ROCHE

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MICHELLE ROCHE, Individually

and as Class Representative, Case No. 22–cv–00607–ESK–EAP

Plaintiff,

v. OPINION

AETNA INC., et al.,

Defendants.

KIEL, U.S.D.J.

THIS MATTER is before the Court on a motion to dismiss (Motion) (ECF

No. 66) the amended complaint (Complaint) (ECF No. 64 (Compl.)) by

defendants Aetna Inc., Aetna Health Inc. (a N.J. corporation), Aetna Health

Insurance Company, Aetna Life Insurance Company (collectively, Aetna), and

The Rawlings Company LLC (Rawlings). Defendants filed a brief (ECF No. 67

(Def’s Br.)) and a declaration with exhibits (ECF No. 68) in support of the

Motion. Plaintiff Michelle Roche, individually and as class representative,

filed opposition (ECF No. 71 (Opp’n Br.)) to the Motion. Defendants filed a

reply brief to plaintiff’s opposition (ECF No. 72 (Reply Br.)).

For the following reasons, the Motion is GRANTED IN PART and

DENIED IN PART.

I. FACTUAL BACKGROUND1

On January 19, 2007, Roche was in a car accident where she sustained

injuries for which she received medical treatment. (Compl. ¶ 36.) Plaintiff

1 The Court incorporates by reference the background section of Judge

Hillman’s opinion (ECF No. 27) on defendants’ first motion to dismiss.

sought and received medical benefits through her “School Employees Health

Benefit Program” (SEHBP) health insurance policy of $86,601.72. (Compl.

¶ 37.) The SEHBP policy is issued and administered by Aetna. (Id.)

Plaintiff also filed a lawsuit for damages against the other driver in the car

accident. (Compl. ¶ 38.)

Defendant Rawlings specializes in healthcare subrogation services.

(Compl. ¶ 12.) Rawlings, acting as an agent for Aetna, asserted a lien,

subrogation claim, and/or demand for reimbursement for the benefits Aetna

paid plaintiff under the SEHBP. (Compl. ¶ 39.) Plaintiff, in response, made

a payment to defendants of $86,601.72, for which she now seeks redress.

(Compl. ¶ 41.)

In May 2023, District Judge Hillman (ret.) stayed this case pending an

appeal before the New Jersey Superior Court, Appellate Division 2 and

administratively terminated defendants’ first motion to dismiss. (ECF No.

27.) In April 2024, the parties sought, and the Court granted, a lift of the stay,

and the case was reassigned to me. (ECF Nos. 29, 30, 31.) After limited

discovery, defendants filed a renewed motion to dismiss in January 2025 (ECF

No. 59). Roche amended her complaint in response. (ECF No. 64.)

Defendants filed the Motion in March 2025.

Plaintiff asserts the following claims against Aetna: violation of N.J.S.A.

§ 2A:15-97 and N.J.A.C. § 11:4-42.10 (count I); breach of contract (count II);

breach of the duty of good faith and fair dealing (count III); violation of the New

Jersey Consumer Fraud Act (CFA) (count IV); violation of fiduciary duty as set

out in the Restatement (Second) of Torts (Restatement) § 874 (count V);

2 The appeal, in part, involved the timeliness of plaintiff’s appeal of the final

determination by the New Jersey School Employees’ Health Benefit Commission.

Judge Hillman concluded that “the issues before the state court are directly related to

the claims before this court.” (ECF No. 27 p. 16.)

“directing or permitting conduct of another” as set out in the Restatement § 877

(count VI); bad faith (Count VII); “acting in concert” as set out in the

Restatement § 876 (count VIII); intentional misrepresentation (count IX);

conversion (count X); theft by deception in violation of N.J.S.A. § 2C:20-4 (count

XI); and unjust enrichment (count XII).

Plaintiff asserts the following claims against Rawlings: violation of

N.J.S.A. § 2A:15-97 and N.J.A.C. § 11:4-42.10 (count XIII); “acting in concert” as

set out in the Restatement § 876 (count XIV); unjust enrichment (count XV);

intentional misrepresentation (count XVI); conversion (count XVII); and theft

by deception in violation of N.J.S.A. § 2C:20-4 (count XVIII).

Plaintiff also asserts putative class claims on behalf of “other similarly

situated individuals” against Aetna for: breach of contract (count XX); breach

of the duty of good faith and fair dealing (count XXI); intentional

misrepresentation (count XXII); conversion (count XXIII); violation of the CFA

(count XXIV); violation of fiduciary duty as set out in the Restatement § 874

(count XXV); “directing or permitting conduct of another” as set out in the

Restatement § 877 (count XXVI); bad faith (count XXVII); theft by deception in

violation of N.J.S.A. § 2C:20-4 (count XXVIII); and unjust enrichment (count

XXIX). Plaintiff asserts the putative class claims against Rawlings for:

violation of N.J.S.A. § 2A:15-97 and N.J.A.C. § 11:4-42.10 (count XIX); and

“acting in concert” as set out in the Restatement § 876 (count XXX).

