SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3916- 21 SKORR PRODUCTS, LLC, and ROBERT SKVORECZ, Plaintiffs-Appellants,

v. BOLLINGER, INC., and ARTHUR J. GALLAGHER & CO., individually and as successor in interest to BOLLINGER, INC., Defendants-Respondents.

Submitted February 7, 2024

– Decided April 30, 2024 Before Judges Currier and Firko. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L -7149- 17. Goodgold West & Bennett, LLC , attorneys for appellants (David Eric Maitlin, of counsel and on t he briefs). White and Williams, LLP, attorneys for respondents (Christopher P. Leise and Marc L. Penchansky, on the brief). NOT FOR PUBLICATION WITHOUT THE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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3916

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PER CURIAM Plaintiffs appeal from the March 4 and July 28, 202 2 orders granting defendants' motion for summary judgment and denying their motion for reconsideration. We affirm.
I. Plaintiff Skorr Products, LLC made and sold chafing dish holders and stands for buffet dishes, used by catering companie s and restaurants. Plaintiff Robert Skvorecz owned Skorr Products. On February 5, 2014, a fire at plaintiffs' manufacturing facility caused extensive damage to i ts machinery, commercial and personal property, and interrupted Skorr Produc ts's ability to conduct business. Plaintiffs were insured with Franklin Mutual Insura nce Company (FMI) under a policy that provided $1,371,900 in coverage for business personal property loss and $500,000 for loss of business inc ome. After the fire, plaintiffs claimed $6,000,000 for loss of business property an d $2,000,000 in business interruption loss. FMI made loss payments to Skorr Produ cts under its policy in excess of $1,500,000. In 2017, plaintiffs instituted suit against their insurance brokers, defendants Bollinger, Inc. (Bollinger) and Arthur J . Gallagher & Co.3 A- 3916

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(Gallagher), as the successor in interest to Bollin ger, 1 alleging defendants: breached their duty to meet with plaintiffs and rev iew their insurance, breached duties imposed on them by the parties' special rela tionship, and breached their duty to advise plaintiffs and to obtain for plainti ffs increased coverage. Plaintiffs alleged Gallagher was liable under a theory of succ essor tort liability. We provide some background information to place pla intiffs' theories of liability into context. In the mid to late 1990s, the Rork Insurance Agency , owned by George Rork, began providing insurance bro kerage services to Skorr Products and to Skvorecz personally

. According to Rork, he met with Skvorecz two to three times a year to maintain their busines s and personal relationship. 2
Rork also deliver ed the insurance policies to Skvorecz, although Skvorecz did not recall that. Skvorecz also stated he did not review the policies

. After Bollinger acquired Rork Agency in 2005, Rork worked at Bollinger and continued to service Skorr Products's account f or a period of time. Melissa Chung also worked at Rork Agency and then became em ployed at Bollinger after the acquisition. In 2007, Chung became responsible for Skorr Products's

1 Gallagher acquired Bollinger in 2013.

2 Rork and Skvorecz became personal friends, attendin g the U.S. Open, golfing, and visiting one another in Florida.4 A- 3916

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account

. She advised Skvorecz she was taking over the account and in vited him to contact her with any questions about the policy coverage or if he wished to make changes to the coverage limits. Rork retired in 2008. Bollinger mailed renewal questionnaires to its clie nts each year shortly before their new policies were to take effect. The clients were instructed to complete the questionnaires and return them to Boll inger. Specific questions asked whether the client needed to make any changes to its business personal property limits and whether the client had purchase d any new equipment in the past year. On the bottom of the questionnaire, it stated in bold face and underlined: "By not returning this questionnaire o r calling us to provide changes for updates, you acknowledge no changes or adjustme nts are needed to your existing insurance program and do not desire Bollin ger to pursue additional or optional coverage quotes on your behalf." (boldface and emphasis omitted). In January 2013, Bollinger sent Skvorecz a question naire regarding the renewal of the business insurance policy that becam e effective on March 4, 2013. According to Chung, neither Skvorecz nor any repres entative of Skorr Products ever returned a completed questionnaire during the 2005-2013 time period. In February 2013, Bollinger sent Skvorecz the insuranc e policy for Skorr Products for the period of March 4, 2013 to March 4, 2014

