New Jersey’s new pre-suit policy disclosure requirement
A recent change to the New Jersey Motor Vehicles and Traffic Regulation creates a pre-suit, time sensitive obligation to provide the disclosure of applicable policy limits.
N.J.S.A. 39:6B-1.1 (the “Statute”) provides that:
an insurer who receives a request, from an attorney admitted to the practice of law in this State, for disclosure of the policy limits under an insurance policy issued by the insurer to an insured, shall provide written disclosure of the policy limits to the attorney no later than 30 days from receipt of the request. The disclosure shall indicate the limits of all applicable insurance policies and any applicable umbrella or excess liability insurance policies issued by the insurer to the insured.
The Legislature set forth the terms of a demand for policy information, including:
- A statement the attorney represents an individual who suffered bodily injury or death;
- The name and address of the insured;
- Approximate date and time of the accident;
- Copies of applicable accident reports;
- In the case of motor vehicle accidents, a statement from the claimant or attorney providing insurance information including the insurer, policy number, policyholder name, tort threshold selection, and PIP coverage limits.
The Statute specifies that compliance with demands for disclosure of limits “shall not constitute an admission that the alleged injury or damage is subject to the policy.” The Statute also explicitly prohibits the use of insurance policy limits information at the time of trial, and creates confidentiality requirements on the party who receives the information, restricting the information to the injured party, their attorney, and the attorney’s staff.
In addition, effective October 4, 2022, the Statute requires insurers that issue policies within the State of New Jersey to provide the Department of Banking and Insurance (“DOBI”) with an email address for the purpose of receiving requests for disclosure. The DOBI will then make such information publicly available.
Tort plaintiffs may potentially argue that this New Jersey Motor Vehicles and Traffic Regulation creates a mandatory disclosure obligation for an insurer to provide policy limit information regarding any policies it issued, not just automobile policies. This argument likely would be based on the use of the word “all” before “applicable insurance policies.”
However, the placement of the Statute within New Jersey’s Title 39, which governs Motor Vehicles and Traffic Regulation, lends support for a more narrow interpretation. In fact, the Statute is placed into Subtitle 2. “Other Laws Regulating Motor Vehicles,” and then Chapter 6B “Compulsory Motor Vehicle Insurance.” Furthermore, all of the surrounding statutes in the same Chapter relate directly to motor vehicles: “Liability Insurance; Amount of Coverage” N.J.S.A. 39:6b-1, “Penalties for Failure to Carry Motor Vehicle Insurance Coverage” N.J.S.A. 39:6b-2; and “Uninsured Motorist Prevention Fund” N.J.S.A. 39:6b-3.
It can be anticipated that insurers will receive pre-suit disclosure demands from New Jersey attorneys looking to ascertain the limits of insurance before commencing a lawsuit, and that such demands will not be limited to auto liability policies.
An insurer that responds to such pre-suit demands should be mindful that the Statute expressly limits the amount of information to be disclosed to just policy limits and perhaps the type of policy, i.e., auto, umbrella or excess. The Statute expressly states that the disclosure “shall indicate the limits of all applicable insurance policies and any applicable umbrella or excess liability insurance policies.” Thus, no further disclosures are expressly required by the Statue, meaning the insurer is not obligated to provide a copy of the policy itself or even its declarations page.
Furthermore, unlike states which require a certification or affidavit attesting to the disclosure’s accuracy, no such requirement is included within the Statute.
There also is no clearly specified enforcement mechanism for a failure by an insurer to timely comply with a request to disclose limits. Indeed, it is not readily apparent what potential remedies would even be available given that the Statute implicates pre-litigation obligations to potential plaintiffs.
In summary, the Statute remains open to interpretation, but any insurer that responds to a pre-suit demand should do so strictly within the parameters of the Statute. The disclosure should be made within 30 days of the request and simply set forth the limits of applicable insurance. It is advisable to make the disclosure under a reservation of rights that tracks the Statute to state that the disclosure does not constitute an admission that the alleged injury or damage is subject to the policy.