II. STANDARD

A. Motion to Dismiss

When considering a motion to dismiss a complaint for failure to state a

claim under Federal Rule of Civil Procedure (Rule) 12(b)(6), courts must accept

all well-pleaded allegations in the complaint as true and view them in the light

most favorable to the non-moving party. Makky v. Chertoff, 489 F. Supp. 2d

421, 429 (D.N.J. 2007). A motion to dismiss may be granted only if the plaintiff

has failed to set forth fair notice of what the claim is and the grounds upon

which it rests that make such a claim plausible on its face. Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007). Although Rule 8 does not require “detailed

factual allegations,” it requires “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

In reviewing the sufficiency of a complaint, a court must take three steps.

Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, it must

“tak[e] note of the elements [the] plaintiff must plead to state a claim.” Iqbal,

556 U.S. at 675. Second, it should identify allegations that, “because they are

no more than conclusions, are not entitled to the assumption of truth.” Id.at

679). Finally, “[w]hen there are well-pleaded factual allegations, [the] court

should assume their veracity and then determine whether they plausibly give

rise to an entitlement to relief.” Id. “[A] complaint’s allegations of historical

fact continue to enjoy a highly favorable standard of review at the motion-to-

dismiss stage of proceedings.” Id. at 790.

B. Motion to Drop Parties

“On motion or on its own, the court may at any time, on just terms, add or

drop a party. The court may also sever any claim against a party.” Fed. R.

Civ. P. 21. “District courts have broad discretion in deciding whether to sever

a party pursuant to Rule 21.” Turner Const. Co. v. Brian Trematore Plumbing

& Heating, Inc., 07–666, 2009 WL 3233533, at *3 (D.N.J. Oct. 5, 2009) (internal

quotations omitted).

III. DISCUSSION

A. Plaintiff’s Claims Are Not Barred by the

Statute of Limitations.

To dismiss a claim at the pleadings stage because it is barred by a statute

of limitations, the time bar must be clear on the face of the complaint. See

Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). A statute of limitations

defense is required to be pleaded as an affirmative defense in the answer

however, defendant may raise a limitations defense by motion under Rule

12(b)(6) only if “the time alleged in the statement of a claim shows that the

cause of action has not been brought within the statute of limitations.” Hanna

v. U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir.1975)).

Courts in this district will not dismiss cases based on a statute of

limitations unless a “plaintiff effectively [pleads herself] out of court by alleging

facts that [are] sufficient to establish the defense.” See Schmidt, 770 F.3d at

252 (internal quotations omitted) (citing Hollander v. Brown, 457 F.3d 688, 691

n. 1 (7th Cir 2006)); compare, e.g., Doe v. Hosbach, 24–4756, 2025 WL 2444239,

at *3 (D.N.J. Aug. 25, 2025) (refusing to assume a plaintiff’s birthday because

it is not the plaintiff’s burden to anticipate and refute affirmative defenses),

with Barker v. United Airlines, Inc., 23–3065, 2024 WL 378633, at *5 (D.N.J.

Feb. 1, 2024) (finding claim time-barred when an email integral to plaintiff’s

claims conclusively showed date of accrual outside the statute of limitations).

Here, the parties agree that plaintiff’s claims are subject to a six-year

statute of limitations. (Def’s Br. p. 33; Opp’n Br. p. 36 n. 3.) However, they

disagree on when the six-year period accrued. Defendants argue that “the

statutes … accrue[d] on September 30, 2010, when Roche received an adverse

benefit determination through Rawlings’[s] initial assertion of the [SEHBP’s]

reimbursement rights.” (Def’s Br. p. 33.) Roche asserts that the statute of

limitations could not have accrued “until there was a recovery and then only

once Roche was harmed by the January 2013 payment to Aetna.” (Opp’n Br.

p. 35.)

Defendants’ statute of limitations argument is premature. Defendants

cite to paragraph 39 of the Complaint, but that paragraph does not contain any

facts about dates.3 (Reply Br. p. 17.) There is nothing on the face of the

complaint where plaintiff pleads herself out of this case. See Schmidt, 770

F.3d at 252.

Although I need not reach the question of when the statute of limitations

began to accrue, plaintiff appears to have the law on her side. In general, the

statute of limitations can only accrue once plaintiff has suffered a harm. See

Russo Farms, Inc. v. Vineland Bd. of Educ., 675 A.2d 1077, 1084 (N.J. 1996)

(finding a negligence claim accrues once plaintiff has suffered a “consequential

damage or loss”).

Aetna points to no case law supporting its position that the plaintiff’s

claims accrued when Aetna, through Rawlings, asserted its alleged right to

subrogation. “The general rule is that the statute of limitations begins to run

as soon as a right to institute and maintain suit arises.” See Haugh v. Allstate

Ins. Co., 322 F.3d 227, 231 (3d Cir. 2003). And, here, Roche could not have

sued for the return of her payment in September 2010 because she had not yet

made the payment and, thus, not suffered harm. Accordingly, defendants’

motion to dismiss the Complaint as untimely filed is DENIED.

B. Plaintiff’s Claims Are Not Barred by the

Voluntary Payment Doctrine.

The voluntary payment doctrine provides that “where a party, without

mistake of fact, or fraud, duress or extortion, voluntarily pays money on a

demand which is not [enforceable] against him, he cannot recover it back.”

Simonson v. Hertz Corp., 10–1585, 2011 WL 1205584, at *3 (D.N.J. Mar. 28,

2011) (quoting In re N.J. State Bd. of Dentistry, 423 A.2d 640, 643 (N.J. 1980)).

