SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3551- 22 ARELIS GUTIERREZ, Plaintiff-Appellant,

v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, Defendant-Respondent.

Argued June 18, 2024

– Decided July 17, 2024 Before Judges Currier and Berdote Byrne. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L

- 0724

- 23. Charles D. Hellman argued the cause for appellant (Guarino & Co. Law Firm, LLC, attorneys; Philip L. Guarino, on the briefs). Erika M. Lopes-McLeman argued the cause for respondent (Dentons US LLP , attorneys; John R. Vales, Erika M. Lopes-McLeman, and James P. McGann, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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- 3551

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PER CURIAM Plaintiff appeals from the June 23, 2023 order gran ting defendant's motion to dismiss her complaint for failure to state a cla im pu rsuant to Rule 4:6 -2(e). Defendant denied plaintiff coverage under a propert y insurance policy. The complaint alleged breach of contract and other clai ms. The trial court found plaintiff did not file the action within the two -year statute of limitations as required under the insurance polic y. We affirm. In 2019, defendant 1 issued plaintiff a renter's insurance policy for a residential property in Glassboro, New Jersey. Def endant submitted two letters it sent plaintiff enclosing the policy. The policy was effective October 30, 2019, and provided coverage for personal property and los s of use of the property for
one year. Under "SECTION I-CONDITIONS," the policy specified that:

8. Action Against Us. No action shall apply agains t us unless: a. There has been full compliance with all the terms of this policy; and b. The action is brought within one year from the date when you discover the loss. [(boldface omitted).]

1 Assurant, a partner of GEICO, provided the insura nce coverage. Defendant was the underwriter of the policy.3 A- 3551

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However, the policy included a document titled "MAN DATORY AMENDATORY ENDORSEMENT

— NEW JERSEY," that amended the SECTION I statute of limitations , expanding the time to bring an action to t wo years. (boldface omitted). The policy also includ ed an arbitration provision that requir ed all claims and disputes be resolved in binding arb itration. Plaintiff alleged the property was destroyed in a fire on January 17, 2020. She filed a claim on January 21, 2020. On May 8, 2 020, defendant denied plaintiff's claim, stating its investigation reveal ed plaintiff wa s not a resident of the property and therefore she was not displaced du e to the fire, the fifteen
in dividuals listed as residents of the property and i dentified by plaintiff as employees for the business she owns were not listed on the policy as insureds, plaintiff's name was not listed on multiple hotel i nvoices submitted for reimbursement for displacement, and one of the hotel receipts stated "no show." Defendant denied coverage under paragraph 2 of "SE CTION I AND IICONDITIONS" of the insurance policy, titled "Concea lment or Fraud." (boldface omitted). The provision stated defendant woul d not provide coverage for a loss if the insured "[i]ntentionally conceale d or misrepresented any material fact or circumstance," acted fraudulently, or made false statements relating to the insurance.4 A- 3551

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Plaintiff filed a complaint against defendant on F ebruary 7, 2023, alleging breach of contract. Defendant moved to dismiss the complaint as untimely since it was filed after the expiration of the limitation s period under the policy. Plaintiff subsequently filed an amended complaint s tating : she did not waive the six-year statute of limitations and there was no mutual assent to shorten the statute of limitations; she did not tim ely receive her insurance policy from defendant, and even if she had, the clause sho rtening the statute of limitations was inconspicuous in the policy; the sh ortened statute of limitations only applied to a lawsuit and not arbitration; the arbitration policy did not inform plaintiff of the shortened statute of limitations f or arbitration; and the clause shortening the statute of limitations was unenforce able because defendant breached the insurance policy and was estopped unde r promissory and equitable estoppel from enforcing the clause. Plaintiff also filed a certification in response to the dismissal motion, reiterating her allegation s in the amended complaint. Following oral argument, the court issued an order and written statement of reasons on June 23, 2023, granting defendant's motion and dismissing the complaint. In a well-reasoned opinion, the court c ited precedent permitting the shortening of a statute of limitations in an insura nce policy and concluded that since plaintiff's complaint was filed almost three years after her claim was5 A- 3551

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denied, it was untimely under the two-year contract ual statute of limitation. The court rejected plaintiff's argument that the policy should have emphasized the shorten ed limitations period, stating "[t]o emphasize every clause in a contract would be to emphasize nothing." The court also addressed plaintiff 's argument that the clause was "buried" in the policy, stating the language was "abundantly clear and unmistakable, and is under no misleading headings." The court referenc ed the specific subheading titled "Action Against Us. " The court found plaintiff had not met the requirem ents of promissory or equitable estoppel and any amendment would be futil e since it could not change the fact that plaintiff did not file a claim within the contractual limitations period. The court did not address plaintiff's arguments regar ding the arbitration clause because plaintiff did not file an arbitratio n demand. On appeal, plaintiff reiterates her arguments pres ented to the trial court and contends the court erred in enforcing the polic y's statute of limitations clause. We are not persuaded. A trial court's decision on a Rule 4:6 -2(e) motion to dismiss for failure to state a claim upon which relief can be granted is r eviewed de novo. Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021). When deciding a Rule 4:6