.5 A- 3916

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Skvorecz testified during his deposition that he he ld degrees in business and engineering. He stated he made all the busines s decisions for Skorr Products, and had complete authority for running th e business, including the procurement of insurance coverage. Skvorecz did no t dispute that he received insurance policies from Bollinger, but he stated he never reviewed the policies nor questioned the coverage. From the time Rork retired in 2008 until 2013, Skvo recz did not contact Bollinger although he acknowledged its representati ves were available to answer any questions

. Skvorecz explained he did not need help valuing hi s equipment since he had the necessary information necessary to do it himself. He agreed that Chung was not in a position to value his equipment. Further, Skvorecz stated he valued his inventory himself for tax purp oses. In November 2013, Skvorecz called Rork about insuri ng the transport of a machine he had purchased in Michigan. 3 During the call, Skvorecz mentioned that no one from Bollinger had ever contacted him. After their conversation, Rork contacted Chung, who called Skvorecz on Novemb er 15. According to Chung, after discussing the cost of insuring the tr ansportation of the new

3 The machine had not been delivered to the Skorr Pro ducts facility at the time of the fire.6 A- 3916

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machine, Skvorecz "mentioned" the equipment at his facility might be underinsured and requested that FMI inspect it. Th e same day, Chung emailed a contact at FMI regarding Skvorecz's request. When Chung heard back from FMI, she emailed Skvorecz asking for a contact pers on for the inspection. Skvorecz did not respond with the name of a contact person. Edward Prol, an FMI employee, inspected Skorr Products's machinery on January 21, 2014. In his report to the underwriting department, Prol stated, "It was very hard to determine a value, knowing this is a one of a kind . . . operation, with machinery used specific[ally] for the operatio ns." On January 29, 2014, Chung emailed Skvorecz that FM I was unable to value his machinery because it was custom made. Sh e informed him he could "either leave the value as is or increase the amoun t if you feel you are underinsured." Chung advised Skorecz the policy co ntained a $163,000 equipment value. 4 Skvorecz did not respond but emailed Chung on Febru ary 6, 2014, informing her of the fire the night before. This lawsuit ensued.

4 According to plaintiffs, the reference to $163,000 was a special endorsement that covered a truck and two pieces of equipment, n ot the production machinery.7 A- 3916

- 21 II. Following the close of discovery, and with a pendin g trial date, defendants moved for summary judgment, arguing they did not ha ve a special relationship with plaintiffs and, therefore, plaintiffs could no t establish their breach of fiduciary duty claim. In opposing the motion, plai ntiffs included an expert report from a former owner of an insurance company. 5 Plaintiffs contended they had a special relationship with Rork and that Chung's com munication with Skvorecz regarding the valuation of his equipment continued that special relationship. On March 4, 2022, Judge Lisa M. Adubato issued a well-re asoned written decision and accompanying order granting defendants ' motion and dismissing plaintiffs' claims with prejudice. The judge relie d on the established law under Wang v. Allstate Insurance Co. , 125 N.J. 2, 15 (1991), in stating an insurance carrier and its agents do not have a common law dut y to advise its insureds regarding the potential need for higher policy limi ts upon renewal of a policy unless there is a special relationship. Moreover, Chung had advised Skvorecz before the fire that he could increase his insuranc e limits if he wished to do so, and he had not responded to the correspondence. Ab sent a special relationship,

5 Plaintiffs also moved for a fifth extension of di scovery. Following the grant of summary judgment, the trial court denied the ext ension motion as moot.8 A- 3916

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the judge found defendants did not owe plaintiffs a duty to recommend higher policy limits to the existing insurance coverage. Judge Adubato then considered whether plaintiffs ha d demonstrated the existence of a special relationship, guided by Wang and Triarsi v. BSC Gr ou p Services, LLC, 422 N.J. Super. 104, 116-17 (App. Div. 2011 ). The judge found that Rork's working relationship with Skvorecz did not comprise "actions or events that fall outside the typical broker-client relationship." While Rork made personal visits to Skvorecz to deliver paperwork an d discuss the business, the judge found Skvorecz conceded he was "best situated to make evaluations regarding the value of his machinery." The judge f ound Rork did not invite detrimental reliance and Skvorecz did not rely on R ork to his detriment, as required to establish a special relationship under Triarsi