3 Paragraph 39 states: “Rawlings … asserted a lien, subrogation claim and/or

demand for reimbursement for the benefits which Aetna paid under its non-ERISA

‘School Employees Health Benefit Program’ as against [p]laintiff's personal injury

recovery.” (Compl. ¶ 39.)

“Since the [voluntary payment doctrine] is equitable in nature, factual as well

as legal disputes are for the Court, and not the jury, to decide.” Boyko v. Am.

Int’l Grp., Inc., 08–2214, 2012 WL 1495372, at *13 (D.N.J. Apr. 26, 2012)

(internal quotations omitted), order vacated in part on reconsideration, 2012

WL 2132390 (D.N.J. June 12, 2012); see also Roche v. Aetna, Inc., 167

F. Supp. 3d 700, 712 (D.N.J. 2016).

At the motion to dismiss stage, analysis of the voluntary payment

doctrine—just as with the statute of limitations—depends on the face of the

complaint. “This Court has previously determined that application of the

voluntary payment rule cannot be resolved on a motion to dismiss, where the

complaint does not establish whether the plaintiff’s payment was truly

voluntary and made without mistake of fact.” Rickenbach v. Wells Fargo

Bank, N.A., 635 F. Supp. 2d 389, 395 (D.N.J. 2009) (citing Carducci v. Aetna

U.S. Healthcare, 247 F. Supp. 2d 596, 619 (D.N.J. 2003), overturned on other

grounds by Levine v. United Healthcare Corp., 402 F.3d 156 (3d Cir. 2005)).

Here, rather than relying on the Complaint, Aetna argues that Roche’s

January 2013 payment was “unquestionably voluntary” based solely on records

of pre-payment correspondence between the parties that were filed in a prior

related case. (Reply Br. p. 20 (citing ECF No. 11–1, Roche v. Aetna, Inc., 165

F. Supp. 3d 180 (D.N.J. 2016), aff’d 681 F. App’x 117 (3d. Cir. 2017)). At this

stage, I can only consider the Complaint, which does not establish whether

Roche’s $86,601.72 payment in January 2013 “was truly voluntary and made

without mistake of fact.” (Compl. ¶ 41 (stating the payment was made “in

response to the Defendants’ lien, subrogation and/or repayment demands for

the money paid by the [SEHBP] health policy”)); see Rickenbach, 635

F. Supp. 2d at 395. Nothing in the Complaint suggests that Roche knew that

the subrogation demand was not enforceable. 4 Accordingly, defendants’

motion to dismiss the Complaint under the voluntary payment doctrine is

DENIED.

C. All Defendants Are Proper at This Stage.

Defendants argue that the only proper Aetna-defendant is Aetna Life

Insurance Company, who administered the SEHBP, and that the Court should

dismiss the other Aetna defendants—Aetna Inc., Aetna Health, Inc. (a NJ

Corp.), and Aetna Health Insurance Company. (Def’s Br. p. 46.) Roche

counters that defendants “are attempting to obtain dismissal of three of the

Aetna entities before Roche is permitted to obtain discovery,” by using

information beyond the Complaint and that Roche should be allowed discovery

“to determine the precise involvement of all of the Aetna defendants with the

injury[-]causing conduct.” (Opp’n Br. pp. 49, 50.)

I agree with Roche. The Complaint asserts allegations against all four

Aetna defendants. (Compl. ¶¶ 20 (alleging “Aetna” did not end subrogation

activity), 42, 43 (making allegations against “All Defendants”).) Moreover, the

case cited by defendants wherein Aetna Inc. was dismissed was a dismissal at

summary judgment, not on a pre-answer motion to dismiss. (Def’s Br. p. 47

(citing Lutz Surgical Partners PLLC v. Aetna, Inc., 15–2595, 2021 WL 2549343,

at *4 (D.N.J. June 21, 2021), vacated on other grounds, 2023 WL 2472403

(D.N.J. Feb. 8, 2023)).)

Defendants may ultimately prevail in having the other Aetna-defendants

dismissed from this case. At this stage of the litigation, however, the

Complaint sufficiently alleges claims against all Aetna-defendants. I suggest

the parties confer to resolve which Aetna-defendants are proper parties.

4 Indeed, in several paragraphs, plaintiff alleges that defendants were aware

that their demand for payment was unlawful. (See e.g., ECF No. 64 ¶¶ 1, 25, 42, 81,

86.)

Absent a stipulation between the parties agreeing to dismiss certain Aetna-

defendants because they were not involved in the issuance and administrative

of the SEHBP, the resolution of this issue will likely require summary judgment

practice.

Accordingly, I will not dismiss any defendants at this time. See In re

Riddell Concussion Reduction Litig., 77 F. Supp. 3d 422, 432 (D.N.J. 2015)

(“The specific role of each defendant will be elucidated through discovery to

which [p]laintiffs are entitled because the allegations in the Amended

Complaint are sufficient to provide notice under Rule 8.”); see also Strike 3

Holdings, LLC v. Doe, 18–12585, 2020 WL 3567282, at *6 (D.N.J. June 30, 2020)

(“[D]etermining whether the defendant named in an action is in fact the

defendant against whom liability will ultimately stand necessarily implicates

an analysis of material outside the four-corners of the complaint, and

considering whether the pled defendant is the wrong defendant at the pleading

stage is inappropriate.”).

