SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2474-22 

CLARA D. MARADIAGA, 

individually & as Guardian Ad 

Litem for CASELYNN 

RODRIGUEZ, 

 Plaintiff-Appellant, 

v.

PROGRESSIVE INSURANCE 

COMPANY, 

 Defendant-Respondent, 

and 

LUCSON PRESUME and USCKUNGS, LLC, 

 Defendants. 

______________________________ 

Argued April 9, 2024 – Decided April 17, 2024 

Before Judges Mayer, Enright and Augostini. 

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Docket No. L-1615-20.

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-2474-22

Caesar Brazza argued the cause for appellant (Brazza 

Law, LLC, attorneys; Caesar Brazza, on the briefs).

Robert A. Maren argued the cause for respondent (Vella 

& Maren, attorneys; Robert A. Maren, on the brief).

PER CURIAM 

Plaintiff Clara Maradiaga appeals from an April 14, 2023 order granting 

defendant Progressive Insurance Company (Progressive) summary judgment 

and dismissing plaintiff's complaint with prejudice. We affirm. 

I.

We glean the facts from the motion record. On December 18, 2019, 

plaintiff was driving with her daughter in her leased 2019 Honda Odyssey and 

struck a vehicle driven by defendant Lucson Presume and owned by defendant 

USC-Kungs, LLC. Plaintiff and her daughter reportedly sustained injuries from 

the accident, and plaintiff's vehicle was later deemed to be a "total loss." 

Plaintiff leased the 2019 Honda Odyssey from Honda Financial Services 

(HFS). She purchased automobile insurance for the car from Progressive. Her 

insurance policy was in effect on the date of the accident and included 

comprehensive and collision coverage, personal injury protection (PIP), and 

rental reimbursement. Plaintiff's comprehensive and collision coverage was 
3 A-2474-22

limited to the actual cash value of the vehicle, less the deductible amounts stated 

in the policy. 

Plaintiff had the option to buy "loan/lease payoff coverage"1 from 

Progressive but elected not to purchase this coverage. The section of the policy 

explaining "loan/lease payoff coverage" stated, in part: 

If you pay the premium for this coverage, and the 

covered auto for which this coverage was purchased is 

deemed by us to be a total loss, we will pay, in addition 

to any amounts otherwise payable under this [section of 

the policy], the difference between: 

1. the actual cash value of the covered auto at the 

time of the total loss; and 

2. any greater amount the owner of the covered 

auto is legally obligated to pay under a written 

loan or lease agreement to which the covered auto 

is subject at the time of the total loss . . . . 

. . . . 

However, our payment under this coverage shall not 

exceed the limit of liability shown on the declarations 

page. The limit of liability is a percentage of the actual 

cash value of the covered auto at the time of the loss. 

This coverage applies only if you have purchased both 

Comprehensive Coverage and Collision Coverage for 

1

 "Loan/lease payoff coverage" is also known as "gap" coverage. This type of 

coverage pays the difference between the cash value of a vehicle and the 

insured's financial obligation under a financing agreement, such as a loan or 

lease, with the vehicle financing company. 
4 A-2474-22

that covered auto and the loss is covered under one of 

those coverages. 

Following the accident, plaintiff submitted a claim to Progressive for 

collision coverage and asked the carrier to pay off the balance due on her lease 

with HFS. She also submitted a PIP claim for medical bills related to the injuries 

she allegedly sustained from the accident. Progressive denied coverage, 

asserting plaintiff made material misrepresentations in her insurance application 

regarding where the Honda was garaged. 

In June 2020, plaintiff filed a complaint against Progressive for breach of 

contract, breach of fiduciary duty, bad faith, equitable relief, and property 

damage. She alleged "[t]he total financed amount [for the Honda] was 

$40,367.40" and that because defendant "declined to cover . . . [her] for her 

property damage and[/]or [a] rental car," she was compelled to continue making 

lease payments due on the Honda. 

In April 2021, HFS took possession of the Honda and sold it at an auction 

for $17,200. After crediting plaintiff for this sum against what she owed on the 

lease, and adjusting for miscellaneous other fees plaintiff owed for the 

repossession of the car, HFS demanded plaintiff pay the "deficiency balance" on 

the lease totaling $19,308.33. 
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In November 2022, plaintiff settled any claims she and her daughter had 

against defendants Lucson Presume and USC-Kungs, LLC. Plaintiff did not 

notify Progressive of the settlement before it was finalized. 

Because plaintiff's complaint against Progressive was dismissed and 

reinstated at various times throughout this litigation, the discovery end date was 

extended multiple times. Therefore, existing trial dates were rescheduled. The 

parties' last trial date was scheduled for May 1, 2023. 

On March 17, 2023, defendant moved for summary judgment. Plaintiff 

filed opposition to the motion. Judge Citrino heard argument on the motion on 

April 14, 2023. During the hearing, Progressive argued that because plaintiff 

settled claims with defendants USC-Kungs, LLC and Lucson Presume without 

notifying Progressive, she was barred from recovering from the carrier on her 

property damage claims, pursuant to the subrogation clause in her policy. 

