BERKELY RISK SOLUTIONS, LLC VS. INDUSTRIAL Â RE-INTERNATIONAL, INC.(L-0163-15, UNION COUNTY AND STATEWIDE), A-2366-15T1

Background

Berkley Risk Solutions (Berkley) and Admiral Insurance (Admiral) (Plaintiffs) were excess/surplus insurer and manager; Industrial Re-International and Rene Gutierrez (Defendants) are New Jersey-based reinsurance intermediary and its president. AFU (Puerto Rico general agent) placed policies for Puerto Rican municipalities; Industrial Re acted as AFU’s unlicensed agent and split commissions with AFU by private agreement. Plaintiffs paid commissions to AFU on renewal policies.
For 2005–08 commissions Industrial Re received payment (including via a 2007 Settlement Agreement between AFU and Industrial Re providing a 60/40 split in Industrial Re’s favor for renewals); plaintiffs were not parties to that Settlement Agreement but initially distributed commissions consistent with it on at least one renewal year.
For 2008–09 and 2009–10 renewals plaintiffs paid 100% of the commissions to AFU after communications in 2008 (notably Vosburgh’s emails), and AFU refused to separately stipulate to direct payment to Industrial Re; Industrial Re sued AFU in Puerto Rico and obtained judgment but could not collect.
Industrial Re demanded plaintiffs pay Industrial Re’s 60% share of the 2008–09 and 2009–10 commissions; plaintiffs filed a declaratory judgment action seeking a ruling they owed nothing to Industrial Re. Trial court granted plaintiffs summary judgment and dismissed Industrial Re’s counterclaims (promissory estoppel, unjust enrichment, tortious interference); defendants appealed.
Trial court applied New Jersey law (six-year statute of limitations), held defendants’ claims time-barred, and in any event found no contract or promissory estoppel or malicious interference by plaintiffs sufficient to require payment to defendants. This appeal affirms.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Choice of law / statute of limitations: Which forum's SOL applies?	New Jersey law applies; New Jersey has substantial interest so its 6-year SOL governs.	Puerto Rico law (15-year SOL) should apply because the underlying placement and agency issues relate to Puerto Rico.	New Jersey applies under Restatement §142 (forum presumptively applies its SOL); no exceptional circumstances to apply Puerto Rico law.
Promissory estoppel: Did plaintiffs promise to pay Industrial Re commissions?	No clear and definite promise; plaintiffs expressly stated they were not party to Settlement Agreement and reserved rights; emails were statements of understanding or conditional.	Plaintiffs’ emails (March and August 2008) show a promise to distribute proportionate shares to Industrial Re.	No promissory estoppel: no clear, definite promise by plaintiffs; summary judgment for plaintiffs proper.
Accrual date for breach claim (2009–10 commission): When did claim accrue for SOL purposes?	Plaintiffs repudiated obligation by Sept. 19, 2008 email; accrual triggered then (anticipated breach), making claim time-barred.	Accrual should be when the 2009–10 policy renewed (June 30, 2009) and commission became payable (allegedly July 31, 2009).	Court accepts anticipated-breach accrual (Sept. 19, 2008) and alternatively notes even if timely, defendants had no contractual basis against plaintiffs.
Tortious interference: Did plaintiffs intentionally and maliciously interfere with Settlement Agreement between Industrial Re and AFU?	Plaintiffs did not act maliciously or dishonestly; they reported their understanding and followed standard market protocol in paying the broker who submitted the complete renewal.	Vosburgh’s April 28 and Sept. 19 emails were improper interference that caused AFU to withhold consent to pay Industrial Re directly.	No tortious interference: no evidence of intentional, dishonest or improper conduct by plaintiffs; truthful communications and market protocol do not equal malice.

Key Cases Cited

Toll Bros. v. Bd. of Chosen Freeholders, 194 N.J. 223 (N.J. 2008) (elements of promissory estoppel)
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (N.J. 1995) (summary judgment standard)
Anderson v. Liberty Lobby, 477 U.S. 242 (U.S. 1986) (summary judgment: one-sided evidence justifies judgment)
Metromedia Co. v. Hartz Mt. Assocs., 139 N.J. 532 (N.J. 1995) (accrual: when enforceable right arises)
McCarrell v. Hoffmann-La Roche, 227 N.J. 569 (N.J. 2017) (Restatement §142 governs statute-of-limitations choice-of-law)
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (N.J. 1989) (elements of tortious interference)
Lamorte Burns & Co. v. Walters, 167 N.J. 285 (N.J. 2001) (malice requires conduct transgressive of accepted legal or moral standards)
Nostrame v. Santiago, 213 N.J. 109 (N.J. 2013) (liability for interference requires intentional and improper act)
Rowe v. Hoffman-La Roche, 189 N.J. 615 (N.J. 2007) (choice-of-law principles)