D. N.J.S.A § 2A:15-97 and N.J.A.C. § 11:4-42.10

Applies to Plaintiff’s Claims.

The central question—as evidenced by the proportion of the parties’

briefing devoted to it—is whether the New Jersey Collateral Source Statute

(Statute), N.J.S.A. § 2A:15-97, and the Anti-Subrogation Regulation

(Regulation), N.J.A.C. § 11:4-42.10, restrict Aetna’s subrogation right for

benefits paid to an insured for injuries suffered in a car accident in

Pennsylvania and who recovered a settlement against the tortfeasor from a

Pennsylvania lawsuit. I find that both the Statute and the Regulation apply

to prohibit Aetna’s subrogation claim.

The Statute “require[s] a plaintiff who receives benefits from any source

other than a joint tortfeasor to deduct that amount from [their] recovery in any

civil action. Thus, payments made by health care providers are deducted from

a plaintiff’s tort recovery under New Jersey law.” Levine, 402 F.3d at 164.5

The Regulation6 was promulgated in response to the New Jersey Supreme

Court’s opinion in Perreira v. Rediger, 778 A.2d 429 (N.J. 2001). There, the

Court held that the then-existing Department of Insurance regulation 7

conflicted with the Statute and was invalid. See Levine, 402 F.3d at 160.

Defendants argue that the Statute should not apply here because it is a

procedural—not substantive—rule that should not apply extraterritorially to

Roche’s lawsuit in Pennsylvania. (Def’s Br. pp. 28, 29; Reply Br. pp. 2, 3.)

Defendants rely on Levine, in which the Third Circuit labeled the Statute a

“general law of civil procedure,” 402 F.3d at 165, and argue that New Jersey

civil procedure rules do not apply to actions before Pennsylvania courts.

5 N.J.S.A. § 2A:15-97 states:

In any civil action brought for personal injury or death, except

actions brought pursuant to the provisions of P.L.1972, c. 70 (C.

39:6A-1 et seq.), if a plaintiff receives or is entitled to receive

benefits for the injuries allegedly incurred from any other

source other than a joint tortfeasor, the benefits, other than

workers' compensation benefits or the proceeds from a life

insurance policy, shall be disclosed to the court and the amount

thereof which duplicates any benefit contained in the award

shall be deducted from any award recovered by the plaintiff, less

any premium paid to an insurer directly by the plaintiff or by

any member of the plaintiff's family on behalf of the plaintiff for

the policy period during which the benefits are payable. Any

party to the action shall be permitted to introduce evidence

regarding any of the matters described in this act.

6 The Regulation provides, in relevant part: “No policy or certificate providing

group health insurance shall limit or exclude health benefits as the result of the

covered person's sustaining a loss attributable to the actions of a third party.”

N.J.A.C. § 11:4-42.10.

7 The then-existing regulation permitted health insurance policies to include

reimbursement and subrogation claims. N.J.A.C. § 11:4-42.10 (1993) (repealed

August 5, 2002).

(Reply Br. p.3); see also Mattson v. Aetna Life Ins. Co., 124 F. Supp. 3d 381, 390

n.1 (D.N.J. 2015) (citing Levine, 402 F.3d at 165) (“[T]he [Statute] is clearly a

procedural statute.”).

Roche counters that the Statute applies to the SEHBP because it is an

insurance contract made in New Jersey with a resident of New Jersey, which

uses a handbook with a New Jersey choice-of-law provision. (See Opp’n Br.

p. 20; Compl. ¶ 44 (quoting the 2009 and 2010 Aetna Member Handbooks: “State

law and the New Jersey Administrative Code govern the SHBP and SEHBP.

If there are discrepancies between the information presented in this handbook,

and the law, regulation, or contract, the latter will govern” (emphasis omitted)).

Further, Roche asserts that the Statute “is not merely a procedural rule, as it

determines substantive rights relating to damages a party can recover.”

(Opp’n Br. p. 15.)

I agree with Roche. The statement from Levine, that the Statute is a

“general law of civil procedure,” is dicta. In Levine, the Third Circuit

addressed whether ERISA preempted the Statute. See 402 F.3d at 164. The

insurance plans had paid a portion of the insureds’ medical bills. Id. at 160.

The insurance plans, thereafter, sought reimbursement from a portion of the

insureds’ tort settlements. Id. The Court determined that the Statute did

not apply to ERISA governed plans because it was not “specifically directed

toward the insurance industry” but could apply to parties other than insurance

entities and cases outside the insurance industry. Id. at 166. In this context,

the Court’s statement that the Statute “is a general law of civil procedure” is in

recognition that the Statute governs all civil cases, not “merely those involving

insurance entities.” Id. at 165. It was not a determination that the Statute

only governs civil case procedure. And, even if the Statute is “merely”

procedural, a procedural rule can still have substantive applications to health

insurance policies. Cf. De Vito v. Liquid Holdings Grp., Inc., 15–6969, 2018

WL 6891832, at *24 (D.N.J. Dec. 31, 2018) (noting in the context of federal court

procedures that “almost any procedural rule will exert some effect on

substantive rights”).