-6 A- 3551

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2(e) motion, courts are instructed to "examine[] 't he legal sufficiency of the facts alleged on the face of the complaint.'" Dimitrakop oulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 107 (2019) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). They must also give the plaintiff "every reasonable inference of fact." Ibid. (quoting Printing Mart-Morristown, 116 N.J. at 746). "The test for determining the adequacy of a pleading is whether a cause of ac tion is suggested by the facts." Velantzas v. Colgate-Palmolive Co., 109 N. J. 189, 192 (1988). As she did before the trial court, plaintiff relie s on principles espoused in Atalese 2 and its progeny of cases regarding the mutual asse nt required for a waiver of a constitutional right (right to a jury t rial), the necessity for clear and understandable language, and the prominent position ing of an important provision such as a li mitations clause th at "materially alter[s] or abolish[es]" a consumer's rights. However, plaintiff did not file a demand for arbitration

. The issue presented is not the enforceability of an ar bitration clause. The question is whether the insurer could shorten a statutory limi tations period for the filing of an action against it, and whether pla intiff was apprised of that amendment. The answer is yes.

2 Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 442- 45 (2014).7 A- 3551

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We previously considered this issue in Azze v. Hano ver Insurance Co. , 336 N.J. Super. 630, 636 (App. Div. 2001). We note d that, under New Jersey law, there is a six-year statute of limitations for claims brought pursuant to an insurance contract. Ibid. (citing, among others N. J.S.A. 2A:14-1(2022)). "However, that period may be shortened by the terms of an insurance contract." Ibid. Plaintiff was apprised of the two -year statute of limitations in the policy issued in October 2019. An insured is "expected to read their policies and 'the law may fairly impose upo n [them] such restrictions, conditions[,] and limitation s as the average insured would ascertain from such r ea ding. '" Sears Mortg. Corp. v. Rose, 134 N.J. 326, 348 (1993) (fir st alteration in original) (quoting Bauman v. Royal Indem. Co., 36 N.J. 12, 25 (19 61 )). Therefore, because of that expectation, the law does not impose an ob ligation on an insurer to inform the insured of the details in the policy

. Edwards v. Prudential Prop.
& Cas. Co. , 357 N.J. Super. 196, 204 (App. Div. 2003). Although plaintiff contends she did not receive a copy of the policy, there is no evidence she requested the insurer provide it to her. Without an affirmative request, plaintiff cannot rely on her self-serving assertion to support an equitable estopp el claim. See Fredericks v. Farmers Reliance Ins. Co . of N.J., 80 N.J.8 A- 3551

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Super. 599, 602- 03 (App. Div. 1963) (holding an insurer should not be allowed to enforce a statute of limitations clause in an insurance policy when the insurer refused to provide the policyholder with the policy even after the policyholder requested it)

. Moreover, plaintiff filed a claim with defendant f our days after the fire, evidencing knowledge of the insurer and e xistence of the policy and the opportunity to requ es t a copy of the policy. An insurance policy is a contract and therefore is subject to common law principles of contract law. Cypress Point Condo. A ss'n v. Adria Towers, L.L.C. , 226 N.J. 403, 415 (2016); Webb by Webb v. Witt , 379 N.J. Super. 18, 33 (App. Div. 2005) ("We begin our analysis with the fundame ntal principle that an insurance policy is a contract, and like other cont racts, the terms of the policy define the parties' rights and obligations." ). Consequently, plaintiff's arguments regarding the policy's compliance with Atalese prin ciples are not particularly relevant as the issue does not concern an arbitrati on clause

. Nevertheless, we are satisfied the provision at issue here was "writ ten in a simple, clear, understandable and easily readable way" as required by N.J.S.A. 56:12-2 of the Plain Language Act, N.J.S.A. 56:12-1 to -13. The original provision was in a section titled "SEC TION ICONDITIONS" under a numbered paragraph that, in bol dface print, was labeled9 A- 3551

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"Action Against Us." (boldface omitted). The para graph contained understandable sentences and succinctly expressed t hat no action against defendant would be effective unless the terms of th e policy were complied with and "[t]he action is brought within one year from t he date when [the insured ] discover[ed] the loss." The effective paragraph altering the time to bring an action was placed earlier in the policy, in a document titled, in bol dface, and all capital letters
"MANDATORY AMENDATORY ENDORSEMENT

— NEW JERSEY" with text immediately below it, also in boldface and all capital letters, which read
"THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY." (boldface omitted). Underneath it was a sentence explaining paragraph eight was "deleted and replaced by the fo llowing." (boldface omitted). Below that was the new paragraph 8, as d iscussed above, changing the time limitation to bring a suit from one year t o two years. Because we conclude the complaint was untimely and barred under the plain language of the policy, we need not address p laintiff's remaining arguments. Affirmed.