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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-3551-22

PER CURIAM 

Plaintiff appeals from the June 23, 2023 order granting defendant's motion 

to dismiss her complaint for failure to state a claim pursuant to Rule 4:6-2(e). 

Defendant denied plaintiff coverage under a property insurance policy. The 

complaint alleged breach of contract and other claims. The trial court found 

plaintiff did not file the action within the two-year statute of limitations as 

required under the insurance policy. We affirm. 

In 2019, defendant1 issued plaintiff a renter's insurance policy for a 

residential property in Glassboro, New Jersey. Defendant submitted two letters 

it sent plaintiff enclosing the policy. The policy was effective October 30, 2019, 

and provided coverage for personal property and loss of use of the property for 

one year. Under "SECTION I-CONDITIONS," the policy specified that: 

8. Action Against Us. No action shall apply against 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 insurance coverage. Defendant 

was the underwriter of the policy. 
3 A-3551-22

However, the policy included a document titled "MANDATORY 

AMENDATORY ENDORSEMENT—NEW JERSEY," that amended the 

SECTION I statute of limitations, expanding the time to bring an action to two 

years. (boldface omitted). The policy also included an arbitration provision that 

required all claims and disputes be resolved in binding arbitration. 

Plaintiff alleged the property was destroyed in a fire on January 17, 2020. 

She filed a claim on January 21, 2020. On May 8, 2020, defendant denied 

plaintiff's claim, stating its investigation revealed plaintiff was not a resident of 

the property and therefore she was not displaced due to the fire, the fifteen 

individuals listed as residents of the property and identified 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 invoices submitted for 

reimbursement for displacement, and one of the hotel receipts stated "no show." 

 Defendant denied coverage under paragraph 2 of "SECTION I AND IICONDITIONS" of the insurance policy, titled "Concealment or Fraud." 

(boldface omitted). The provision stated defendant would not provide coverage 

for a loss if the insured "[i]ntentionally concealed or misrepresented any 

material fact or circumstance," acted fraudulently, or made false statements 

relating to the insurance. 
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 Plaintiff filed a complaint against defendant on February 7, 2023, alleging 

breach of contract. Defendant moved to dismiss the complaint as untimely since 

it was filed after the expiration of the limitations period under the policy. 

Plaintiff subsequently filed an amended complaint stating: 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 timely receive her insurance policy 

from defendant, and even if she had, the clause shortening the statute of 

limitations was inconspicuous in the policy; the shortened statute of limitations 

only applied to a lawsuit and not arbitration; the arbitration policy did not inform 

plaintiff of the shortened statute of limitations for arbitration; and the clause 

shortening the statute of limitations was unenforceable because defendant 

breached the insurance policy and was estopped under promissory and equitable 

estoppel from enforcing the clause. Plaintiff also filed a certification in response 

to the dismissal motion, reiterating her allegations 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 cited precedent permitting the 

shortening of a statute of limitations in an insurance policy and concluded that 

since plaintiff's complaint was filed almost three years after her claim was 
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denied, it was untimely under the two-year contractual statute of limitation. The 

court rejected plaintiff's argument that the policy should have emphasized the 

shortened 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 referenced the specific subheading 

titled "Action Against Us." 

 The court found plaintiff had not met the requirements of promissory or 

equitable estoppel and any amendment would be futile 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 regarding the arbitration 

clause because plaintiff did not file an arbitration demand. 

 On appeal, plaintiff reiterates her arguments presented to the trial court 

and contends the court erred in enforcing the policy'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 reviewed de novo. Baskin v. 

P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021). When deciding a Rule 4:6-
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2(e) motion, courts are instructed to "examine[] 'the legal sufficiency of the facts 

alleged on the face of the complaint.'" Dimitrakopoulos 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 action is suggested by the 

facts." Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). 

 As she did before the trial court, plaintiff relies on principles espoused in 

Atalese2 and its progeny of cases regarding the mutual assent required for a 

waiver of a constitutional right (right to a jury trial), the necessity for clear and 

understandable language, and the prominent positioning of an important 

provision such as a limitations clause that "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 arbitration clause. The

question is whether the insurer could shorten a statutory limitations period for 

the filing of an action against it, and whether plaintiff 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-3551-22

We previously considered this issue in Azze v. Hanover Insurance Co., 

336 N.J. Super. 630, 636 (App. Div. 2001). We noted 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 upon [them] such restrictions, conditions[,] and 

limitations as the average insured would ascertain from such reading.'" Sears 

Mortg. Corp. v. Rose, 134 N.J. 326, 348 (1993) (first alteration in original) 

(quoting Bauman v. Royal Indem. Co., 36 N.J. 12, 25 (1961)). Therefore, 

because of that expectation, the law does not impose an obligation 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 

estoppel claim. See Fredericks v. Farmers Reliance Ins. Co. of N.J., 80 N.J. 
8 A-3551-22

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 four days after 

the fire, evidencing knowledge of the insurer and existence of the policy and the 

opportunity to request 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. Ass'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 fundamental principle that an 

insurance policy is a contract, and like other contracts, the terms of the policy 

define the parties' rights and obligations."). Consequently, plaintiff's arguments 

regarding the policy's compliance with Atalese principles are not particularly 

relevant as the issue does not concern an arbitration clause. Nevertheless, we 

are satisfied the provision at issue here was "written 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 "SECTION ICONDITIONS" under a numbered paragraph that, in boldface print, was labeled 
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"Action Against Us." (boldface omitted). The paragraph contained 

understandable sentences and succinctly expressed that no action against 

defendant would be effective unless the terms of the policy were complied with 

and "[t]he action is brought within one year from the 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 boldface, 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 following." (boldface 

omitted). Below that was the new paragraph 8, as discussed above, changing 

the time limitation to bring a suit from one year to two years. 

 Because we conclude the complaint was untimely and barred under the 

plain language of the policy, we need not address plaintiff's remaining 

arguments. 

Affirmed.