That Roche’s car accident and subsequent state-court litigation took place

in Pennsylvania is immaterial. The New Jersey Legislature, in enacting the

Statute, sought to do away with the common law collateral source doctrine by

requiring a plaintiff’s tort recovery to be reduced by any other benefits received.

And the Regulation affirmatively prevents New Jersey health insurers from

seeking subrogation against their insureds. In short, New Jersey has a strong

interest in enforcing its statutes when the matter involves a New Jersey

resident, who is employed in New Jersey and insured by a New Jersey health

insurer that utilizes a handbook with a New Jersey choice-of-law provision.

Likewise, it is of no moment that SEHBP is not a traditional private health

insurance company. This matter is materially indistinguishable from County

of Bergen Employee Benefit Plan v. Horizon Blue Cross Blue Shield of New

Jersey, which held that the Statute applied to a self-insured municipality

because it “draws no distinction between a publicly-funded payment source and

a private, for-profit health insurer.” 988 A.2d 1230, 1237 (N.J. Super. Ct. App.

Div. 2010). Defendants point out (Reply Br. p.10 n.7) that County of Bergen

involved a tort case in New Jersey, but as discussed above, the out-of-state

accident and litigation is a distinction without a difference.

E. Substantive Claims

Roche has asserted the same individual claims on behalf of a putative

class. At the pre-certification stage, I find no need to analyze the class-claims

differently. See Bass v. Butler, 116 F. App’x 376, 385 (3d Cir. 2004)

(dismissing class claim where individual claims had been dismissed pre-

certification).

1. Violation of N.J.S.A. § 2A:15-97 and

N.J.A.C. § 11:4-42.10 as to Aetna and

Rawlings (Counts I, XIII, XIX)

Neither party argues that the Statute or the Regulation provide an explicit

private cause of action, so the question is whether the Statute or Regulation

confer an implied private cause of action. They do not.

“As a general principle, a plaintiff cannot bring claims to enforce a statute

if it does not have a private right of action.” Zanetich v. Wal-Mart Stores E.,

Inc., 22–05387, 2023 WL 3644813, at *4 (D.N.J. May 25, 2023), aff’d, 123 F.4th

128 (3d Cir. 2024). “Both the United States Supreme Court and [the New

Jersey Supreme] Court have held that a statute that does not expressly create

a private cause of action may, nonetheless, implicitly create one.” Jarrell v.

Kaul, 123 A.3d 1022, 1029 (N.J. 2015) (citations omitted). However, “New

Jersey courts have been reluctant to infer a statutory private right of action

where the Legislature has not expressly provided for such action.” R.J.

Gaydos Ins. Agency, Inc. v. Nat’l Consumer Ins. Co., 773 A.2d 1132, 1142 (N.J.

2001). Failure to include an express private right of action constitutes

“reliable evidence that the Legislature neither intended to create such a cause

of action ... nor desired the judiciary to create one by implication.” Miller v.

Zoby, 595 A.2d 1104, 1108 (N.J. Super. Ct. App. Div. 1991).

The New Jersey Supreme Court has adopted a set of factors originally

conceived by the United States Supreme Court to determine if a statute confers

an implied private right of action.

(1) plaintiff is a member of the class for whose special

benefit the statute was enacted; (2) there is any evidence

that the Legislature intended to create a private right of

action under the statute; and (3) it is consistent with the

underlying purposes of the legislative scheme to infer the

existence of such a remedy.

In re State Comm’n of Investigation, 527 A.2d 851, 853–54 (N.J. 1987) (citing

Cort v. Ash, 422 U.S. 66, 78 (1975)). “Although courts give varying weight to

each one of those factors, the primary goal has almost invariably been a search

for the underlying legislative intent.” R.J. Gaydos Ins. Agency, Inc., 773 A.2d

at 1143 (internal quotations omitted).

The first factor asks whether the Legislature enacted the statute to benefit

a special class and whether plaintiff is a member of the class. Roche argues

that “violation of the statute and regulation generate a civil remedy because

they were enacted to protect Roche[,] and affording a private cause of action is

consistent with the purpose of the legislative scheme.” (Opp’n Br. p. 37.)

Roche does not explain what special class the Legislature had in mind when it

enacted the Statute or how she fits in that class. For their part, instead of

analyzing the three factors, defendants only state in a conclusory fashion that

“no private right of action exists under either [the Statute] or [the Regulation]

so they cannot form a basis for independent causes of action or a derivative

basis for [Roche’s] other claims.” (Def’s Br. p. 36.)

As stated above, the Statute requires plaintiffs who receive benefits from

sources other than a joint tortfeasor to deduct that amount from their recovery

in any civil action. Levine, 402 F.3d at 164. The New Jersey Supreme Court

in Perreira v. Rediger determined that the intended beneficiaries of the Statute

were liability carriers. See 778 A.2d 429, 436 (N.J. 2001) (“The Legislature

had two choices: to benefit health insurers by allowing repayment of costs

expended on a tort plaintiff, or to benefit liability carriers by reducing the tort

judgment by the amount of health care benefits received. As the legislative

history reveals, the choice was made to favor liability carriers.”) Roche does

not state in what way the Legislature intended to benefit insureds through the

Statute. This factor favors finding no implied private cause of action.

