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Sunday, May 10, 2015

PATRICIA C. MYSKA, DAX MORALES, KATHERINE K. WAGNER AND JOHN B. OTDISCO VS. NEW JERSEY MANUFACTURERS INSURANCE COMPANY, AAA MID-ATLANTIC INSURANCE COMPANY OF NEW JERSEY AND PALISADES INSURANCE COMPANY A-4398-13T4


PATRICIA C. MYSKA, DAX MORALES, KATHERINE K. WAGNER
          AND JOHN B. OTDISCO VS. NEW JERSEY MANUFACTURERS
          INSURANCE COMPANY, AAA MID-ATLANTIC INSURANCE COMPANY
          OF NEW JERSEY AND PALISADES INSURANCE COMPANY
          A-4398-13T4/A-0275-14T4 (CONSOLIDATED)
On remand from the Supreme Court, we consider these appeals, calendared back-to-back and consolidated for purposes of our opinion, reviewing orders dismissing plaintiffs' putative class action complaints, attacking defendant-insurers alleged denial of diminution in value damages, as a covered component of the underinsured and uninsured motorist provisions in their respective automobile insurance policies. Plaintiffs argue striking class allegations prior to discovery was premature and unprecedented. Although we agree courts must liberally view class allegations, allowing reasonable inferences to be gleaned from the complaint's allegations, and must also search for a possible basis for class relief so as to avoid premature dismissals, Lee v. Carter-Reed Co., 203 N.J. 496, 505-06, 518 (2010), we do not abide a view that precludes dismissal of a complaint at the incipient stage of litigation, upon a determination claims do not properly lend themselves to class certification, when made following the required searching analysis. See Riley v. New Rapids Carpet Center, 61 N.J. 218, 225 (1972) (holding "a class action should lie unless it is clearly infeasible"). We flatly reject plaintiffs' urging to impose a bright-line rule prohibiting examination of the propriety of class certification until discovery is undertaken.
Our review also examines whether plaintiffs allege cognizable claims under the Consumer Fraud Act and whether the arbitration clause in one policy withstands scrutiny, under Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014), petition for certiorari filed Jan. 21, 2015.