2014). Nonetheless, we note the exhibits 

offered in support of defendant's motion for summary judgment include a proof 

of mailing from the Omaha, Nebraska branch of the United States Postal Service, 

which is date-stamped July 26, 2016 and accurately reflects plaintiff's complete 
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business name and address, and a copy of the mailed notice of cancellation as 

required by subsection (i) of N.J.A.C. 11:1-20.2. Accordingly, we conclude 

defendant's cancellation of the insurance policy was made in accordance with 

the governing regulation. We therefore discern no basis to disturb the motion 

judge's decision.

To the extent not addressed, plaintiff's remaining arguments lack 

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

Affirmed.