The second factor asks whether there is any evidence that the Legislature

intended to create a private right of action under the statute. “This Court’s

analysis is guided by federal courts’ reluctance to interpret a state statute to

create a private right of action where a private right of action is not expressly

stated in the statute.” Zanetich, 2023 WL 3644813, at *5. Further, Courts

should be hesitant to find a private cause of action against an entity subject to

significant regulation from a State agency. See id. (citing cases). This

includes the insurance industry. See R.J. Gaydos Ins. Agency, Inc., 773 A.2d

at 1148–49 (concluding no private right of action against insurers, who are

heavily regulated by state agencies).

The Statute’s goal was to eliminate double recovery for plaintiffs in tort

actions, and to do that, the Legislature had to decide whether to benefit liability

insurance carriers or health insurers. “As the legislative history reveals, the

choice was made to favor liability carriers.” Perreira, 778 A.2d at 436; see

Legislative History Checklist, N.J.S.A. 2A:15-97, New Jersey State Library,

available at https://repo.njstatelib.org/server/api/core/bitstreams/99edd81f-

3d8b-4ce7-b674-88038e177d63/contentv (last visited Nov. 21, 2025) (compiling

statements of purpose about the Statute including, inter alia “This bill is

intended to prohibit duplicate recovery by plaintiffs”). There is no evidence in

the legislative history showing that the Legislature intended to use the Statute

to create a private right of action. This factor favors finding no implied private

right of action.

The last factor asks whether it is consistent with the underlying purposes

of the legislative scheme to infer the existence of a private cause of action.

Despite Roche’s claims that creation of a civil remedy is consistent with the

scheme of the Statute and the Regulation, it does not appear to be the case. As

with the second factor, the purpose of the Statute does not demand a private

right of action on behalf of insured parties, and that conclusion does not change

when considering the entire legislative scheme. Accordingly, the third factor

also supports not finding an implied private right of action.

The Statute and the Regulation do not create a private right of action, and

as a result, defendants’ Motion is GRANTED as to Counts I, XIII, and XIX.

2. Breach of Contract as to Aetna

(Counts II, XX)

The elements of a breach of contract claim are that the parties entered

into a contract containing certain terms, the plaintiff performed as required

while the defendant did not, and the defendant’s breach caused a loss for the

plaintiff. Goldfarb v. Solimine, 245 A.3d 570, 577 (N.J. 2021). Here,

accepting as true the allegations in the Complaint, Roche has plausibly pled a

breach of contract claim against Aetna. Roche states that defendants

breached “the insurance policy contract Aetna entered into with [p]laintiff” by

asserting liens, subrogation claims, and/or repayment demands as against

Roche’s personal injury recovery. (Compl. ¶¶ 85, 86.) Roche alleges she

suffered $86,601.72 in damages from her payment to Aetna. (Id. ¶ 87.)

Although Aetna denies having a contract with Roche, (Def’s Br. p. 39), at this

stage, the Court accepts all well-pleaded facts in the Complaint as true.

Accordingly, defendants’ motion to dismiss Counts II and XX is DENIED.

3. Breach of Duty of Good Faith and

Fair Dealing; Bad Faith; Breach of

Fiduciary Duty, Restatement § 874

as to Aetna (Counts III, V, VII, XXI,

XXV, XXVII)

“[E]very insurance contract contains an implied covenant of good faith and

fair dealing.” Price v. N.J. Mfrs. Ins. Co., 867 A.2d 1181, 1185 (N.J. 2005). To

assert a breach of the covenant under New Jersey law, a plaintiff must allege

that: “(1) the defendant act[ed] in bad faith or with a malicious motive, (2) to

deny the plaintiff some benefit of the bargain originally intended by the parties,

even if that benefit was not an express provision of the contract.” Veyhl v.

State Farm Fire & Cas. Co., 21–10112, 2021 WL 6062304, at *2 (D.N.J. Dec. 22,

2021) (citing Red Hawk Fire & Sec., LLC v. Siemens Indus. Inc., 449 F. Supp. 3d

449, 463 (D.N.J. 2020)). With insurance contracts, a claim for breach of the

implied covenant of good faith and fair dealing is “tantamount” to a claim for

“bad faith.” Id. (citing Laing v. Am. Strategic Ins. Corp., 14–1103, 2014 WL

4953250, at *2 (D.N.J. Oct. 1, 2014)).

Likewise, in the insurance context, courts analyze claims for breach of

fiduciary duty under the same umbrella of “bad faith.” In general, “[a]n

insurer only owes a fiduciary duty to an insured under ‘certain circumstances,’

such as when it is settling claims on behalf of the insured.” DeGennaro v. Am.

Bankers Ins. Co. of Fla., 737 F. App’x 631, 639 (3d Cir. 2018). “New Jersey

federal and state courts have consistently held that a fiduciary duty ‘does not

necessarily exist in a first-party [insurance] situation.’ Rather, a claim for

breach of fiduciary duty in the first-party insurance context is tantamount to a

claim for breach of the implied covenant of good faith and fair dealing.” Veyhl,

2021 WL 6062304, at *3; see also, e.g., Robeson Indus. Corp. v. Hartford Acc. &

Indem. Co., 178 F.3d 160, 168 n.10 (3d Cir. 1999) (reviewing separate claims for

“breach of fiduciary duty” and “breach of covenant of good faith and fair dealing”

as a single “bad faith” claim).