. Furthermore, the judge noted that even if Rork's pr evious business practices created a special relationship, it ended when he stopped servicing the account in 2007 prior to his retirement the followi ng year. Bollinger did not have an obligation to continue the same business pr actices that Rork did. Moreover, for the six years between Rork's retireme nt and the fire, Bollinger and Chung communicated with plaintiffs through writ ten correspondence and the mail ed yearly renewal forms. Plaintiffs accepted that bu siness practice.9 A- 3916

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Judge Adubato concluded: "The duration of the rela tionship between [Rork Agency] and then Bollinger, and the conduct of the parties does not weigh in favor of finding a special relationship between the broker and client here. Instead, the consistent practices of both [Rork Age ncy] and Bollinger were those of typical broker-client relationships." The judge also addressed plaintiffs' contention tha t a special relationship was created when Skvorecz requested Chung arrange a n inspection of his equipment. The judge found that Chung agreed to reach out t o FMI and she did

so. When FMI determined it could not value the equipm ent, Chung asked Skvorecz if he wanted to increase his limits. Skvo recz did not respond. Judge Adubato concluded there was no evidence that plaintiffs d etrimentally relied on Chung to assess the equipment value or increase cov erage limits, reiterating that Skvorecz had valued his equipment in the past and w as in the best position to do so. Moreover, Skvorecz had the opportunity to i ncrease the insurance coverage limits each year when Bollinger sent the r enewal notice. The judge concluded the single contact with Chung did not est ablish a special relationship. Therefore, plaintiffs could not support their claim s of a breach of fiduciary duty.10 A- 3916

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Plaintiffs' subsequent motion for reconsideration w as denied. The judge found plaintiffs had presented nothing more than a disagreement with the order granting summary judgment.
II I. We "review[] the grant of a motion for summary judg ment de novo, applying the same standard used by the trial court. " Samolyk v. Berthe , 251 N.J. 73, 78 (2022). A motion for summary judgment shoul d be granted if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment . . . as a matter of law." R. 4:46 -2(c). Viewing the evidence "in the light most favorable to the non-mo ving party," a court must "'determine whether there is a genuine issue for tr ial.'" Brill v. Guardian Life Ins. Co. of Am. , 142 N.J. 520, 540 (1995) (quoting Anderson v. Liber ty Lobby, Inc., 477 U.S. 242, 249 (1986)). Our review of whe ther a defendant owes a plaintiff a duty is de novo because it is an issue of law. Rowe v. Bel l & Gossett Co., 239 N.J. 531, 552 (2019). We first address plaintiffs' argument that defendan ts breached the fiduciary duty of care owed to plaintiffs because t hey did not provide the same service as Rork did when he was handling the accoun t. Plaintiffs contend defendants had an obligation to "inquire" about the adequacy of their insurance11 A- 3916

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coverage, instead of only mailing renewal questionn aires. They further assert that when Chung arranged for an inspection of plain tiffs' machinery, she was obligated to value the machinery, which she failed to do. In addition, plaintiffs contend Chung should have informed plaintiffs their business interruption coverage was insufficient. An insurance broker has a fiduciary duty to "their clients, to whom they

owe a duty to exercise reasonable skill and good faith." Harbor Commuter Serv.,
Inc. v. Frenkel & Co., 401 N.J. Super. 354, 367 (App. Div. 2008). However, unless an insurance broker and their client have a special relationship, "there is no common law duty . . . to advise an insured conce rning the possible need for higher policy limits upon renewal of the policy." Wang, 125 N.J. at 11- 12 , 15

. An insurance broker can assume a duty of care towards thei r client if they have a special relationship such that the client re lies on them. Triarsi, 422 N.J. Super. at 116- 17. To determine whether there is a special relations hip, the court will examine the length of the insurance broker and client's relationship, their prior conduct, and whether there was "an inquiry or request by the insured or a specific representation by the . . . broker." Id. at 116; Wang, 125 N.J. at 18. However, "the client must establish '"something mor e"' than a broker-client relationship in order to impose a heightened standa rd of care on [the] broker."12 A- 3916