Further, because HFS repossessed and sold the Honda, and only sought to have 

plaintiff pay the deficiency balance on her lease, Progressive argued plaintiff 

already received credit for the value of her car and "there [we]re no proofs to 

show . . . a recoverable right for the value of the vehicle." 
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Plaintiff's counsel argued Progressive's motion should be dismissed as 

untimely under Rule 4:46-1,2 considering it was returnable less than thirty days 

before the scheduled trial date. Further, counsel argued plaintiff was entitled to 

monetary damages because "she ended up paying an additional $500 a month 

for" her leased vehicle for "either six or seven months until [Honda] took that 

vehicle back," adding, "[t]hat is the entire claim of this underlying lawsuit." 

Additionally, plaintiff's counsel withdrew plaintiff's PIP claim because it "[wa]s 

not even an issue in this case," as plaintiff's medical bills were "either paid or 

payable." 

Following argument, Judge Citrino entered an order granting 

Progressive's motion and dismissing plaintiff's complaint with prejudice. In a 

cogent written opinion accompanying the April 14, 2023 order, the judge 

rejected plaintiff's procedural argument that Progressive's summary judgment 

motion should be dismissed as untimely. The judge acknowledged Progressive 

"filed the [summary judgment] motion on March 17, 2023" and "the trial 

date . . . ha[d] been assigned as May 1, 2023, [so] the motion [wa]s . . . 

returnable [seventeen] days prior to the trial date, in violation of R[ule] 4:46-1." 

2

 Rule 4:46-1 provides, in part, "[a]ll motions for summary judgment shall be 

returnable no later than [thirty] days before the scheduled trial date, unless the 

court otherwise orders for good cause shown." 
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However, the judge found "[p]laintiff . . . had ample opportunity to respond and 

file [o]pposition [to the summary judgment motion], which [plaintiff] ha[d] 

done." Therefore, the judge concluded it was appropriate to "proceed to rule on 

Progressive's motion." 

Next, Judge Citrino found that although plaintiff sought damages against 

Progressive for the payoff of her Honda lease, plaintiff lacked standing on this 

claim. The judge reasoned, "even if Progressive did not disclaim coverage and 

did not allege that [p]laintiff misrepresented the location of her [garaged] 

vehicle, . . . [p]laintiff did not have coverage for the reimbursement she 

s[ought]." The judge explained: 

[p]laintiff instituted the present action "to pay off the 

lease payments[ ]and[/]or pay the value of the car at the 

time of the loss.". . . According to the [letter] sent to 

[p]laintiff from H[FS], the owner of the [Honda] 

[p]laintiff leased, H[FS] s[ought] $19,308.33 pursuant 

to the remaining lease balance. . . . [U]nder the Outline 

of Coverage in the policy, . . . there [wa]s no premium 

listed for [l]oan/[l]ease [p]ayoff [c]overage, and thus 

[p]laintiff was not insured for [l]oan/[l]ease [p]ayoff 

[c]overage . . . . Due to the fact . . . [p]laintiff did not 

pay a premium for the [l]oan/[l]ease [p]ayoff 

[c]overage, she was not covered for any repayment 

from Progressive for her loan payments. Therefore,

[p]laintiff has no standing to bring a claim upon the 

insurance policy. 

 For the foregoing reasons, Progressive's motion 

is granted. 
8 A-2474-22

II.

On appeal, plaintiff argues: (1) "[a]n insurance carrier cannot disclaim 

coverage" on a policy while "seek[ing] protections under that [allegedly] 

voided[ ]policy"; (2) the judge erred in dismissing the "complaint without ruling 

on whether material issues of fact were present and despite material issues of 

fact being in dispute"; (3) the judge mistakenly "failed to discuss the 

[e]stablished [m]aterial [i]ssues of [f]act regarding [b]reach of [c]ontract . . . . 

[b]reach of [f]iduciary [d]uty . . . . and [b]ad[ f]aith"; (4) the judge erred in 

considering Progressive's "last-minute summary judgment motion despite its 

illegitimate return date"; and (5) "[a] lack of standing to pursue a single claim 

does not equate to a lack of standing to pursue all claims." These arguments 

fail. 

"The factual findings of a trial court are reviewed with substantial 

deference on appeal, and are not overturned if they are supported by 'adequate 

substantial[,] and credible evidence.'" Manahawkin Convalescent v. O'Neill, 

217 N.J. 99, 115 (2014) (quoting Pheasant Bridge Corp. v. Twp. of Warren, 169 

N.J. 282, 293 (2001)). However, we owe no special deference to the trial court's 

conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) 

(citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)). Moreover, "[w]hen 
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a trial court's decision turns on its construction of a contract, appellate review 

of that determination is de novo." Manahawkin Convalescent, 217 N.J. at 115. 

"We review a grant of summary judgment de novo, applying the same 

standard as the trial court." Norman Int'l, Inc. v. Admiral Ins. Co., 251 N.J. 538, 

549 (2022) (quoting Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 511 

(2019)). Thus, we consider "whether the competent evidential materials 

presented, when viewed in the light most favorable to the non-moving party in 

consideration of the applicable evidentiary standard, are sufficient to permit a 

rational factfinder to resolve the alleged disputed issue in favor of the 

nonmoving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 

(1995). 