“To establish “bad faith,” the plaintiff must demonstrate the absence of a

reasonable basis for denying benefits of the policy. If the plaintiff

demonstrates the absence of a reasonable basis, he must then prove that the

defendant knew or recklessly disregarded the lack of a reasonable basis for

denying the claim.” Veyhl, 2021 WL 6062304, at *2 (internal quotations and

citations omitted).

Here, Roche has done enough to suggest that Aetna lacked a reasonable

basis to assert subrogation. Roche alleges that Aetna asserted liens and

demanded subrogation despite knowing that such action was precluded by New

Jersey state law. (Compl. ¶¶ 111, 112, 113.) Accordingly, defendants’ Motion

is DENIED as to Counts III, V, VII, XXI, XXV, and XXVII.

4. Violation of the CFA, N.J.S.A.

§ 56:8-19 (Counts IV, XXIV)

The CFA addresses “sharp practices and dealings in the marketing of

merchandise and real estate whereby the consumer could be victimized by being

lured into a purchase through fraudulent, deceptive or other similar kind of

selling or advertising practices.” Smajlaj v. Campbell Soup Co., 782

F. Supp. 2d 84, 97 (D.N.J. 2011) (citing Daaleman v. Elizabethtown Gas Co.,

390 A.2d 566, 569 (N.J. 1978)). To state a CFA claim. a plaintiff “must allege

sufficient facts to demonstrate: (1) unlawful conduct; (2) an ascertainable loss;

and (3) a causal relationship between the unlawful conduct and the

ascertainable loss.” Id. The CFA is remedial legislation “which should be

construed liberally.” Id.

Here, the parties disagree about whether Roche suffered an ascertainable

loss. Aetna argues that a denial of insurance benefits is not an ascertainable

loss. (Def’s Br. p. 39 (citing cases)). However, Aetna mischaracterizes Roche’s

allegations. Roche does not allege Aetna’s unlawful conduct was denying her

benefits. Rather, Roche argues that Aetna violated the CFA with Aetna’s

“inclusion of lien, subrogation and/or reimbursement requirements.” (Compl.

¶ 96; see also Opp’n Br. p. 44 (clarifying that “Roche’s claims do not concern

merely the denial of benefits”).)

Aetna further relies on Mattson, 124 F. Supp. 3d at 392, to argue that CFA

claims based on the Statute should be denied. (Def’s Br. pp. 39–40.)

However, the plaintiffs in Mattson failed to establish an ascertainable loss

because they had not suffered in any discernable way. See 124 F. Supp. 3d at

392 (characterizing the alleged harm as “illusory”). Conversely here, Roche

paid over $86,000 based on Aetna’s alleged unlawful conduct. (Compl. ¶ 41.)

Accordingly, defendants’ Motion is DENIED as to Counts IV and XXIV.

5. Directing or Permitting Conduct of

Another, Restatement § 877 (Counts

VI, XXVI)

Section 877(a) of the Restatement states: “For harm resulting to a third

person from the tortious conduct of another, one is subject to liability if he

orders or induces the conduct, if he knows or should know of circumstances that

would make the conduct tortious if it were his own.”

Here, plaintiff alleges that Aetna knew or should have known that New

Jersey prohibited liens, subrogation claims, and reimbursement demands by

health insurers and, with that knowledge, “retained, hired, authorized, induced

and allowed Rawlings to assert” such demands on Aetna’s behalf. (Compl.

¶¶ 106, 107.) However, plaintiff has not alleged any facts showing how Aetna

ordered or induced Rawlings to act, only that Rawlings acted as Aetna’s agent.

A simple recitation of the elements is not sufficient. Accordingly, defendants’

Motion is GRANTED as to Counts VI and XXVI, and Counts VI and XXVI are

DISMISSED.

6. Acting in Concert, Restatement

§ 876 (Counts VIII, XIV, XXX)

“The New Jersey Supreme Court has interpreted ‘aid’ and ‘abet’

consistently with the Restatement … [§] 876(b)).” Guarneri v. Buckeye Pipe

Line Servs. Co., 205 F. Supp. 3d 606, 618 (D.N.J. 2016) (citing Tarr v. Ciasulli,

853 A.2d 921 (N.J. 2004)). Under that standard, a party is liable as an aider

or abettor if a plaintiff can show that “(1) the party whom the defendant aids

perform[s] a wrongful act that causes an injury; (2) the defendant [is] generally

aware of his role as part of an overall illegal or tortious activity at the time he

provides the assistance; [and] (3) the defendant knowingly and substantially

assist[s] the principal violation.” Id. (citing Tarr, 853 A.2d at 929).

Here, the complaint fails to show how either Aetna assisted Rawlings

(Count VIII) or Rawlings assisted Aetna (Counts XIV, XXX) in committing a

tortious act. Further, the allegations are conclusory and formulaic. (See

Compl. ¶ 122 (“In asserting liens, subrogation demands and/or demands for

repayment as against [p]laintiff’s personal injury recovery, Aetna acted in

concert with, and pursuant to a common design with, Rawlings.”).)

Accordingly, defendants’ Motion is GRANTED with respect to Counts VIII, XIV,

and XXX, and these counts are DISMISSED.

