TONY PING YEW VS. PENN NATIONAL INSURANCE (L-5042-19, MIDDLESEX COUNTY…

                                NOT FOR PUBLICATION WITHOUT THE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.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1526-19T4

TONY PING YEW,

          Plaintiff-Appellant,

v.

PENN NATIONAL INSURANCE,

     Defendant-Respondent.
_____________________________

                   Submitted October 7, 2020 – Decided October 28, 2020

                   Before Judges Rose and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Docket No. L-5042-19.

                   Tony Ping Yew, appellant pro se.

                   Margolis Edelstein, attorneys for respondent (Emery J.
                   Mishky and Stephanie Y. Cho, on the brief).

PER CURIAM

          Plaintiff, Tony Ping Yew, who is self-represented, appeals from the

October 11, 2019 order of the Law Division dismissing his complaint with
prejudice under Rule 4:6-2(e) for failure to state a cause of action and the

December 3, 2019 order denying his motion for reconsideration. We affirm both

orders.

       The following facts are derived from the record. On January 6, 2017,

plaintiff's godfather, John Y. Wei (Wei), passed away at Robert Wood Johnson

University Hospital (RWJUH). Plaintiff filed two lawsuits on behalf of Wei

asserting claims of medical malpractice: Yew v. RWJUH; Alexis Sample, RN;

Avery Castillo, RN; and Lorraine Martino, CCT, Docket No. MID-L-7564-18

and Yew v. Alexis Sample, RN, Docket No. MID-L-7569-18.1 The cases were

dismissed for lack of standing and for violation of Rule 1:21-1.2

       Plaintiff filed another lawsuit against Inservco, a third-party claims

administrator for the healthcare providers in medical malpractice cases, entitled,

Yew v. Inservco, Docket No. MID-L-5407-18. The complaint alleged Inservco

had a duty to engage in settlement negotiations with plaintiff. The trial court




1
    Both cases were consolidated under Docket No. MID-L-7564-18.
2
  In pertinent part, Rule 1:21-1 states at subsection (a): "Except as provided
below, no person shall practice law in this State unless that person is an attorney
holding a plenary license to practice in this State, [and] is in good standing . . ."


                                                                             A-1526-19T4
                                         2
dismissed the Yew v. Inservco complaint under Rule 4:6-2(e) for failure to state

a claim upon which relief can be granted. 3

      Thereafter, on July 5, 2019, plaintiff filed a "complaint for damages and

bad faith liability claim" against defendant Penn National Insurance, the insurer

for RWJUH, for failing to engage in settlement negotiations relating to Wei's

death. Plaintiff claimed he was a vested third-party beneficiary of Wei's estate

with a direct interest in settlement negotiations that defendant was obligated to

undertake. More specifically, plaintiff averred that defendant acted in "bad faith

for refusing to settle" the claim alleged by plaintiff and engaged in unfair trade

practices and gross negligence.

      On August 19, 2019, defendant filed a notice of motion to dismiss

plaintiff's complaint in lieu of answer, for failure to state a claim under Rule

4:6-2(e). Defendant argued that it had no duty to participate in settlement

negotiations with plaintiff and no facts were pled to form an actionable claim

against defendant.

      The trial court granted defendant's motion and dismissed plaintiff's

complaint with prejudice. In its statement of reasons, the trial court concluded:



3
  Plaintiff appealed the trial court's decision, and the matter is pending before
this court under Docket No. A-4604-18.
                                                                          A-1526-19T4
                                        3
            it is undisputed that [p]laintiff is not [d]efendant's
            insured. The doctrines and statutes that impose a duty
            upon an insurance company to act in good faith are
            available to an insured. Therefore, [p]laintiff does not
            have a bad-faith cause of action for the [d]efendant's
            alleged bad-faith practices for failing to engage in
            settlement.

A memorializing order was entered by the trial court on October 11, 2019.

      Plaintiff moved for reconsideration pursuant to Rule 4:49-2.              On

December 3, 2019, the trial court denied the motion and found:

            [Plaintiff's] status in this claim is that of a third-party.
            There are common-law principles which provide a
            third-party with standing to sue to enforce a contract.
            However, said principles are inapplicable in this matter.

            It is true that an insured may have claims against their
            insurer for bad-faith dealing and practices. For
            example, an insured may have a claim against their
            insurer for bad[-]faith for failure to settle within the
            policy limits. However, absent an assignment from the
            insured, an injured party does not have a cause of action
            against the insurer for bad faith. Biasi v. Allstate Ins.
            Co., 104 N.J. Super. 155, 159 (App. Div. 1969). Public
            policy does not mandate that the injured party in an
            accident should be deemed the intended beneficiary of
            an insurer's contractual duty to its insured to act in good
            faith regarding settlement. Id. at 160.

            Assuming arguendo that [defendant] had acted in bad-
            faith, in breach of their contractual obligations to their
            insured, [RWJUH] would hold the right to enforce said
            obligation. Absent an assignment of that right from
            RWJUH, [plaintiff], as a third-party [insured], does not
            have standing to sue [defendant]. Therefore, this

                                                                           A-1526-19T4
                                         4
            [c]ourt's previous [o]rder dismissing [plaintiff's]
            complaint was not entered in error. Accordingly,
            [plaintiff's] motion for reconsideration is denied.

The trial court entered a memorializing order that day.

      On appeal, plaintiff argues that the trial court erred in dismissing the

complaint with prejudice because he has third-party beneficiary standing to sue

defendant. Plaintiff also contends that the court erred in denying his motion for

reconsideration.

      We have considered these arguments in light of the record and the

applicable legal precedents and have concluded that each of them is without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Therefore, we affirm substantially for the reasons expressed by the trial court in

its written opinions dated October 11, 2019 and December 3, 2019 and add only

the following brief observations.

      We review de novo the trial court's determination of the motion to dismiss

for failure to state a claim under Rule 4:6-2(e). See Dimitrakopoulos v. Borrus,

Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019) (citation

omitted). Applying that standard, we discern no error by the trial court.




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                                        5
       Plaintiff argues that Wei died testate 4 thereby making plaintiff the

intended third-party beneficiary with regard to any settlement or judgment. We

reject plaintiff's assertion. More to the point, plaintiff is precluded from filing

a direct claim against defendant absent an assignment of rights. See Murray v.

Allstate Ins. Co., 209 N.J. Super. 163, 165 (App. Div. 1986); Biasi, 104 N.J. at

160. Nor do we agree with plaintiff's assertion on appeal that he is an implied

or expressed third-party beneficiary who can pursue his claims under a common

law theory of tort liability.

       Our review of the record demonstrates that the essential prerequisites for

a finding of common law tort liability are entirely absent. There is nothing that

demonstrates defendant breached any duty to plaintiff. Moreover, plaintiff does

not dispute that he is not defendant's insured and there is no contractual

relationship between them. Hence, there can be no bad faith claim.

       There is no basis, including public policy considerations, on which to

conclude that plaintiff is a third-party beneficiary, who was owed a duty by

defendant.

       Affirmed.




4
    On October 19, 2017, Wei's will was probated.
                                                                           A-1526-19T4
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