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Triarsi, 422 N.J. Super. at 117 (quoting Glezerman v. Columbian Mut. Life Ins. Co., 944 F.2d 146, 151 (3d Cir. 1991)). The plaintiff mu st prove "the insurance [broker] 'assume[d] duties in addition to those nor mally associated with the [broker]-insured relationship' by conduct that invi ted plaintiff's detrimental reliance." Ibid. (second alteration in original) ( quoting Glezerman, 944 F.2d at 150). Plaintiffs have not demonstrated they had a special relati onship with Rork because their communications and actions did "not f all outside the typical broker-client relationship" and did not invite Skvo recz to detrimentally rely on Rork. Neither individual stated that Rork recommen ded a different level of insurance coverage or that Rork ever valued plainti ffs' machinery and equipment for insurance purposes. To the contrary, Skvorecz acknowledged he did not need help valuing his equipment to determine if he was u nderinsured as he had all the necessary information to do it himself. Rork confi rmed he did not value the machinery. Rork testified that his level of customer service w ith Skvorecz was his "standard practice." Neither he nor Skvorecz state d that Rork recommended or chose specific coverage limits during their meeting s. The evidence reflects Rork did not "assume [] duties in addition to those normally associated wi th the13 A- 3916

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[broker]-insured relationship" or induce Skvorecz t o detrimentally rely on him. Ibid. (quoting Glezerman, 944 F.2d at 150). Moreover, as Judge Adubato noted, even if Rork and Skvorecz did have a special relationship, it ended when Rork retired. Although defendants handled their business with their clients differently than Rork had, they had n o obligation to continue Rork's practices. Plaintiffs have not demonstrated defendants assumed additional duties outside of the normal bro ker-insured relationship or induced plaintiffs' detrimental reliance by sending out annual renewal questionnaires

. As the judge stated, the provision of annual renew al forms is a "typical" practice of "broker-client relationships. " Lacking a special relationship, defendants did not have a duty to advise plaintiffs of the need to change their insurance co verage. Notwithstanding that conclusion, defendants informed plaintiffs they cou ld increase their insurance coverage if they wanted to. This was consistent wi th Rork Agency's practices, who did not value clients' equipment, but would assist cli ents in valuing it. Contrary to plaintiffs' contentions, Chung did not agree to value plaintiffs' machinery; she only agreed to arrange an inspection of plaintiffs' machinery

— which she did.14 A- 3916

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Bollinger's annual renewal questionnaires asked Skv orecz if he had obtained any new equipment and if he wanted to make any changes to his business personal property coverage. Skvorecz did not return any of the completed questionnaires and did not contact Chung to ask any questions he may have had about his insurance, despite acknowledging her availability for that
purpose. Plaintiffs also assert the trial court erred in fai ling to properly consider their expert report, which discussed the standard o f care owed by defendants to plaintiffs and the breach of it. We find no merit in this argument. First, the repo rt was untimely as discovery had ended. In addition, it was improperl y served as an attachment to opposition to the summary judgment motion, rather than as an amendment to interrogatories as required under Rule 4:17-7. Nevertheless, the report was discussed during the o ral argument on the summary judgment motion. In addition, the judge re ferred to it in her oral decision denying reconsideration. Moreover, whethe r there was a special relationship was a legal determination solely withi n the court's province. See Wang, 125 N.J. at 15.15 A- 3916

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W e similarly discern plaintiffs' additional arguments that the trial judge erred in denying their motion for reconsideration t o be without merit. They have not presented any evidence that the court's decisio n was "palpably incorrect or irrational" or that the judge "did not . . . appreci ate the significance of probative, competent evidence." Cap. Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (quoting D'Atria v . D'Atria , 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Plaintiffs' dissatisfac tion with the court's decision is not a basis for reconsideration. See Palombi v. Pa lombi , 414 N.J. Super. 274, 288 (App. Div. 2010). Affirmed.