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.