7. Intentional Misrepresentation

(Counts IX, XVI, XXII)

“In order to state a claim for intentional misrepresentation under New

Jersey law, a plaintiff must allege: (1) a material misrepresentation of a

presently existing or past fact; (2) knowledge or belief by [d]efendant of its

falsity; (3) an intention that the plaintiff rely upon the fact; (4) the plaintiff’s

reasonable reliance upon it; and (5) resulting damages.” Mason v. Coca-Cola

Co., 774 F. Supp. 2d 699, 704 (D.N.J. 2011) (citing Gennari v. Weichert Co.

Realtors, 691 A.2d 350, 367 (N.J. 1997)).

Here, Roche alleges that Aetna “represented to [her] that it was entitled

to a lien, subrogation and/or reimbursement from [p]laintiff[’]s personal injury

recovery,” that Aetna should have known New Jersey law precluded such

entitlement, and that Roche relied to her detriment on Aetna’s representations

in sending the payment. (Compl. ¶¶ 126–129). Having stated all the

elements with specificity and alleged facts to plausibly support the elements,

these claims will survive. As a result, defendants’ Motion is DENIED as to

Counts IX, VXI, and XXII.

8. Conversion (Counts X, XVII, XXIII)

“[C]onversion is the intentional exercise of dominion and control over

chattel that seriously interferes with the right of another to control that

chattel.” Meisels v. Fox Rothschild LLP, 222 A.3d 649, 661 (N.J. 2020).

Black’s Law Dictionary defines “Chattel” as “[m]ovable or transferable

property,” especially “a physical object capable of manual delivery.” Chattel,

Black’s Law Dictionary (11th ed. 2019). Money qualifies as chattel for the

purposes of a conversion claim, but only if “a particular pot of money was taken

or wrongfully diverted to the defendant’s own use.” Dougherty v. Drew Univ.,

534 F. Supp. 3d. 363, 380 (D.N.J. 2021). In short, the money must be

identifiable, like a wire transfer. Id.

Here, the parties disagree as to whether Roche had a property interest in

her tort recovery. (Def’s Br. p. 44; Opp’n Br. p. 46, 47.) Such disagreement,

however, is more appropriate for summary judgment. Roche alleges that she

had a right to immediately possess the compensation she received for her

injuries and that Aetna interfered with that right. (Compl. ¶¶ 132, 133, 134.)

This is enough to survive a motion to dismiss. As a result, defendants’ Motion

is DENIED as to Counts X, XVII, and XXIII.

9. Theft by Deception, N.J.S.A.

§ 2C:20-4 (Counts XI, XVIII, XXVIII)

“Theft by deception, under N.J.S.A. 2C:20-4, provides ‘[a] person is guilty

of theft if he [1] purposely obtains [2] property of another [3] by deception.’”

State v. Geddes, A–2350–20, 2023 WL 3994328, at *3 (N.J. Super. Ct. App. Div.

June 12, 2023); see also State v. Diorio, 83 A.3d 831, 843 (N.J. 2014) (“A person

cannot be convicted of theft by deception unless he has obtained the property of

another by purposely creating a false impression.”). As can be surmised by the

inclusion of “theft,” in the title of the claim, and from this statute’s listing in the

New Jersey Code of Criminal Justice, “theft by deception” is a criminal offense

prosecuted by the state, and it does not create a private civil cause of action

enforced by the public. Accordingly, defendants’ Motion is GRANTED as to

Counts XI, XVIII, and XXVIII. Counts XI, XVIII, and XXVIII will be

DISMISSED.

10. Unjust Enrichment (Counts XII,

XV, XXIX)

Under New Jersey law, to state a claim for unjust enrichment “a plaintiff

must show both that [the] defendant received a benefit and that retention of

that benefit without payment would be unjust.” VRG Corp. v. GKN Realty

Corp., 641 A.2d 519, 526 (N.J. 1994). Unjust enrichment is a quasi-contract

theory of recovery, so when there is an express contract, there is no basis for

imposing quasi-contract relief. See Garcia v. Prudential Life Ins. Co. of Am.,

08–5756, 2009 WL 5206016, at *13 (D.N.J. Dec. 29, 2009).

Here, Roche claims that both Aetna and Rawlings benefited at Roche’s

expense “[a]s a result of the wrongful collection of monies by [d]efendants.”

(Compl. ¶¶ 141–144; 160–162.) Defendants only argue that no contract exists

between Roche and either Aetna or Rawlings. (Def’s Br. p. 39.) This ignores

that an unjust enrichment claim can only exist when there is no contract

between the parties. As such, defendants’ motion is DENIED as to Counts XII,

XV, and XXIX. However, I note that these counts will fall away if there was

an express contract. Further, Roche alleges only that she “made payment to

[d]efendants in the amount of $86,601.72,” (Compl. ¶ 41 (emphasis added))

without specifying which defendant received the payment. Upon determining

the payee—Aetna or Rawlings—the unjust enrichment claim of as to the non-

payee will likely fall away.

IV. CONCLUSION

Defendants’ Motion is GRANTED as to the following counts, which are

hereby DISMISSED: Counts I, VI, VIII, XI, XIII, XIV, XVIII, XIX, XXVI,

XXVIII, and XXX. The Motion is DENIED in all other respects. An

appropriate order will accompany this opinion.

/s/ Edward S. Kiel

EDWARD S. KIEL

UNITED STATES DISTRICT JUDGE

Date: November 24, 2025