Summary judgment must be granted "if the pleadings, depositions, 

answers to interrogatories[,] and admissions on file, together with the affidavits, 

if any, show that there is no genuine issue as to any material fact challenged and 

that the moving party is entitled to a judgment or order as a matter of law." R.

4:46-2(c). "If there is no genuine issue of material fact, we must then 'decide 

whether the trial court correctly interpreted the law.'" DepoLink Ct. Reporting 

& Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) 
10 A-2474-22

(quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 

2007)). 

To prevail on a breach of contract claim, a plaintiff must show: (1) a valid 

contract exists; (2) the defendant breached the contract; and (3) plaintiff suffered 

resulting damages. See Goldfarb v. Solimine, 245 N.J. 326, 338-39 (2021); see 

also Globe Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016). To establish a claim 

for breach of fiduciary duty, a plaintiff must show: (1) a duty was owed to the 

plaintiff; (2) the duty was breached; (3) the plaintiff was injured as a result of 

the breach; and (4) the breaching party caused that injury. See Namerow v. 

PediatriCare Assocs., LLC, 461 N.J. Super. 133, 146 (Ch. Div. 2018). 

We also recognize "every insurance contract contains an implied covenant 

of good faith and fair dealing." Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 604 

(2015) (quoting Wood v. N.J. Mfrs. Ins. Co., 206 N.J. 562, 577 (2011)). "As an 

extension, 'an insurance company owes a duty of good faith to its insured in 

processing a first-party claim.'" Ibid. (quoting Pickett v. Lloyd's, 131 N.J. 457, 

467 (1993)). 

An insurer's bad faith "can be established by showing that no debatable 

reason existed for the denial of benefits." Taddei v. State Farm Indem. Co., 401 

N.J. Super. 449, 460 (App. Div. 2008). However, "[t]he standard requires that 
11 A-2474-22

'a claimant who could not have established as a matter of law a right to summary 

judgment on the substantive claim would not be entitled to assert a claim for an 

insurer's bad-faith refusal to pay the claim.'" Id. at 461 (quoting Pickett, 131 

N.J. at 473). 

Guided by these principles, we have no reason to disturb the challenged 

order. We add the following brief comments. 

Here, it is uncontroverted that Progressive filed its summary judgment 

motion less than thirty days prior to the May 1, 2023 trial date and contrary to 

Rule 4:46-1. However, we decline to conclude, as plaintiff contends, the judge 

erred in considering the merits of the motion. As the judge aptly noted, "[d]ue 

process is not a fixed concept," and "the summary judgment rule does not 

'establish rigid requirements that must be met in every case for due process 

demands to be satisfied.'" See Seoung Ouk Cho v. Trinitas Reg'l Med. Ctr., 443 

N.J. Super. 461, 473-74 (App. Div. 2015). Therefore, although we do not 

condone Progressive's belated filing of its summary judgment motion, we agree 

with the judge's finding that plaintiff "had ample opportunity to respond and file 

[o]pposition," to Progressive's motion and "ha[d] done" so. Because it is evident 

plaintiff was not denied due process and was not prejudiced by the late filing, 

we discern no error in the judge's decision to consider the merits of the motion. 
12 A-2474-22

Similarly, there is no reason to second-guess Judge Citrino's 

determination that plaintiff lacked standing to pursue a claim for the payoff of 

her lease, considering plaintiff did not purchase loan/lease payoff coverage from 

Progressive. Moreover, we are convinced plaintiff's remaining theories of 

recovery were properly rejected by the judge as unsupported in the record. In 

fact, it is uncontroverted HFS owned plaintiff's Honda, and therefore, only HFS 

was entitled to retain the auction proceeds from the car after it was deemed a 

total loss and sold. Further, the car's salvage value was credited against the 

remaining amount plaintiff owed HFS under her lease, and HFS did not seek a 

contribution from plaintiff for the value of the vehicle. Instead, HFS only 

demanded that she pay the balance of her lease payments. Therefore, she had 

no comprehensive and collision claims upon which relief could be granted. 

Next, as we discussed, plaintiff voluntarily withdrew her PIP coverage 

claim. Also, she provided no documentation to the trial court in opposition to 

the summary judgment motion to support her claim for reimbursement on a 

rental vehicle, nor was this claim addressed during argument on the motion. 

Instead, the focal point of counsel's argument was plaintiff's lease payoff claim, 

and he told Judge Citrino this claim was "the entire claim of this underlying 

lawsuit." 
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In sum, because plaintiff failed to purchase lease payoff coverage from 

Progressive, the carrier owed her no duty to reimburse her for any outstanding 

lease payments on her vehicle. Thus, Judge Citrino correctly found plaintiff 

"did not have coverage for the reimbursement she s[ought]" and "no standing to 

bring a claim upon the insurance policy." 

To the extent we have not addressed plaintiff's remaining arguments, they 

lack sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). 

Affirmed.